Action brought on 7 June 2012 - UTi Worldwide and Others v Commission
(Case T-264/12)
Language of the case: English
Parties
Applicants: UTi Worldwide, Inc. (Tortola, British Virgin Islands), UTi Nederland BV (Schiphol, Netherlands) and UTI Worldwide (UK) Ltd (Reading, United Kingdom) (represented by:
P. Kirch, lawyer)
Defendant: European Commission
Form of order sought
Annul Article 1 and 2 of Commission Decision C (2012) 1959 Final of 28 March 2012, in Case COMP/39.462 - "Freight Forwarders" - insofar as it relates to the applicants;
In the alternative, annul Article 2 of the Decision of 28 March 2012, insofar as it concerns the applicants, and set aside or reduce the amount of the fine accordingly;
Ensure the Court's finding and ruling on UTi Nederland and UTi UK fully apply to UTi Worldwide Inc., as parent company not involved in the facts of the case leading to the Decision but liable for its subsidiaries pursuant to the terms of the Decision; and
Order the defendant to pay all costs.
Pleas in law and main arguments
In support of the action, the applicants rely on two pleas in law, each of which has three branches.
First plea in law, in support of the first part of the form of order sought, alleging that the applicants did not infringe Article 101 TFEU and Article 53 of the EEA Agreements:
The Commission committed manifest error by including applicants in the alleged Automated Manifest System ("AMS") cartel and failing to properly assess facts and conduct a complete and correct analysis of its own evidentiary record, as:
The Commission incorrectly analyses facts in its own evidentiary record ;
The Decision misstates the scope of the discussion held in the framework of the association Freight Forward International ("FFI");
FFI members did not agree on a price or a range of prices;
Applicants and other forwarders selectively imposed AMS fees for competitive advantage;
The Commission ignored clear evidence that applicants' membership in FFI did not demonstrate applicants' involvement in the AMS fee cartel; and
The Commission ignores clear evidence that applicants independently set their AMS fee based on air cargo carriers' AMS fees and other factors of market pricing.
The Commission fails to establish that applicants participated in any agreement to distort competition within the meaning of Article 101(1) TFEU and Article 53 of the EEA Agreement, as:
Applicants' presence at six FFI meetings and conference call does not meet the legal standard for violation of Article 101 TFEU; and
The Decision contains no evidence that applicants participated in any bilateral or multilateral discussions outside of FFI regarding the AMS fee.
The AMS fee had no "appreciable effect " on competition, as :
The AMS fee was a minuscule component of the total shipment price; and
The AMS fee was inevitable based on the air cargo carriers' decision to introduce a fee and thus had no appreciable effect on the market.
Second plea in law, in support of the second part of the form of order sought alleging that that the Commission's Decision on the fine violates Article 23(3) of Council Regulation (EC) No 1/20032, the Commission's own guideline on fines, and the principle of proportionality and includes a calculation error:
The Commission fails to apply the concept of "gravity" within the meaning of Article 23(3) of Council Regulation (EC) No 1/2003 and Article 19 and 20 of the guidelines on fines, as:
There was absence of any effective involvement of applicants in the alleged infringement ;
There was absence of effective implementation of the alleged infringement; and
There was absence of individualisation of the actions of applicants with regard to the overall behaviour of all undertakings concerned.
The Commission has violated the principle of proportionality, as :
The application of the 16% rate is disproportionate with regard to the law and the facts of the case ;
The calculations based on the entire market in freight forwarding services is disproportionate;
The application of the duration coefficient is disproportionate; and
The inclusion of an additional amount in the basic amount is disproportionate.
The Commission's fine imposed on UTi Worldwide Inc., individually as parent company, is artificially and erroneously inflated by the Commission's mathematical formula.
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1 - Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1)
2 - Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2)