JUDGMENT OF THE COURT (Fifth Chamber)
26 February 2026 (*)
( Appeal – Competition – Agreements, decisions and concerted practices – Market for airfreight – Decision of the European Commission finding an infringement of Article 101 TFEU, Article 53 of the Agreement on the European Economic Area and Article 8 of the Agreement between the European Community and Switzerland on Air Transport – Coordination of elements of the price of air freight services (fuel surcharge, security surcharge and refusal to pay commission on surcharges) – Inbound freight services – Territorial jurisdiction of the Commission – Qualified effects – Single and continuous infringement )
In Case C‑380/22 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 9 June 2022,
Deutsche Lufthansa AG, established in Cologne (Germany),
Lufthansa Cargo AG, established in Frankfurt am Main (Germany),
Swiss International Air Lines AG, established in Basel (Switzerland),
represented initially by R. Benditz and S. Völcker, Rechtsanwälte, and subsequently by M. Esser, Rechtsanwalt,
appellants,
the other party to the proceedings being:
European Commission, represented by P. Berghe and A. Dawes, acting as Agents,
defendant at first instance,
THE COURT (Fifth Chamber),
composed of I. Jarukaitis (Rapporteur), President of the Fourth Chamber, acting as President of the Fifth Chamber, E. Regan and D. Gratsias, Judges,
Advocate General: A. Rantos,
Registrar: R. Stefanova-Kamisheva, Administrator,
having regard to the written procedure and further to the hearing on 11 April 2024,
after hearing the Opinion of the Advocate General at the sitting on 5 September 2024,
gives the following
Judgment
1        By their appeal, Deutsche Lufthansa AG, Lufthansa Cargo AG and Swiss International Air Lines AG (together, ‘Deutsche Lufthansa and Others’) seek to have set aside the judgment of the General Court of the European Union of 30 March 2022, Deutsche Lufthansa and Others v Commission (T‑342/17, EU:T:2022:183; ‘the judgment under appeal’), by which the General Court dismissed their action seeking annulment of Article 1 of Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case AT.39258 – Airfreight) (‘the decision at issue’), in so far as it concerns the appellants.
Legal context
The EC-Switzerland Air Transport Agreement
2        The Agreement between the European Community and the Swiss Confederation on Air Transport, signed in Luxembourg on 21 June 1999 and approved on behalf of the European Community by Decision 2002/309/EC, Euratom of the Council, and of the Commission as regards the Agreement on Scientific and Technological Cooperation, of 4 April 2002, on the conclusion of seven Agreements with the Swiss Confederation (OJ 2002 L 114, p. 1) (‘the EC-Switzerland Air Transport Agreement’), entered into force on 1 June 2002. Articles 8 and 9 of that agreement correspond, mutatis mutandis, to Articles 101 and 102 TFEU, respectively.
3        Under Article 11 of that agreement:
‘1.      The provisions of Articles 8 and 9 shall be applied … by the Community institutions in accordance with Community legislation as set out in the Annex to this Agreement, taking into account the need for close cooperation between the Community institutions and the Swiss authorities.
2.      The Swiss authorities shall rule, in accordance with the provisions of Articles 8 and 9, on the admissibility of all agreements, decisions and concerted practices … concerning routes between Switzerland and third countries.’
4        Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1) was made applicable under that agreement, with effect from 5 December 2007, by Decision No 1/2007 of the joint Community/Switzerland Air Transport Committee set up under the Agreement between the European Community and the Swiss Confederation on Air Transport of 5 December 2007 replacing the Annex to the Agreement between the European Community and the Swiss Confederation on Air Transport (OJ 2008 L 34, p. 19). On that date, Regulation No 1/2003 replaced Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ 1987 L 374, p. 1), which appeared in the annex to the EC-Switzerland Air Transport Agreement since the latter’s entry into force.
The FEU Treaty
5        Article 101(1) TFEU provides:
‘The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:
(a)      directly or indirectly fix purchase or selling prices or any other trading conditions,
(b)      limit or control production, markets, technical development, or investment;
(c)      share markets or sources of supply;
…’
The EEA Agreement
6        Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3; ‘the EEA Agreement’), corresponds, mutatis mutandis, to Article 101 TFEU.
7        Regulation No 1/2003, as amended by Council Regulation (EC) No 411/2004 of 26 February 2004 (OJ 2004 L 68, p. 1), was incorporated into the EEA Agreement by, first, Decision of the EEA Joint Committee No 130/2004 of 24 September 2004 amending Annex XIV (Competition), Protocol 21 (On the implementation of competition rules applicable to undertakings) and Protocol 23 (Concerning the cooperation between the surveillance authorities) to the EEA Agreement (OJ 2005 L 64, p. 57), which entered into force on 19 May 2005, and, second, Decision of the EEA Joint Committee No 40/2005 of 11 March 2005 amending Annex XIII (Transport) and Protocol 21 (on the implementation of competition rules applicable to undertakings) to the EEA Agreement (OJ 2005 L 198, p. 38), which entered into force on the same day.
Regulation No 1/2003
8        Article 16(1) of Regulation No 1/2003 provides:
‘When national courts rule on agreements, decisions or practices under Article [101] or Article [102 TFEU] which are already the subject of a [European] Commission decision, they cannot take decisions running counter to the decision adopted by the Commission. They must also avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated. To that effect, the national court may assess whether it is necessary to stay its proceedings. This obligation is without prejudice to the rights and obligations under Article [267 TFEU].’
9        Article 23(2) and (3) of that regulation provides:
‘2.      The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:
(a)      they infringe Article [101] or [102 TFEU]; or
…
For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year.
…
3.      In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’
10      Article 32(c) of Regulation No 1/2003 provided that the latter was not to apply to ‘air transport between Community airports and third countries’.
11      That provision was deleted, with effect from 1 May 2004, by Article 3 of Regulation No 411/2004.
Background to the dispute and the decision at issue
12      The background to the dispute and the decision at issue, as set out in paragraphs 1 to 50 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.
13      Deutsche Lufthansa and Others are part of the Lufthansa Group, which carries on activities in the market for airfreight services.
14      In the freight sector, airlines provide for the carriage of cargo by air (‘the carriers’). As a general rule, carriers supply freight services to freight forwarders, who arrange the transport of that cargo on behalf of shippers. In return, those freight forwarders pay those carriers a price consisting, on the one hand, of rates calculated on a per kilogram basis and, on the other hand, of various surcharges.
The administrative procedure
15      On 7 December 2005, the Commission received an application for immunity under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) lodged by Deutsche Lufthansa and Others. The application alleged that anticompetitive contacts were being maintained between a number of carriers with regard to elements of the price of services provided in the market for airfreight services, namely the introduction of ‘fuel’ and ‘security’ surcharges, and to the refusal of those carriers to pay the freight forwarders a commission on the surcharges (‘the refusal to pay commission’).
16      On 14 and 15 February 2006, the Commission carried out unannounced inspections at the premises of a number of carriers.
17      Following those inspections, a number of carriers, including Deutsche Lufthansa and Others, submitted an application for immunity under the notice on immunity from fines and reduction of fines in cartel cases, referred to in paragraph 15 of the present judgment.
18      On 19 December 2007, the Commission addressed a statement of objections to 27 carriers, including Deutsche Lufthansa and Others, all of which subsequently submitted written observations. An oral hearing was held from 30 June to 4 July 2008.
The initial decision
19      On 9 November 2010, the Commission adopted Decision C(2010) 7694 final relating to a proceeding under Article 101 [TFEU], Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39258 – Airfreight) (‘the initial decision’). That decision was addressed to 21 carriers, which included Deutsche Lufthansa and Others.
20      That decision stated, in its grounds, that the incriminated carriers had coordinated their behaviour as regards the pricing of freight services, by reaching an agreement on the fuel surcharge, the security surcharge and the refusal to pay commission, and had, in doing so, participated in a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement, covering the territory of the European Economic Area (EEA) and Switzerland.
The judgments of 16 December 2015
21      By judgment of 16 December 2015, Deutsche Lufthansa and Others v Commission (T‑46/11, EU:T:2015:987), the General Court annulled Articles 1 to 4 of the initial decision in so far as they concerned Deutsche Lufthansa and Others. By 12 other judgments of the same day, the General Court also annulled that decision, in whole or in part, in so far as it concerned 12 other carriers or groups of carriers.
22      The General Court found that that decision was vitiated by a defective statement of reasons.
The decision at issue
23      On 20 May 2016, the Commission sent a letter to the carriers referred to in the initial decision and which had brought an action against the latter before the General Court to inform them of its intention again to adopt a decision in which it would find that they had participated in a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement on all of the routes referred to in that initial decision. Those carriers were given a period of one month in which to submit their observations. All availed themselves of that opportunity.
24      On 17 March 2017, the Commission adopted the decision at issue, which was addressed to 19 carriers, including Deutsche Lufthansa and Others.
25      The decision at issue states that the incriminated carriers coordinated their behaviour as regards the pricing of freight services worldwide, by reaching an agreement on the fuel surcharge, the security surcharge and the refusal to pay commission (‘the cartel at issue’), and had, in doing so, participated in a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement.
26      In Section 4 of that decision, headed ‘Description of the events’, the Commission stated, inter alia, that the investigations had uncovered a worldwide cartel based on a network of bilateral and multilateral contacts over a long period of time among competitors regarding the conduct which they had decided on, intended to adopt, or contemplated adopting with regard to various elements of the charges for freight services referred to in the preceding paragraph. It stated that the common objective of that network of contacts was to coordinate competitors’ pricing behaviour or to reduce uncertainty with regard to their pricing policies. It then described the contacts concerning the fuel surcharge, the security surcharge and the refusal to pay commission, respectively, and assessed the factual evidence concerning (i) the cartel at issue as a whole and (ii) each of the addressees of that decision.
27      In Section 5 of the decision at issue, headed ‘The application of the relevant competition rules’, the Commission applied Article 101 TFEU to the facts of the case, while stating that the references to that article were also to be read as references to Article 53 of the EEA Agreement and to Article 8 of the EC-Switzerland Air Transport Agreement, since those provisions apply mutatis mutandis, unless otherwise provided.
28      In that connection, as regards its jurisdiction, the Commission examined the limits of its territorial and temporal jurisdiction to find and penalise an infringement of the competition rules in the case at hand.
29      First, in recitals 822 to 832 of the decision at issue, which make up Subsection 5.2 of that decision, headed ‘Jurisdiction of the Commission’, the Commission observed, in essence, that it would not apply, first, Article 101 TFEU to agreements and practices prior to 1 May 2004 concerning routes between airports within the European Union and airports outside the EEA (‘EU-third country routes’); next, Article 53 of the EEA Agreement to agreements and practices prior to 19 May 2005 concerning EU-third country routes and routes between airports in countries that are Contracting Parties of the EEA Agreement but are not EU Member States and airports in third countries (‘non-EU EEA-third country routes’); and, lastly, Article 8 of the EC-Switzerland Air Transport Agreement to agreements and practices prior to 1 June 2002 as regards routes between airports within the European Union and airports in Switzerland (‘EU-Switzerland routes’). It stated, in recital 832 of that decision, that the latter decision did ‘not purport to find an infringement of Article 8 of the [EC-Switzerland Air Transport Agreement] concerning freight services on routes between Switzerland and third countries’.
30      Second, in recitals 1036 to 1046 of the decision at issue, under the heading ‘The applicability of Article 101 [TFEU] and Article 53 of the EEA Agreement to inbound routes’, the Commission set out the grounds on which it rejected the arguments, put forward by various incriminated carriers, that it had exceeded the limits of its territorial jurisdiction under the rules of public international law by finding and penalising an infringement of those two provisions on routes from third countries to the EEA (‘inbound routes’ and, as regards freight services offered on those routes, ‘inbound freight services’).
31      In particular, in recital 1045 of that decision, the Commission stated that anticompetitive practices with regard to inbound freight services were ‘liable to have immediate, substantial and foreseeable effects within the EU [and the] EEA, as the increased costs of air transport to the EEA, and consequently higher prices of imported goods are, by their very nature liable to have effects on consumers in the EEA’. It added that, in the case at hand, those practices were liable to have such effects on the provision of airfreight services by other carriers within the EEA, between the different hubs in the EEA used by carriers from third countries and the airports of destination of those shipments in the EEA, to which the third-country carrier did not fly.
32      Furthermore, in recital 1046 of that decision, the Commission noted that the cartel at issue was ‘implemented globally’, that the cartel arrangements concerning inbound routes formed an integral part of the single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement, and that the uniform application of the surcharges on a worldwide scale was a key element of that cartel.
33      Subsection 5.3 of the decision at issue, relating to the application in the case at hand of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement, comprises recitals 833 to 1052 of that decision. First, in recital 846 of that decision, the Commission found that the incriminated carriers had coordinated their conduct or influenced price setting, ‘ultimately amounting to price fixing with regard to’ the fuel surcharge, the security surcharge and the payment of commission on surcharges to freight forwarders. In recital 861 of that decision, the Commission found that the ‘overall scheme to coordinate the pricing behaviour for [freight] services’ revealed by its investigation demonstrated the existence of a ‘complex infringement consisting of various actions which [could] be either classified as an agreement or concerted practice, within which the competitors knowingly substituted practical cooperation between them for the risks of competition’.
34      Second, in recital 869 of the decision at issue, the Commission considered that ‘the conduct in question constitute[d] a single and continuous infringement of Article 101 [TFEU]’, stating, in recitals 870 to 902 of the decision, that the arrangements in question pursued a single anticompetitive aim of distorting competition in the freight sector within the EEA, concerned the provision of freight services and the pricing thereof, concerned the same undertakings, were of a single and continuous nature, and related to three elements, namely the fuel surcharge, the security surcharge and the refusal to pay commission. In that context, the Commission stated, in recital 881 of that decision, that Lufthansa Cargo was involved in those three elements.
35      Third, in recital 903 of the decision at issue, the Commission found that the anticompetitive conduct in question had the object of restricting competition at least in the European Union, the EEA and Switzerland. In recital 917 of that decision, the Commission added, in essence, that there was, therefore, no need to take into account the actual effects of that conduct.
36      Fourth, in recitals 972 to 1021 of the decision at issue, the Commission examined the regulatory systems in place in seven third countries, which several of the incriminated carriers maintained had required them to collude on surcharges, thereby impeding the application of the relevant competition rules. The Commission considered that those carriers had failed to prove that they had acted under duress from those third countries.
37      Fifth, in recitals 1024 to 1035 of the decision at issue, the Commission found that the single and continuous infringement was likely to have an appreciable effect on trade between Member States, between Contracting Parties of the EEA Agreement and between contracting parties to the EC-Switzerland Air Transport Agreement.
38      Section 7 of the decision at issue, headed ‘Duration of the infringement’, contains recitals 1146 to 1169 of that decision. As is apparent from recital 1146 of that decision, the Commission found that the cartel at issue had started on 7 December 1999 and lasted until 14 February 2006. In recital 1146, it stated that that cartel had infringed:
–        Article 101 TFEU, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the European Union;
–        Article 101 TFEU, from 1 May 2004 to 14 February 2006, as regards air transport on EU-third country routes;
–        Article 53 of the EEA Agreement, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the EEA;
–        Article 53 of the EEA Agreement, from 19 May 2005 to 14 February 2006, as regards air transport on non-EU EEA-third country routes;
–        Article 8 of the EC-Switzerland Air Transport Agreement, from 1 June 2002 to 14 February 2006, as regards air transport on EU-Switzerland routes.
39      In recital 1169 of that decision, the Commission found that the duration of the infringement extended, for Deutsche Lufthansa and Lufthansa Cargo, from 14 December 1999 to 7 December 2005 and, in the case of Swiss International Air Lines, from 2 April 2002 to 7 December 2005.
40      Articles 1, 3 and 4 of the operative part of the decision at issue are worded as follows:
‘Article 1
By coordinating their pricing behaviour in the provision of airfreight services on a global basis with respect to the fuel surcharge, the security surcharge and the payment of commission payable on surcharges, the following undertakings have committed the following single and continuous infringement of Article 101 [TFEU], Article 53 of [the EEA Agreement] and Article 8 of [the EC-Switzerland Air Transport Agreement] as regards the following routes and for the following periods.
(1)      The following undertakings have infringed Article 101 [TFEU] and Article 53 of [the] EEA Agreement as regards routes between airports within the EEA, for the following periods:
…
(k)      [Lufthansa Cargo] from 14 December 1999 until 7 December 2005;
(l)      [Deutsche Lufthansa] from 14 December 1999 until 7 December 2005;
(m)      [Swiss International Air Lines] from 2 April 2002 to 7 December 2005;
…
(2)      The following undertakings infringed Article 101 [TFEU] as regards [EU-third country routes], for the following periods:
…
(k)      [Lufthansa Cargo] from 1 May 2004 until 7 December 2005;
(l)      [Deutsche Lufthansa] from 1 May 2004 until 7 December 2005;
(m)      [Swiss International Air Lines] from 1 May 2004 until 7 December 2005;
…
(3)      The following undertakings infringed Article 53 of the EEA Agreement as regards [non-EU EEA-third country routes], for the following periods:
…
(k)      [Lufthansa Cargo] from 19 May 2005 until 7 December 2005;
(l)      [Deutsche Lufthansa] from 19 May 2005 until 7 December 2005;
(m)      [Swiss International Air Lines] from 19 May 2005 until 7 December 2005;
…
(4)      The following undertakings infringed Article 8 of the [EC-Switzerland Air Transport Agreement] as regards [EU-Switzerland routes], for the following periods:
…
(k)      [Lufthansa Cargo] from 1 June 2002 until 7 December 2005;
(l)      [Deutsche Lufthansa] from 1 June 2002 until 7 December 2005;
(m)      [Swiss International Air Lines] from 1 June 2002 until 7 December 2005;
…
Article 3
For the single and continuous infringement referred to in Article 1 …, the following fines are imposed:
…
(j)      [Lufthansa Cargo] and [Deutsche Lufthansa] jointly and severally: EUR 0;
(k)      [Swiss International Air Lines]: EUR 0;
(l)      [Swiss International Air Lines and Deutsche Lufthansa] jointly and severally: EUR 0;
…
Article 4
The undertakings listed in Article 1 shall immediately bring to an end the single and continuous infringement referred to in that Article in so far as they have not already done so.
They shall also refrain from repeating any act or conduct having the same or similar object or effect.’
The procedure before the General Court and the judgment under appeal
41      By application lodged at the Registry of the General Court on 30 May 2017, Deutsche Lufthansa and Others brought an action seeking annulment of Article 1 of the decision at issue, in so far as that article concerns them.
42      In support of that action, the appellants relied on five pleas in law.
43      The first part of the fifth plea alleged a lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services.
44      In the judgment under appeal, the General Court dismissed the action in its entirety.
Forms of order sought by the parties to the appeal
45      By their appeal, Deutsche Lufthansa and Others claim that the Court of Justice should:
–        set aside the judgment under appeal;
–        annul the decision at issue in whole or in part;
–        in the alternative, refer the case back to the General Court, and
–        order the Commission to pay the costs.
46      The Commission contends that the Court of Justice should, principally, dismiss the appeal and order the appellants to pay the costs and, in the alternative, if the appeal is upheld, refer the case back to the General Court.
The appeal
47      In support of their appeal, Deutsche Lufthansa and Others put forward a single ground of appeal, which concerns the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services.
48      That ground of appeal comprises four parts. By the first part, the appellants claim that the General Court erred in law by not requiring the Commission to demonstrate a restriction of competition within the internal market. By the second part, Deutsche Lufthansa and Others criticise the General Court for having held that the Commission was entitled to take into account the effects of the single and continuous infringement as a whole. By the third part, they criticise the General Court for substituting its own assessment of the qualified effects of the anticompetitive practices in the European Union (‘qualified effects’) for that carried out by the Commission. Lastly, by the fourth part, they submit that the General Court erred in law in finding that there were immediate, substantial and foreseeable effects.
49      It is appropriate to examine in the first place the first part and then the third and fourth parts, which concern the effects of the coordination relating to inbound freight services viewed in isolation. The second part, which relates to the effects of the single and continuous infringement as a whole will be examined last.
The first part, alleging an error of law in not requiring the Commission to demonstrate a restriction of competition within the internal market
Arguments of the parties
50      By the first part of their single ground of appeal, Deutsche Lufthansa and Others claim that the General Court erred in law by assessing the Commission’s jurisdiction solely in the light of public international law and by stating that the legal conditions for the application of Article 101(1) TFEU to conduct involving price coordination on markets outside the European Union could be satisfied solely on the basis of the qualified effects test, without it being necessary to assess whether the conduct at issue had as its object or effect the restriction of competition within the internal market.
51      Establishing the Commission’s jurisdiction under public international law is a necessary but not sufficient condition to apply Article 101 TFEU in cases with an extraterritorial angle. Accordingly, the qualified effects test does not constitute a relevant test for meeting the jurisdictional condition laid down in Article 101(1) TFEU, in particular as regards a restriction of competition by object.
52      Deutsche Lufthansa and Others further submit that price coordination on markets outside the EEA has no inherent effect on the functioning of the internal market.
53      It follows from the case-law resulting, inter alia, from the judgments of 14 July 1972, Imperial Chemical Industries v Commission (48/69, EU:C:1972:70), and of 31 March 1993, Ahlström Osakeyhtiö and Others v Commission (C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120), that the participants in the alleged cartel must compete as regards direct sales to customers established in the internal market, which is not the case as regards the conduct at issue on inbound routes, since customers are freight forwarders or, exceptionally, shippers, established at the point of departure.
54      It is also apparent from the case-law that, in order to assess whether conduct may be classified as a restriction of competition under Article 101(1) TFEU, it is necessary to examine whether that conduct has the effect of restricting competition within the internal market by means of an analysis of its anticompetitive effects.
55      Neither the Commission nor the General Court carried out such an analysis and the superficial assessment of the effects, carried out by the General Court in the context of the examination of the qualified effects test, does not make it possible to remedy such an omission.
56      First, the General Court was wrong to state, in paragraph 106 of the judgment under appeal, that an analysis of anticompetitive effects is not required ‘where conduct has been found by the Commission, as in the present case, to reveal a degree of harmfulness to competition in the internal market or within the EEA such that it could be classified as a restriction of competition “by object” within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement’.
57      Second, contrary to what is stated in the judgment under appeal, the wording of Article 101(1) TFEU makes clear that the relevant effects under that provision are those ‘on competition within the internal market’, not the potentially higher prices within the market that might result indirectly from a restriction of competition outside that market.
58      Third, the demonstration of anticompetitive effects requires a substantiated analysis concerning a properly defined product market and geographic market, consideration of the relevant economic and legal context and identification of the correct counterfactual scenario. By contrast, the superficial assessment of the qualified effects carried out in the judgment under appeal does not satisfy any of those requirements.
59      Fourth, the finding of a restriction of competition between freight forwarders amounted to an error of law. First of all, that finding does not follow from the decision at issue and, therefore, constitutes a substitution, by the General Court, of its own reasoning for that of the Commission. Next, given that the Commission specifically refused to base the decision at issue on the anticompetitive effects of the conduct at issue, the General Court relied on a legal basis other than that adopted by the Commission in the decision at issue. Lastly, in the absence of any investigation by the Commission or the General Court as to the actual functioning of the freight forwarders’ market, there is no factual basis for concluding that there would be an effect on competition between those intermediaries, who remained free to set their prices and to internalise the increase in rates or commission rather than pass those increases on to shippers.
60      The Commission contends that the first part of the single ground of appeal is based on a confusion between the territorial scope of Article 101 TFEU and the concept of ‘restriction of competition “by object”’ and that it must be rejected in its entirety.
Findings of the Court
61      In the first place, it should be noted that, as Deutsche Lufthansa and Others submit, the General Court stated, in paragraph 106 of the judgment under appeal, that where conduct has been found by the Commission, as in the case at hand, to reveal a degree of harmfulness to competition in the internal market or within the EEA such that it could be classified as a restriction of competition ‘by object’ within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement, the application of the qualified effects test cannot require the demonstration of the actual effects which classification of conduct as a restriction of competition ‘by effect’ within the meaning of those provisions presupposes.
62      Similarly, it stated, in paragraph 110 of that judgment, that interpreting the qualified effects test, as Deutsche Lufthansa and Others appeared to advocate, as requiring proof of the actual effects of the conduct at issue even where there is a restriction of competition ‘by object’, would amount to making the Commission’s jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement subject to a condition which has no basis in the wording of those provisions.
63      The General Court inferred, in paragraph 111 of that judgment, that Deutsche Lufthansa and Others could neither (i) validly claim that the Commission had erred in finding that the qualified effects test was satisfied, even though it had stated, in recitals 917, 1190 and 1277 of the decision at issue, that it was not required to make an assessment of the anticompetitive effects of the conduct at issue in the light of the anticompetitive object of that conduct, nor (ii) deduce from those recitals that the Commission had not carried out any analysis of the effects produced by that conduct in the internal market or within the EEA for the purposes of applying that test.
64      However, as the grounds set out in the second place in paragraph 111 already show, it may not be inferred from those grounds that, in order to establish that the qualified effects test was satisfied in the present case, the General Court considered that it was sufficient that the cartel at issue could be classified as a restriction of competition ‘by object’.
65      It is in fact clear from an overall reading of paragraphs 102 to 119 of the judgment under appeal that, in the disputed paragraphs, the General Court merely concerned itself with rejecting the line of argument, summarised in paragraph 89 of the judgment under appeal, which Deutsche Lufthansa and Others had submitted to it. Thus, in those paragraphs, the General Court set out the reasons why the fact that, in the grounds of the decision at issue relating, in recital 917 of that decision, to the classification of the restriction of competition at issue and, in recitals 1190 and 1277 thereof, to the calculation of the fine, the Commission had indicated that the need to demonstrate actual anticompetitive effects was not required, given that the anticompetitive object of the conduct alleged had been established, did not in any way indicate that the Commission had, on account of that anticompetitive object, failed to assess whether that conduct had produced the qualified effects required to establish its jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services.
66      On the one hand, by essentially replying that the qualified effects test, which serves as the basis of the Commission’s extraterritorial jurisdiction, is separate from the question whether the cartel at issue can be classified as a restriction of competition, within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement, the General Court did not err in law. As the Advocate General also observes in point 42 of his Opinion, the qualified effects test, which can serve as the basis under public international law for the extraterritorial application, by the Commission, of EU and EEA competition rules under public international law, is not the same as the substantive test relating to the restriction of competition, by object or by effect, within the internal market of the European Union or the EEA, to which the Commission’s jurisdiction to find and penalise, under EU law, an infringement of those competition rules is subject.
67      On the other hand, the General Court’s analysis seeking to determine whether the Commission had correctly considered that the qualified effects test had been satisfied in the case at hand is set out in paragraphs 98 to 162 of the judgment under appeal concerning the coordination in relation to inbound freight services taken in isolation, and in paragraphs 163 to 173 concerning the single and continuous infringement taken as a whole.
68      In those circumstances, Deutsche Lufthansa and Others misread the judgment under appeal when they claim that the General Court considered that it was possible, for the purpose of establishing, on the basis of the qualified effects test, the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to conduct adopted outside the territory of the EEA, to avoid demonstrating such effects where that conduct can be classified as a restriction of competition by object. The line of argument set out in paragraph 56 of the present judgment must, accordingly, be rejected as unfounded.
69      In the second place, the line of argument put forward by Deutsche Lufthansa and Others that the General Court substituted the qualified effects test under public international law for the substantive test relating to a restriction of competition, by object or by effect, within the internal market of the European Union or the EEA is also based on a misreading of the judgment under appeal.
70      As is apparent from paragraph 106 of the judgment under appeal, not only did the General Court find that the Commission had established to the requisite legal standard its jurisdiction under public international law on the basis of the qualified effects test, but it also found that the Commission had considered that the conduct at issue had to be classified as a restriction of competition ‘by object’. The General Court therefore did not consider that the qualified effects test replaced the condition relating to the existence of a restriction of competition, by object or by effect, to which the Commission’s power to find and to penalise, under EU law, an infringement of the competition rules is subject.
71      In the third place, Deutsche Lufthansa and Others are also wrong to claim that the General Court did not analyse to the requisite legal standard the effects of the conduct at issue in the context of the examination of the qualified effects test.
72      In that regard, it should be recalled that the qualified effects test, like the implementation test, pursues the objective of preventing conduct which, while not adopted within the European Union – or, as the case may be, within the EEA – has anticompetitive effects ‘liable’ to have an impact on the EU or EEA markets. Furthermore, it is sufficient that the conduct at issue be ‘liable’ to have an immediate effect in the European Union or in the EEA in order for the requirement of immediacy to be satisfied (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 45, 49, 51 and 52).
73      Thus, in order to establish that the qualified effects test has been satisfied, the Commission must establish that the practices concerned have foreseeable, immediate and substantial effects in the European Union or, as in the present case, in the EEA, which criteria the General Court recalled, moreover, in paragraphs 100 and 122 of the judgment under appeal.
74      Contrary to what Deutsche Lufthansa and Others submit by their line of argument set out in paragraph 54 of the present judgment, the identification of qualified effects in the European Union or in the EEA of conduct liable to restrict competition for the purposes of determining jurisdiction for the extraterritorial application of EU and EEA competition rules in the light of public international law is not to be confused with the question whether such conduct falls within the prohibition laid down in Article 101(1) TFEU and Article 53(1) of the EEA Agreement and, therefore, may be penalised by the Commission, only the latter question requiring it to be established that that conduct has as its object or effect the restriction of competition within the internal market or the EEA and that it is capable of affecting trade between the Member States or the contracting parties to that agreement.
75      Consequently, the line of argument put forward by Deutsche Lufthansa and Others that the General Court did not assess whether the condition laid down in Article 101(1) TFEU and Article 53(1) of the EEA Agreement, relating to a restriction of competition ‘by object’ or ‘by effect’, was satisfied in the present case, is ineffective for the purposes of criticising the Commission’s jurisdiction with regard to conduct relating to inbound routes.
76      In the fourth place, in so far as, by their line of argument, Deutsche Lufthansa and Others claim that the demonstration of anticompetitive effects requires an analysis supported by evidence concerning the relevant product market and geographic market, the taking into account of the relevant economic and legal context and the identification of the correct counterfactual scenario, it should be noted that, for the reasons set out in paragraph 74 of the present judgment, the demonstration of qualified effects for the purposes of determining the Commission’s jurisdiction does not follow the same evidentiary regime as that applicable to demonstrating the existence of a restriction of competition by effect within the meaning of Article 101(1) TFEU. That argument must therefore be rejected.
77      In the fifth place, in so far as, by their line of argument directed against paragraph 118 of the judgment under appeal, Deutsche Lufthansa and Others dispute the existence of a restriction of competition between freight forwarders, it should be recalled that, in accordance with the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is to be limited to points of law. The General Court alone has jurisdiction to establish and assess the relevant facts and to evaluate the evidence. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. The assessment of those facts and that evidence does not therefore constitute, save in the case of their distortion, a question of law subject, as such, to review by the Court of Justice in the context of an appeal (see, to that effect, judgments of 28 May 1998, Deere v Commission, C‑7/95 P, EU:C:1998:256, paragraphs 21 and 22, and of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 50 and the case-law cited).
78      In the present case, Deutsche Lufthansa and Others claim, in essence, that the conduct at issue affected only competition between the airlines in so far as freight forwarders remained free to set their prices and that, in the absence of an investigation into the conditions governing the functioning of the freight forwarders’ market, it was not possible to conclude that there was an effect on competition between them.
79      In so doing, Deutsche Lufthansa and Others dispute the General Court’s assessment of the facts and evidence in paragraphs 115 to 119 of the judgment under appeal, asking the Court of Justice to substitute its own assessment of the existence of competition between freight forwarders for that carried out by the General Court in its analysis. Since no distortion of the facts or evidence submitted to the General Court has been alleged in the present case, that line of argument must be rejected as inadmissible.
80      Furthermore, in so far as, by their arguments, Deutsche Lufthansa and Others criticise the General Court for substituting its own assessment for that of the Commission by relying on competition between freight forwarders, it must be held that that line of argument overlaps with that relied on in support of the third part of the single ground of appeal, with the result that it will be examined in the context of that part.
81      It follows from the foregoing that, subject to the latter reservation, the first part of that ground of appeal must be rejected as in part inadmissible, in part ineffective and in part unfounded.
The third part, alleging that the General Court substituted its own reasoning for that of the Commission
Arguments of the parties
82      By the third part of their single ground of appeal, Deutsche Lufthansa and Others criticise the General Court for substituting its own assessment of the qualified effects test for that of the Commission.
83      Whereas the assessment of that test carried out in the decision at issue is limited to recital 1045 thereof, in which it is stated in an incontrovertible manner that the ‘increased costs of air transport to the EEA, and consequently higher prices of imported goods, are by their very nature liable to have effects on consumers in the EEA’, without the Commission having carried out any analysis concerning the foreseeable, substantial and immediate nature of those effects, the judgment under appeal devotes more than 70 paragraphs to the assessment of those effects, thus going well beyond the reasoning of that decision, the lacunae of which the General Court sought to fill.
84      In particular, first, the General Court stated, in paragraphs 118 to 120 of the judgment under appeal, that the conduct identified in the decision at issue was liable to have effects on consumers within the internal market, in particular on the competition between freight forwarders for shippers as customers, whereas the decision at issue makes no mention of such potential effects.
85      Second, in paragraph 117 of the judgment under appeal, the General Court stated that it was ‘at the very least likely that they are established in the EEA’ whereas the decision at issue does not state either that the shippers are established in the EEA or that the infringement has an effect on those shippers, but presupposes that the contacts between the airlines were capable of increasing the price charged to freight forwarders, which could increase the price of air transport and, consequently, the price of goods imported and sold to consumers within the EEA.
86      Third, the General Court assessed the foreseeability of the effects of the conduct at issue on shippers, whereas the decision at issue does not contain any assessment relating to the foreseeability of those effects. It also found that the carriers had failed to establish that a ‘waterbed effect’ was so probable as to render the effect at issue unforeseeable, whereas the only recital of the decision at issue relating to the ‘waterbed effect’, namely recital 1190, concerns the calculation of the fine and is based on different reasoning.
87      Fourth, the General Court assessed the substantiality of the effect of the conduct at issue by reference to the duration, scope and nature of the infringement and the proportion which the surcharges represented in relation to the total price of the freight services, whereas the decision at issue does not contain such an analysis.
88      Fifth, the General Court also substituted its own analysis for that of the decision at issue by assessing whether the effects relied on were immediate despite the intervention of freight forwarders in the causal chain and the fact that the freight forwarders are based outside the EEA.
89      Sixth, the General Court was wrong to state, in paragraph 173 of the judgment under appeal, that the Commission was justified in finding, in recital 1046 of the decision at issue, that the qualified effects test was satisfied as regards the single and continuous infringement as a whole, even though that recital did not contain such a conclusion and the Commission found in that recital only that there was a worldwide cartel and a single and continuous infringement.
90      The Commission contends that the General Court did not substitute its own assessment for that of the Commission in any of the six cases referred to by Deutsche Lufthansa and Others. It infers from this that the third part of the single ground of appeal must be rejected in its entirety.
Findings of the Court
91      It is, admittedly, clear from the case-law that the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings under Articles 101 and 102 TFEU, which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the applicant at first instance and taking into account all the elements submitted by the latter. However, in the context of that review, the Courts of the European Union may in no circumstances substitute their own reasoning for that of the author of the contested act (judgment of 4 July 2024, Westfälische Drahtindustrie and Pampus Industriebeteiligungen v Commission, C‑70/23 P, EU:C:2024:580, paragraph 38 and the case-law cited).
92      The General Court therefore cannot fill, by means of its own reasoning, a gap in the reasoning in that act in such a way that its examination does not relate to any assessment carried out in that act (judgment of 18 July 2013, UEFA v Commission, C‑201/11 P, EU:C:2013:519, paragraph 65 and the case-law cited).
93      However, where the General Court merely responds to the line of argument raised before it and explains the reasoning of that act at issue, it cannot be considered that the General Court is substituting its own reasoning for that of the author of that act (see, to that effect, judgments of 12 June 2014, Deltafina v Commission, C‑578/11 P, EU:C:2014:1742, paragraph 56, and of 23 November 2023, Ryanair v Commission, C‑209/21 P, EU:C:2023:905, paragraph 49).
94      In the present case, it should be noted that, as has already been found, in essence, in paragraph 31 of the present judgment, the first ground on which the Commission relied in recital 1045 of the decision at issue in order to find that the qualified effects test was satisfied in the present case relates to the ‘increased costs of air transport to the EEA, and consequently [to] higher prices of imported goods, [which were] by their very nature liable to have effects on consumers in the EEA’, a ground to which the General Court referred as the ‘effect at issue’ (‘the effect on the prices of the imported goods’).
95      In that connection, as regards, in the first place, the complaints directed against paragraphs 115 to 120 of the judgment under appeal, it should be noted that it was on the basis of recitals 14, 17 and 70 of the decision at issue that the General Court found, in essence, that the freight forwarders, to which the carriers sold exclusively or almost exclusively their freight services, purchased freight services as intermediaries in order to consolidate them into a package of services the purpose of which was, by definition, to organise the integrated transport of goods to the territory of the EEA on behalf of shippers. The General Court inferred from that that the coordination relating to inbound routes was likely to have an impact on competition between those freight forwarders in order to attract those shippers as customers, provided that those freight forwarders passed any additional costs resulting from the cartel at issue on to the price of their service packages. It thus replied to the line of argument put forward by Deutsche Lufthansa and Others, set out in paragraph 113 of the judgment under appeal, that the additional costs which shippers might have had to pay and the higher prices of the goods imported into the EEA which might have resulted were not among the effects on which the Commission was entitled to rely for the purposes of applying the qualified effects test.
96      It was therefore on the basis of those recitals of the decision at issue and responding to the arguments submitted to it by Deutsche Lufthansa and Others that the General Court held, in paragraph 119 of the judgment under appeal, that ‘the additional cost which shippers might have had to pay and the higher prices of the goods imported into the EEA which may have resulted are among the effects produced by the conduct at issue on which the Commission was entitled to rely for the purposes of applying the qualified effects test’. It follows that the General Court did not substitute its own grounds for those of the decision at issue, but took into consideration the factual and legal elements of that decision in order to assess, taking into account, moreover, the arguments put forward before it by Deutsche Lufthansa and Others, the relevance of the effect on the prices of imported goods for the purposes of applying the qualified effects test.
97      In the second place, as regards the line of argument that the General Court substituted its own reasoning for that of the Commission by relying on the shippers being established in the EEA, it must be stated that, in paragraph 117 of the judgment under appeal, the General Court, first, relied on recital 70 of the decision at issue, which stated that shippers could be the purchasers or sellers of the transported goods, and, second, merely responded to the line of argument put forward by Deutsche Lufthansa and Others before it, alleging that the freight forwarders’ customers were not established in the EEA. Consequently, by holding, in that paragraph, that it was likely that the shippers were established in the EEA, the General Court did not substitute the grounds of the decision at issue.
98      In the third place, as regards the complaint made against paragraphs 123 to 139 of the judgment under appeal, in which the General Court assessed the condition relating to the foreseeability of the effect on the prices of imported goods, it should be observed, first, that, in those paragraphs, the General Court referred to recitals 14, 17, 70, 846, 874, 879, 899, 909, 1031, 1045, 1190, 1199 and 1208 of the decision at issue, while addressing the line of argument put forward by Deutsche Lufthansa and Others in support of their claim that that condition had not been satisfied in the case in point. It is therefore on the basis of all of those recitals and responding to the arguments submitted to it by Deutsche Lufthansa and Others that, in paragraph 139 of the judgment under appeal, the General Court found that the Commission had established the foreseeability of that effect to the requisite standard.
99      Second, it must be stated that, by its considerations relating to the lack of evidence of a ‘waterbed’ effect, set out in paragraph 128 of the judgment under appeal, the General Court merely responded to the line of argument put forward by Deutsche Lufthansa and Others before it and found that they had not produced the ‘opinions of economic experts’ which they had referred to in support of that line of argument. As regards the considerations set out in paragraph 129 of that judgment, they are expressly linked to recital 1190 of the decision at issue, and the fact that that recital appears in the grounds of that decision concerning the setting of the amount of the fine is not such as to prevent the General Court from taking it into consideration.
100    In the fourth place, as regards the substantiality of the effect on prices of imported goods, it should be noted, first, that Deutsche Lufthansa and Others’ line of argument is based on a selective reading of the judgment under appeal, limited to paragraphs 140 and 146 of that judgment. It is apparent from an overall reading of the part of that judgment devoted to that substantiality and, in particular, paragraphs 143 to 145 thereof, that the General Court assessed it by relying in particular on recitals 889, 1146, 1208, 1215 and 1217 of the decision at issue, by which the Commission found that the fuel surcharges and the security surcharges were of general application, that the single and continuous infringement consisted of the fixing of various elements of the price and, accordingly, it represented one of the most harmful restrictions of competition and that the duration of the single and continuous infringement amounted to 21 months for EU-third country routes and 8 months for non-EU EEA-third country routes, that being also the duration of the participation of all of the incriminated carriers, with the exception of Deutsche Lufthansa and Others. The General Court therefore took into consideration, in order to assess the substantiality of the effect on the prices of imported goods, the factual and legal elements identified by the Commission in the decision at issue.
101    Second, in paragraph 146 of the judgment under appeal, the General Court merely responded to the line of argument put forward by Deutsche Lufthansa and Others by holding that, contrary to that line of argument, the surcharges represented a significant proportion of the total price of freight services during the infringement period.
102    In the fifth place, as regards the immediacy of the effect on the prices of imported goods, it should be recalled that the General Court relied on recital 1045 of the decision at issue, by which the Commission had noted that the anticompetitive practices concerning inbound freight services were likely to have immediate effects. By holding, in paragraph 153 of the judgment under appeal, that, contrary to what Deutsche Lufthansa and Others essentially maintained, the intervention of freight forwarders was not, in itself, capable of breaking the causal chain between the conduct at issue and the effect on the prices of imported goods, the General Court did not therefore substitute its own reasoning for that of the decision at issue, but rejected the line of argument relied on by the appellants, alleging that freight forwarders could not pass on to their own customers the increase in the cost of air freight services, and confirmed the reasoning of that decision.
103    In the sixth place, the complaint directed against paragraph 173 of the judgment under appeal concerns the finding of the existence of qualified effects of the single and continuous infringement as a whole and will therefore be examined in the context of the second part of the single ground of appeal.
104    It follows that, subject to that reservation, the third part of the single ground of appeal and the section of the first part referred to in paragraph 80 of the present judgment must be rejected as unfounded.
The fourth part, alleging an error of law in the assessment of the immediacy, substantiality and foreseeability of the effects at issue
Arguments of the parties
105    By the fourth part of their single ground of appeal, Deutsche Lufthansa and Others claim that the General Court erred in law in finding that the facts at issue gave rise to immediate, substantial and foreseeable effects and, in so doing, satisfied the qualified effects test.
106    First, as regards foreseeability of effects, conduct can be regarded as foreseeable only if it has an immediate or direct effect within the internal market, which is the case if the conduct directly influences the supply of goods or provision of services to consumers located in the EEA. By contrast, a mere ‘knock-on effect’ on the internal market is insufficient.
107    It is undisputed that the customers of airlines using inbound freight services were established outside the EEA.
108    Moreover, the effect found by the General Court is only indirect, since, in order for it to occur, the conduct adopted in a third country must lead to an increase in the surcharges applied by the airlines, then that increase in surcharges in turn leads to an increase in the total price charged by the airlines to freight forwarders and, lastly, the freight forwarders pass on that increase in the form of an increase in the total price of freight services provided to shippers, who must, moreover, be established in the EEA. In those circumstances, the price coordination implemented outside the EEA could not have had direct and foreseeable effects in the EEA.
109    The concept of a causal link, used by the General Court to justify the expansion of the Commission’s jurisdiction, does not make it possible to delimit the Commission’s jurisdiction to apply Article 101(1) TFEU in the light of public international law with sufficient clarity in the case of long and complex international supply chains.
110    Moreover, that approach is contrary to the Commission’s decision-making practice, which applies EU competition law only in cases in which cartel members sell their products or services directly to consumers established in the European Union.
111    As regards the substantiality of the effects, Deutsche Lufthansa and Others criticise the General Court for having analysed only for the sake of completeness the significance of the surcharges in the total price charged to downstream customers. That analysis is essential, since the coordination of the prices of an input which represents only a small proportion of the price charged to customers in the EEA has no substantial effect within the EEA.
112    The General Court’s assessment in paragraphs 146 to 148 of the judgment under appeal also highlights the absence of any meaningful analysis by the Commission in the decision at issue, since it is based on only two factors.
113    The first of those two factors, namely the letter of 8 July 2005 from the Hong Kong Association of Freight Forwarding & Logistics to the Chairman of the Cargo Sub-Committee of the Board of Airline Representatives, cited in paragraph 147 of the judgment under appeal (‘the letter of 8 July 2005’), was not referred to in the decision at issue, with the result that it is inadmissible. In any event, that letter is not conclusive, since it forms part of a collective attempt by freight forwarders to obtain compensation from airlines in connection with the collection of surcharges.
114    The second factor taken into consideration by the General Court is recital 1031 of the decision at issue, cited in paragraph 148 of the judgment under appeal. That recital concerns the proportion represented by freight services in relation to the price of the goods transported and not the proportion represented by the surcharges in relation to the price of air transport services. Thus, according to Deutsche Lufthansa and Others, the fuel surcharge actually represented approximately only 10% of the overall price charged to freight forwarders in the period between the years 2000 and 2006, and was below 5% in the first year of that period.
115    Lastly, in the judgment under appeal, the General Court failed to assess whether an increase in the surcharges invoiced by the carriers had been offset by a reduction in freight rates in accordance with the ‘waterbed’ effect. However, in order to assess the effect on customers or end consumers within the EEA, it is necessary to determine whether the direct customers of the airlines, namely freight forwarders, passed on any net increase in the cost of freight services to their direct customers, namely shippers established outside the EEA, whether the latter passed on the price increase to importers within the EEA and whether the price increase vis-à-vis those importers was substantial.
116    The Commission contends that that line of argument is unfounded.
Findings of the Court
117    In the first place, it should be recalled that, for the purposes of applying the qualified effects test, it is sufficient to take account of the probable effects of conduct on competition in order for the foreseeability criterion to be satisfied and that it is sufficient that the conduct at issue is capable of having an immediate effect in the European Union or in the EEA in order for the immediacy requirement to be satisfied (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 49 and 51).
118    Thus, as Deutsche Lufthansa and Others maintain, in order to establish that the qualified effects test has been satisfied, the Commission must establish that the practices concerned have foreseeable, immediate and substantial effects in the European Union or, as in the present case, in the EEA, which criteria the General Court recalled, moreover, in paragraphs 100 and 122 of the judgment under appeal.
119    However, contrary to what Deutsche Lufthansa and Others claim by their line of argument set out in paragraph 108 of the present judgment, the General Court did not, in paragraphs 118, 119 and 134 of the judgment under appeal, distance itself from that test by relying on only indirect effects in order to characterise the existence of qualified effects, within the meaning of the case-law referred to in paragraph 117 of the present judgment.
120    In paragraphs 125 to 127 of the judgment under appeal, the General Court found that the cartel concerning the fuel surcharge, the security surcharge and the refusal to pay commission amounted, as was apparent from recitals 846, 909, 1199 and 1208 of the decision at issue, to collusive horizontal-pricing behaviour, which, according to the case-law of the Court of Justice, is known to lead, in particular, to price increases resulting in poor allocation of resources to the detriment, in particular, of consumers. The General Court considered that it was, in those circumstances, foreseeable for the incriminated carriers that the horizontal fixing of the fuel surcharge and the security surcharge would lead to an increase in the level of those surcharges. It added that the refusal to pay commission was such as to reinforce such an increase, since it consisted of a concerted refusal to grant freight forwarders discounts on surcharges and thus sought to allow the incriminated carriers to ensure that pricing uncertainty, which could have arisen from competition on commission payments ‘remained suppressed’ and thus to eliminate competition in respect of surcharges, as the Commission had noted in recitals 874, 879 and 899 of the decision at issue.
121    It also noted, in paragraph 128 of the judgment under appeal, that the price of freight services consists, as was apparent from recital 17 of that decision, of rates and surcharges, including the fuel surcharge and the security surcharge, and that, unless it were considered that an increase in the fuel surcharge and the security surcharge would, as a result of a sufficiently probable ‘waterbed effect’, be offset by a corresponding reduction in rates and other surcharges, such an increase was, in principle, liable to lead to an increase in the total price of inbound freight services.
122    It also examined, in paragraphs 131 to 134 of the judgment under appeal, whether it was foreseeable for the incriminated carriers that the freight forwarders would pass that increase on to their own customers, namely shippers, by increasing the price of freight forwarding services. It considered that that was the case, since the price of freight services was, for freight forwarders and as was apparent, in essence, from recitals 14 and 70 of that decision, a variable cost, the increase of which has, in principle, the effect of increasing the marginal cost by reference to which freight forwarders set their own prices. In paragraphs 135 to 137 of that judgment, the General Court also found that, as was apparent from recitals 70 and 1031 of that decision, the cost of goods the integrated transportation of which is generally organised by freight forwarders on behalf of shippers incorporates the price of freight-forwarding services and, in particular, the cost of freight services, with the result that it was also foreseeable for the incriminated carriers that the single and continuous infringement would have the effect, in so far as it related to inbound routes, of increasing the price of goods imported into the EEA.
123    Thus, it was by taking into account the likely effects of that infringement on competition that the General Court held, in accordance with the case-law referred to in paragraph 117 of the present judgment, that the Commission had established that the effect on the prices of imported goods was foreseeable.
124    As the Advocate General also observed in point 73 of his Opinion, any loss the incurrence of which the cartel members ought reasonably to take into consideration on the basis of practical experience is foreseeable, within the meaning of that case-law, unlike loss which results from an entirely extraordinary train of events. As has already been pointed out in paragraph 120 of the present judgment and as the General Court also recalled in paragraph 125 of the judgment under appeal, relying in that regard on paragraph 51 of the judgment of 11 September 2014, CB v Commission (C‑67/13 P, EU:C:2014:2204), it is established that collusive behaviour, such as that leading to horizontal price-fixing by cartels, entails, inter alia, price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers.
125    Accordingly, contrary to what Deutsche Lufthansa and Others claim, in order to establish the requisite foreseeability, it was not necessary for the General Court to verify specifically the effect of the surcharges on the total sale price of freight services, or whether and to what extent the freight forwarders had actually passed on that price increase to shippers, or whether and to what extent the shippers had actually passed on that increase in transport costs to consumers.
126    The line of argument set out in paragraph 108 of the present judgment must, accordingly, be rejected as unfounded.
127    As regards, in the second place, the complaints directed against paragraphs 140 to 150 of the judgment under appeal, by which the General Court assessed whether the effect on the prices of imported goods was substantial, Deutsche Lufthansa and Others’ argument, alleging that the General Court found only for the sake of completeness, in paragraph 146 of that judgment, that the surcharges represented a significant proportion of the total price of freight services during the infringement period, must be rejected as ineffective from the outset. Even if, as the appellants claim, that assessment was not superfluous, but essential, the fact that it was stated that it was carried out only for the sake of completeness cannot justify setting aside the judgment under appeal, given that the General Court, in any event, carried out that assessment.
128    Furthermore, in so far as, by their line of argument, Deutsche Lufthansa and Others dispute the fact that the General Court took into account the letter of 8 July 2005, it should be noted, first, that Deutsche Lufthansa and Others claim that that evidence is inadmissible on the ground that it was not cited in the decision at issue.
129    In that regard, it is true that the Court of Justice has held that it would be incompatible with the fundamental right to an effective judicial remedy if a judicial decision were to be based on facts and documents of which the parties themselves, or one of them, have not been able to take cognisance and in relation to which they have not therefore been able to formulate an opinion (see, to that effect, judgments of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 30 and the case-law cited, and of 28 November 2024, PT (Agreement concluded between the prosecutor and the perpetrator of an offence), C‑432/22, EU:C:2024:987, paragraph 71 and the case-law cited).
130    However, in the present case, as stated in paragraph 128 of the present judgment, Deutsche Lufthansa and Others merely submit that the letter of 8 July 2005 is not referred to in the decision at issue, without claiming that they were not put in a position to become acquainted with it during the administrative procedure or the procedure before the General Court. In that regard, and in any event, it is apparent from the case file before the General Court, sent to the Court of Justice in accordance with Article 167(2) of the Rules of Procedure of the Court of Justice, that the letter of 8 July 2005 was produced before the General Court by the Commission, as an annex to its replies to the questions put to it by the General Court. The production of that letter was intended to support the assertion, in recitals 471, 686, 699 and 777 of the decision at issue, that it was for freight forwarders to ‘collect’ surcharges from shippers on behalf of the carriers. Since the Commission’s replies to the questions put to it by the General Court and the annex thereto were communicated to the appellants four days before the hearing before the General Court, they could, if they so wished, submit their observations on the letter of 8 July 2005 at that hearing. Furthermore, it is apparent from the Commission’s reply to the questions put to it by the General Court that that letter was already in the Commission’s file. In those circumstances, the appellants’ argument that that letter constituted inadmissible evidence which the General Court should not have taken into consideration cannot succeed.
131    Nor can Deutsche Lufthansa and Others maintain at the appeal stage that that letter did not have the significance attributed to it by the General Court. It must be borne in mind that, as stated in paragraph 77 of the present judgment, the assessment of those facts and evidence does not constitute, save in the case of their distortion, a question of law subject, as such, to review by the Court of Justice in the context of an appeal. It follows that the line of argument put forward by Deutsche Lufthansa and Others, without alleging any distortion, that the General Court should have drawn conclusions other than those which it drew in the light of the letter of 8 July 2005 is inadmissible.
132    Lastly, as regards the argument that recital 1031 of the decision at issue, to which the General Court referred in paragraph 148 of the judgment under appeal, refers only to the significance of the price of freight services in the cost of the goods transported and not to the proportion which the surcharges represent in the price of air transport services, in respect of which Deutsche Lufthansa and Others provide before the Court of Justice their own assessment, it must be pointed out that that line of argument is based on a selective reading of the judgment under appeal. The General Court first noted, in paragraph 147 of the judgment under appeal, that it was apparent from the letter of 8 July 2005 that the surcharges represented a very significant part of the total price of the air waybills which the freight forwarders had to pay, and then found, in paragraph 148 of that judgment, that it was apparent from recital 1031 of the decision at issue that the price of freight services was ‘itself’ a significant cost element of the goods transported. In any event, in so far as, by that line of argument, Deutsche Lufthansa and Others dispute the relevance of the General Court’s consideration of recital 1031 of the decision at issue, that line of argument is inadmissible for the reasons set out in paragraphs 77 and 130 of the present judgment.
133    In the third place, as regards the argument set out in paragraph 115 of the present judgment, relating to the failure to examine a ‘waterbed’ effect, it should be recalled that, in paragraph 128 of the judgment under appeal, the General Court noted that, unless it were to be considered that an increase in the fuel surcharge and the security surcharge would, as a result of a sufficiently probable ‘waterbed’ effect, be offset by a corresponding reduction in rates and other surcharges, such an increase was, in principle, liable to lead to an increase in the total price of inbound freight services. The General Court therefore examined that ‘waterbed’ effect in order to reject it. Even if Deutsche Lufthansa and Others seek, by their argument, to call that assessment into question, that argument is also inadmissible for the reasons set out in paragraphs 77 and 130 of the present judgment.
134    It follows from all of the foregoing that the fourth part of the single ground of appeal must be rejected as in part inadmissible and in part unfounded.
The second part, relating to the taking into account of the effects of the single and continuous infringement as a whole
Arguments of the parties
135    By the second part of their single ground of appeal, Deutsche Lufthansa and Others criticise the General Court for having held that the Commission could, for the purposes of establishing the existence of qualified effects justifying the Commission’s jurisdiction, rely on the effects of the single and continuous infringement as a whole, without having to demonstrate that each of the concerted practices satisfied the requirements of Article 101(1) TFEU or Article 53(1) of the EEA Agreement.
136    The concept of a ‘single and continuous infringement’ must be regarded as a procedural rule allowing a combination of several agreements and/or concerted practices covered by each of those provisions, that is to say, having as their object or effect the restriction of competition within the internal market. The General Court held that the Commission’s jurisdiction followed automatically from the inclusion of conduct in a single and continuous infringement, relying on a misinterpretation of the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632).
137    Deutsche Lufthansa and Others submit, in that regard, that the case which gave rise to that judgment, which concerned an overall strategy adopted by a single undertaking in order to abuse its dominant position in order to eliminate its main rival, differs from the present case. The appellants also maintain that the assessment of the existence of a single and continuous infringement cannot be carried out in the same way in the context of Article 102 TFEU and that of Article 101(1) TFEU. Lastly, the appellants claim that the General Court justified the application of the concept of a ‘single and continuous infringement’ to ensure the applicability of EU competition law when each practice viewed in isolation is not liable to produce a substantial effect in the European Union but the practices, taken together, are liable to produce such an effect. In the present case, the Commission has jurisdiction over outbound freight services.
138    The Commission contends that the second part of the single ground of appeal should be rejected in its entirety.
Findings of the Court
139    It should be noted that, by the first part of their fifth plea for annulment submitted before the General Court, Deutsche Lufthansa and Others merely challenged the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to the conduct at issue in so far as it related to inbound freight services. In that regard, the General Court found, in paragraph 162 of the judgment under appeal, that the Commission was entitled to find that the qualified effects test was satisfied as regards coordination in relation to inbound freight services taken in isolation, with the result that the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to the conduct at issue – in so far as that jurisdiction was disputed – was established. It follows that it was for the sake of completeness that, in paragraphs 163 to 173 of the judgment under appeal, the General Court examined whether the Commission, in order to establish its jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to the conduct at issue, was also entitled to find, in recital 1046 of the decision at issue, that the qualified effects test was satisfied having regard to the effects of the single and continuous infringement taken as a whole.
140    Furthermore, as is apparent from all the foregoing analysis relating to the other three parts of the single ground of appeal, the General Court did not commit the alleged errors of law in so ruling in paragraph 162 of the judgment under appeal.
141    In those circumstances, it must be held that the line of argument put forward by Deutsche Lufthansa and Others is aimed at grounds included in that judgment purely for the sake of completeness. It is settled case-law that complaints directed against grounds included in a decision of the General Court purely for the sake of completeness cannot lead to the decision being set aside and are therefore ineffective (judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 537, and of 4 October 2024, thyssenkrupp v Commission, C‑581/22 P, EU:C:2024:821, paragraph 263 and the case-law cited).
142    The second part of the single ground of appeal must therefore be rejected as ineffective. The section of the first part of the single ground of appeal referred to in paragraph 103 of the present judgment must be rejected for the same reasons.
143    As none of the parts of the single ground of appeal has been upheld, that ground of appeal must be rejected and the appeal dismissed in its entirety.
Costs
144    In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs.
145    Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
146    Since the Commission has applied for costs to be awarded against Deutsche Lufthansa and Others and the latter have been unsuccessful, the appellants must be ordered to bear their own costs and to pay those incurred by the Commission.
On those grounds, the Court (Fifth Chamber) hereby:
1.      Dismisses the appeal;
2.      Orders Deutsche Lufthansa AG, Lufthansa Cargo AG and Swiss International Air Lines AG to pay the costs.
Jarukaitis
Regan
Gratsias
Delivered in open court in Luxembourg on 26 February 2026.
A. Calot Escobar
I. Jarukaitis
Registrar
Acting President of the Chamber
*      Language of the case: English.