JUDGMENT OF THE GENERAL COURT (Fourth Chamber, Extended Composition)
30 March 2022(*)
(Competition – Agreements, decisions and concerted practices – Market for airfreight – Decision finding an infringement of 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 – Coordination of elements of the price of airfreight services (fuel surcharge, security surcharge, payment of commission on surcharges) – Exchange of information – Territorial jurisdiction of the Commission – Limitation period – Ne bis in idem principle – Principle of non-discrimination – Rights of the defence – State constraint – Single and continuous infringement – Amount of the fine – Value of sales – Gravity of the infringement – Mitigating circumstances – Substantially limited participation – Proportionality – Unlimited jurisdiction)
In Case T‑344/17,
Latam Airlines Group SA, established in Santiago (Chile),
Lan Cargo SA, established in Santiago,
represented by B. Hartnett, Barrister, O. Geiss and W. Sparks, lawyers,
applicants,
v
European Commission, represented by A. Dawes, H. Leupold and G. Koleva, acting as Agents, and by G. Peretz QC,
defendant,
APPLICATION pursuant to Article 263 TFEU for the annulment 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) in so far as it relates to the applicants and, in the alternative, for a reduction in the fine imposed on the applicants,
THE GENERAL COURT (Fourth Chamber, Extended Composition),
composed of H. Kanninen (Rapporteur), President, J. Schwarcz, C. Iliopoulos, D. Spielmann and I. Reine, Judges,
Registrar: I. Dragan, Administrator,
having regard to the written part of the procedure and further to the hearing on 12 July 2019,
gives the following
Judgment
I.      Background to the dispute
1        The first applicant, Latam Airlines Group SA, formerly Lan Airlines SA, is the parent company of the second applicant, Lan Cargo SA. The latter is active in the market for airfreight services (‘freight’).
2        In the freight sector, airlines provide for the carriage of cargo by air (‘the carriers’). As a general rule, the carriers supply freight services to freight forwarders, who arrange the transport of that cargo on behalf of shippers. In return, those freight forwarders pay the carriers a price consisting, on the one hand, of rates calculated on a per-kilogram basis and negotiated either on a long-term basis (typically one season, namely six months) or on an ad-hoc basis, and, on the other hand, of various surcharges, which are intended to cover certain costs.
3        There are four different types of carrier: first, those which exclusively operate dedicated freighter airplanes, secondly, those with cargo capacity on passenger flights, thirdly, those with both dedicated freighter airplanes and with cargo capacity on passenger flights (combination airlines) and, fourthly, integrators with dedicated freighter airplanes providing both integrated express delivery services and general cargo services.
4        No carrier is able to serve all major cargo destinations in the world with sufficient frequency, and therefore agreements among carriers enabling them to increase their network coverage or improve their schedules have become common, including in the context of broader commercial alliances between carriers. At the material time, those alliances included, inter alia, the WOW alliance, which comprised Deutsche Lufthansa AG (‘Lufthansa’), SAS Cargo Group A/S (‘SAS Cargo’), Singapore Airlines Cargo Pte Ltd (‘SAC’) and Japan Airlines International Co., Ltd (‘Japan Airlines’).
A.      Administrative procedure
5        On 7 December 2005, the Commission of the European Communities 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 Lufthansa and its subsidiaries, Lufthansa Cargo AG and Swiss International Air Lines AG (‘Swiss’). The application alleged that extensive anticompetitive contacts were being maintained between a number of carriers with regard to:
–        the fuel surcharge (‘FSC’), which had been introduced to tackle rising fuel costs;
–        the security surcharge (‘SSC’), which had been introduced to address the costs of certain security measures imposed following the terrorist attacks of 11 September 2001.
6        On 14 and 15 February 2006, the Commission carried out unannounced inspections at the premises of several carriers, pursuant to Article 20 of 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).
7        Following the inspections, a number of carriers, including the applicants, submitted an application under the 2002 notice referred to in paragraph 5 above.
8        On 19 December 2007, after sending a number of requests for information, the Commission addressed a statement of objections to 27 carriers, including the applicants (‘the Statement of Objections’). It stated that those carriers had infringed Article 101 TFEU, Article 53 of the Agreement on the European Economic Area (EEA) and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (‘the EC‑Switzerland Air Transport Agreement’) by participating in a cartel relating, in particular, to the FSC, the SSC and a refusal to pay commission on surcharges (‘the refusal to pay commission’).
9        In response to the Statement of Objections, the addressees submitted written observations.
10      An oral hearing was held from 30 June to 4 July 2008.
B.      The Decision of 9 November 2010
11      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 [EC‑Switzerland Air Transport Agreement] (Case COMP/39258 – Airfreight) (‘the Decision of 9 November 2010’). That decision is addressed to 21 carriers (‘the carriers incriminated in the Decision of 9 November 2010’), namely:
–        Air Canada;
–        Air France-KLM (‘AF-KLM’);
–        Société Air France (‘AF’);
–        Koninklijke Luchtvaart Maatschappij NV (‘KLM’);
–        British Airways plc;
–        Cargolux Airlines International SA (‘Cargolux’);
–        Cathay Pacific Airways Ltd (‘CPA’);
–        Japan Airlines Corp.;
–        Japan Airlines;
–        The first applicant;
–        The second applicant;
–        Lufthansa Cargo;
–        Lufthansa;
–        Swiss;
–        Martinair Holland NV (‘Martinair’);
–        Qantas Airways Ltd (‘Qantas’);
–        SAS AB;
–        SAS Cargo;
–        Scandinavian Airlines System Denmark-Norway-Sweden (‘SAS Consortium’);
–        SAC;
–        Singapore Airlines Ltd (‘SIA’).
12      The objections raised provisionally against the other addressees of the Statement of Objections were abandoned (‘the non-incriminated carriers’).
13      The grounds of the Decision of 9 November 2010 described 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 EEA and of Switzerland, by which the carriers incriminated in the Decision of 9 November 2010 had coordinated their behaviour as regards the pricing of freight services.
14      The operative part of the Decision of 9 November 2010, in so far as it concerned the applicants, read as follows:
‘Article 2
The following undertakings infringed Article 101 of the TFEU by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for airfreight services on routes between airports within the European Union and airports outside the EEA, for the following periods:
…
(j)      [Lan] from 1 May 2004 until 14 February 2006;
(k)      [The second applicant] from 1 May 2004 until 14 February 2006;
…
Article 5
For the infringements referred to in Articles 1 to 4 [of the Decision of 9 November 2010], the following fines are imposed:
…
(i)      [The applicants] jointly and severally: EUR 8 220 000;
…
Article 6
The undertakings listed in Articles 1 to 4 shall immediately bring to an end the infringements referred to in those articles, in so far as they have not already done so.
They shall refrain from repeating any act or conduct described in Articles 1 to 4, and from any act or conduct having the same or similar object or effect.’
C.      Action challenging the Decision of 9 November 2010 before the Court
15      By application lodged at the Court Registry on 24 January 2011, the applicants brought an action for annulment of the Decision of 9 November 2010, in so far as it concerns them or, in the alternative, for the cancellation or reduction of the amount of the fine which had been imposed on them. The other carriers incriminated in the Decision of 9 November 2010, with the exception of Qantas, also brought actions against that decision before the Court.
16      By judgments of 16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994), Koninklijke Luchtvaart Maatschappij v Commission (T‑28/11, not published, EU:T:2015:995), Japan Airlines v Commission (T‑36/11, not published, EU:T:2015:992), Cathay Pacific Airways v Commission (T‑38/11, not published, EU:T:2015:985), Cargolux Airlines v Commission (T‑39/11, not published, EU:T:2015:991), Latam Airlines Group and Lan Cargo v Commission (T‑40/11, not published, EU:T:2015:986), Singapore Airlines and Singapore Airlines Cargo Pte v Commission (T‑43/11, not published, EU:T:2015:989), Deutsche Lufthansa and Others v Commission (T‑46/11, not published, EU:T:2015:987), British Airways v Commission (T‑48/11, not published, EU:T:2015:988), SAS Cargo Group and Others v Commission (T‑56/11, not published, EU:T:2015:990), Air France-KLM v Commission (T‑62/11, not published, EU:T:2015:996), Air France v Commission (T‑63/11, not published, EU:T:2015:993) and Martinair Holland v Commission (T‑67/11, EU:T:2015:984), the Court annulled, in whole or in part, the Decision of 9 November 2010 in so far as it concerned, respectively, Air Canada, KLM, Japan Airlines and Japan Airlines Corp., CPA, Cargolux, the applicants, SAC and SIA, Lufthansa, Lufthansa Cargo and Swiss, British Airways, SAS Cargo, SAS Consortium and SAS, AF-KLM, AF and Martinair. The Court held that that decision was vitiated by a defective statement of reasons.
17      In that regard, the Court held, in the first place, that the Decision of 9 November 2010 was vitiated by contradictions between the grounds and the operative part thereof. The grounds of the decision described a single and continuous infringement relating to all routes covered by the cartel, in which all the carriers incriminated in the Decision of 9 November 2010 had participated. By contrast, the operative part of that decision identified either four separate single and continuous infringements, or just one single and continuous infringement, liability for which was attributed to the carriers which, as regards the routes mentioned in Articles 1 to 4 of the decision, participated directly in the unlawful conduct referred to in each of those articles or were aware of the collusion on those routes and accepted the risk. Neither of those two readings of the operative part of the Decision of 9 November 2010 was consistent with the grounds for the decision.
18      The Court also rejected as incompatible with the grounds of the Decision of 9 November 2010 the alternative reading of the operative part proposed by the Commission, which was that the failure to mention some of the carriers incriminated in the Decision of 9 November 2010 in Articles 1, 3 and 4 of the decision could be explained by the fact that those carriers did not operate the routes referred to in those articles, and that those articles need not be interpreted as referring to separate single and continuous infringements.
19      In the second place, the Court held that the grounds of the Decision of 9 November 2010 contained significant internal inconsistencies.
20      In the third place, after noting that neither of the two possible readings of the operative part of the Decision of 9 November 2010 was consistent with the grounds thereof, the Court considered whether, in the context of at least one of those two possible readings, the internal contradictions of that decision were likely to undermine the applicants’ rights of defence and prevent the Court from conducting its review. As regards the first reading, namely that there were four separate single and continuous infringements, first of all, the Court held that the applicants had not been in a position to understand to what extent the evidence set out in the grounds and relating to the existence of a single and continuous infringement was liable to establish the existence of the four separate infringements found in the operative part, or to contest the sufficiency of that evidence. Second, it held that the applicants had not been able to understand the line of reasoning that had led the Commission to find them liable for an infringement, and for the routes which it did not operate within the parameter defined by each article of the Decision of 9 November 2010.
D.      The contested decision
21      On 20 May 2016, following the annulment ordered by the Court, the Commission sent a letter to the carriers incriminated in the Decision of 9 November 2010 which had brought an action against that decision before the Court to inform them that its Directorate-General (DG) for Competition intended to propose to it the adoption of a new 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 in relation to all of the routes referred to in that decision.
22      The addressees of the Commission’s letter referred to in paragraph 21 above were invited to make known their views on the Commission DG Competition’s intended decision within one month. All addressees, including the applicants, availed themselves of that possibility.
23      On 17 March 2017, the Commission adopted Decision C(2017) 1742 final relating to a proceeding under Article 101 [TFEU], Article 53 of the EEA Agreement and Article 8 of the [EC‑Switzerland Air Transport Agreement] (Case AT.39258 – Airfreight) (‘the contested decision’). That decision is addressed to 19 carriers (‘the incriminated carriers’), namely:
–        Air Canada;
–        AF-KLM;
–        AF;
–        KLM;
–        British Airways;
–        Cargolux;
–        CPA;
–        Japan Airlines;
–        The first applicant;
–        The second applicant;
–        Lufthansa Cargo;
–        Lufthansa;
–        Swiss;
–        Martinair;
–        SAS;
–        SAS Cargo;
–        SAS Consortium;
–        SAC;
–        SIA.
24      In the contested decision, no objections are maintained against the other addressees of the Statement of Objections.
25      The grounds of the contested decision describe 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, by which the incriminated carriers coordinated their behaviour as regards the pricing of freight services worldwide through the FSC, the SSC and the payment of commission on surcharges.
26      In the first place, in Section 4.1 of the contested decision, the Commission described the ‘basic principles and structure of the cartel’. In recitals 107 and 108 of that decision, the Commission stated 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 of freight services, namely the FSC, the SSC and the refusal to pay commission. 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 (‘the cartel at issue’).
27      According to recital 109 of the contested decision, the objective of the coordinated application of the FSC was to ensure that carriers throughout the world imposed a flat-rate surcharge per kilo for all relevant shipments. A complex network of mainly bilateral contacts among carriers was established to coordinate and monitor the application of the FSC, the precise date of application often, according to the Commission, being decided at local level usually with the principal local carrier taking the lead and others following. That coordinated approach was extended to the SSC and to the refusal to pay commission, with the result that the latter became net revenue for the carriers and created an additional incentive for them to continue with the coordination relating to the surcharges.
28      According to recital 110 of the contested decision, senior management in the head offices of a number of airlines were either directly involved in competitor contacts or regularly informed about them. In the case of the surcharges, the responsible head-office employees were in contact with each other when a change to the surcharge level was imminent. The refusal to pay a commission on surcharges was also confirmed on a number of occasions during contacts at head-office level. There were frequent contacts also at local level, partly to better implement the instructions received from the head offices and to adapt them to the local market conditions, partly to coordinate and implement local initiatives. In this latter case the head offices generally authorised or were informed of the proposed action.
29      According to recital 111 of the contested decision, carriers contacted each other bilaterally, in small groups and in some instances in large multilateral forums. Local associations of representatives of the carriers were used, in particular in Hong Kong and Switzerland, to discuss yield-improvement measures and coordinate surcharges. Meetings of alliances, such as the WOW alliance, were also used for such purposes.
30      In the second place, in Sections 4.3, 4.4 and 4.5 of the contested decision, the Commission described the contacts concerning, respectively, the FSC, the SSC and the refusal to pay commission (‘the contacts at issue’).
31      Thus, first, in recitals 118 to 120 of the contested decision, the Commission summarised the contacts relating to the FSC as follows:
‘(118) A network of bilateral contacts built up from late 1999/early 2000 onwards involving a number of airlines that allowed information sharing concerning the actions of the participants throughout the network. Carriers contacted each other regularly to discuss any question that came up concerning the FSC, including changes to the mechanism, changes [to] the FSC level, consequent application of the mechanism, [and] instances when some airlines did not follow the system.
(119) Concerning the implementation of FSC at local level, a system was often applied whereby leading airlines on particular routes or in certain countries would announce the change first, and they would be followed by others …
(120) Anti-competitive coordination concerning the FSC took place mainly in four contexts: concerning the introduction of FSC in early 2000, the reintroduction of a fuel surcharge mechanism after the revocation of the planned [International Air Transport Association (IATA)] mechanism, the introduction of new trigger points (raising the maximum level of FSC) and most frequently at the point where the fuel indices were approaching the level at which an increase or decrease in the FSC would be triggered.’
32      Second, in recital 579 of the contested decision, the Commission summarised the contacts relating to the SSC as follows:
‘A number of [incriminated carriers] discussed, among others issues, their plans whether or not to introduce a SSC … Moreover, the amount of the surcharge and the timing of the introduction were also discussed. [The incriminated carriers] furthermore shared with each other ideas concerning the justification to be given to their customers. Ad hoc contacts concerning the implementation of the SSC continued throughout the years 2002-2006. The illicit coordination took place both at head office and local level.’
33      Third, in recital 676 of the contested decision, the Commission stated that the incriminated carriers had ‘continued to refuse commission on the surcharges and [had] confirmed their relevant intentions to each other in the framework of numerous contacts’.
34      In the third place, in Section 4.6 of the contested decision, the Commission carried out the assessment of the contacts at issue. The assessment of the evidence relied on against the applicants is set out in recitals 766 and 767 of that decision.
35      In recital 768 of the contested decision, the Commission added that the second applicant did not contest that its activities in relation to the FSC had resulted in an infringement of Article 101 TFEU.
36      In the fourth place, in Section 5 of the contested decision, the Commission applied Article 101 TFEU to the facts of the case, while stating, in footnote 1289 of that decision, that the considerations adopted also applied to Article 53 of the EEA Agreement and Article 8 of the EC‑Switzerland Air Transport Agreement. Thus, first, in recital 846 of that decision, the Commission found that the incriminated carriers had coordinated their conduct or influenced price setting, ‘which ultimately amounting to price fixing with regard to’ the FSC, the SSC and the payment of commission on surcharges. In recital 861 of that decision, the Commission described the ‘overall scheme to coordinate the pricing behaviour for [freight] services’, the investigation of which had revealed 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’.
37      Second, in recital 869 of the contested decision, the Commission found that the ‘conduct in question [constituted] a single and continuous infringement of Article 101 of the TFEU’. It thus found in that the arrangements at issue pursued a single anticompetitive aim of distorting competition in the freight sector within the EEA, including when coordination took place at local level and experienced local variations (recitals 872 to 876), concerned a ‘single product/service’, namely ‘the provision of [freight] services and the pricing thereof’ (recital 877), concerned the same undertakings (recital 878), had a single nature(recital 879) and related to three elements, namely the FSC, the SSC and the refusal to pay commission, which were ‘frequently discussed side by side in the same competitor contact’ (recital 880).
38      In recital 883 of the contested decision, the Commission added that the second applicant was involved in one aspect of the single infringement, namely the FSC, but that ‘evidence on the file demonstrates it was aware of discussions among carriers on SSC and commission on surcharges’.
39      Third, in recital 884 of the contested decision, the Commission concluded that the infringement at issue was continuous.
40      Fourth, in recitals 885 to 890 of the contested decision, the Commission examined the relevance of contacts in third countries and of contacts concerning routes which the carriers had never operated or which they could not legally have operated. It considered that, given the worldwide nature of the cartel at issue, those contacts were relevant to establishing the existence of the single and continuous infringement. In particular, it found that the surcharges were measures of general application that were not route-specific but were intended to be applied on all routes, on a worldwide basis, including routes to and from the EEA and Switzerland. It stated that the refusal to pay commission was equally general in nature. In addition, the Commission considered that there were no insurmountable barriers that prevented carriers from providing freight services on routes which they had never operated or which they could not legally operate, in particular because of the agreements which they were able to conclude between themselves.
41      Fifth, in recital 903 of the contested decision, the Commission found that the conduct at issue 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.
42      Sixth, in recitals 972 to 1021 of the contested decision, the Commission examined the legislation of 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 found that those carriers had failed to prove that they had acted under duress from those third countries.
43      Seventh, in recitals 1024 to 1035 of the contested decision, the Commission found that the single and continuous infringement was likely to have an appreciable effect on trade between Member States, between contracting parties to the EEA Agreement and between contracting parties to the EC‑Switzerland Air Transport Agreement.
44      Eighth, the Commission examined the limits of its territorial and temporal jurisdiction to find and penalise an infringement of the competition rules in the present case. First, in recitals 822 to 832 of the contested decision, under the heading ‘Jurisdiction of the Commission’, the Commission stated, in essence, that it would not apply, first of all, Article 101 TFEU to agreements and practices before 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 before 19 May 2005 concerning EU‑third country routes and routes between airports in countries that are contracting parties to the EEA Agreement but are not EU Member States and airports in third countries (‘non-EU EEA‑third country routes’ and, together with EU‑third country routes, ‘EEA‑third country routes’) and, lastly, Article 8 of the EC‑Switzerland Air Transport Agreement to agreements and practices before 1 June 2002 concerning routes between airports within the European Union and Swiss airports (‘EU‑Switzerland routes’). It also stated that the contested 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’.
45      On the other hand, in recitals 1036 to 1046 of the contested decision, under the heading ‘The applicability of Article 101 of the TFEU and Article 53 of the EEA Agreement to inbound routes’, the Commission rejected the arguments put forward by the various incriminated carriers that it would exceed 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’). In particular, in recital 1042 of that decision, it recalled the criteria which it considered to be applicable:
‘With respect to the extra-territorial application of Article 101 of the TFEU and Article 53 of the EEA Agreement these provisions are applicable to arrangements that are either implemented within the [European Union] (implementation theory) or that have immediate, substantial and foreseeable effects within the [European Union] (effects theory).’
46      In recitals 1043 to 1046 of the contested decision, the Commission applied the criteria in question to the facts of the present case:
‘(1043) In the case of [inbound freight services], Article 101 of the TFEU and Article 53 of the EEA Agreement are applicable because the service itself that is the subject of the price fixing infringement is to be performed and is indeed performed, in part, within the territory of the EEA. Moreover, many contacts by which the addressees coordinated surcharges and the non-payment of commission took place in the EEA or involved participants in the EEA.
(1044) … the example given in the [Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2008 C 95, p. 1 and corrigendum OJ 2009 C 43, p. 10)] is not relevant here. [That notice] relates to the geographic allocation of turnover of undertakings for the purpose of establishing whether the turnover thresholds of Article 1 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings [(OJ 2004 L 24, p. 1)] are met.
(1045) In addition, anti-competitive practices in third countries with regard to … freight transportation to the EU/EEA are liable to have immediate, substantial and foreseeable effects within the EU/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. In this case the anti-competitive practices eliminating competition between carriers offering [inbound freight services] were liable to have such effects also on the provision of [freight] services by other carriers within the EEA, between the different hub airports used by carriers from third countries in the EEA and airports of destination of those shipments in the EEA to which the carrier from the third country does not fly.
(1046) Finally, it has to be underlined that the Commission has found a world-wide cartel. The cartel was implemented globally and the cartel arrangements concerning inbound routes formed an integral part of the single and continuous infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement. The cartel arrangements were in many cases organised centrally and the local personnel were merely implementing them. The uniform application of the surcharges on a world wide scale was a key element of the cartel.’
47      In the fifth place, in recital 1146 of the contested decision, the Commission found that the cartel at issue had started on 7 December 1999 and lasted until 14 February 2006. In the same recital, 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 (‘intra-EEA routes’);
–        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.
48      In so far as the applicants are concerned, the Commission found that the duration of the infringement was from 25 February 2003 to 14 February 2006.
49      In the sixth place, in Section 8 of the contested decision, the Commission examined the remedies to be taken and the fines to be imposed.
50      As regards, in particular, its determination of the amount of the fines, the Commission stated that it took into account the gravity and duration of the single and continuous infringement as well as possible aggravating and mitigating circumstances. To that end, it applied the 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; ‘the 2006 Guidelines’).
51      In recitals 1184 and 1185 of the contested decision, the Commission stated that the basic amount of the fine consisted of a proportion of up to 30% of the value of the undertaking’s sales, depending on the gravity of the infringement, multiplied by the number of years of the undertaking’s participation in the infringement, plus an additional amount of between 15 and 25% of the value of sales (‘the additional amount’).
52      In recital 1197 of the contested decision, the Commission determined the value of sales by adding together, for 2005 – that being the last full year of the single and continuous infringement – turnover from flights in both directions on intra-EEA routes, on EU‑third country routes, on EU‑Switzerland routes, and on non-EU EEA‑third country routes. It also took into account the accession of new Member States to the EU in 2004.
53      In recitals 1198 to 1212 of the contested decision, taking into account the nature of the infringement (horizontal price-fixing agreements), the combined market share of the incriminated carriers (34% worldwide and at least as much on the intra-EEA and EEA‑third country routes), the geographic scope of the cartel at issue (worldwide) and the fact that the cartel had actually been implemented, the Commission set the gravity factor at 16%.
54      In recitals 1214 to 1217 of the contested decision, the Commission determined the duration of the applicants’ participation in the single and continuous infringement as follows, according to the routes concerned:
–        in so far as it concerned intra-EEA routes, from 25 February 2003 to 14 February 2006, equating to 2 years and 11 months and giving rise to a multiplier of 2 11/12;
–        in so far as it concerned EU‑third country routes, from 1 May 2004 to 14 February 2006, equating to one year and nine months and giving rise to a multiplier of 1 9/12;
–        in so far as it concerned EU‑Switzerland routes, from 25 February 2003 to 14 February 2006, equating to 2 years and 11 months and giving rise to a multiplier of 2 11/12;
–        in so far as it concerned non-EU EEA‑third country routes, from 19 May 2005 to 14 February 2006, equating to eight months and giving rise to a multiplier of 8⁄12.
55      In recital 1219 of the contested decision, the Commission found that, given the specific circumstances of the case and taking into account the criteria mentioned in paragraph 53 above, the additional amount should be set at 16% of the value of sales.
56      Consequently, in recitals 1240 to 1242 of the contested decision, the basic amount to be imposed on the applicants was assessed at EUR 27 000 000 and, after a reduction of 50% on the basis of point 37 of the 2006 Guidelines (‘the general 50% reduction’) ) to reflect the fact that part of the services relating to inbound routes and routes departing from the EEA to third countries (‘outbound routes’) was performed outside the territory covered by the EEA Agreement and that part of the harm was therefore likely to have occurred outside that territory, the basic amount of the applicant’s fine was fixed at EUR 13 700 000.
57      In recitals 1258 and 1259 of the contested decision, pursuant to point 29 of the 2006 Guidelines, on the ground that the applicants’ participation in the single and continuous infringement was limited, the Commission granted the applicants, on account of mitigating circumstances, a reduction of 10% of the basic amount of the fine.
58      In recitals 1264 and 1265 of the contested decision, pursuant to point 29 of the 2006 Guidelines, the Commission granted the incriminated carriers an additional reduction of 15% in the basic amount of the fine (‘the general 15% reduction’), on the ground that certain regulatory regimes had encouraged the cartel at issue.
59      Consequently, in recital 1293 of the contested decision, the Commission set the basic amount of the applicants’ fine, after adjustment, at EUR 10 275 000.
60      In recitals 1339 to 1346 of the contested decision, the Commission took into account the applicants’ contribution in the context of their leniency application and applied a reduction of 20% to the amount of the fine, with the result that, as stated in recital 1404 of the contested decision, the amount of the fine imposed on the applicants was set at EUR 8 220 000.
61      The operative part of the contested decision, in so far as it relates to the applicants, reads as follows:
‘Article 1
By coordinating their pricing behaviour in the provision of airfreight services on a global basis with respect to the [FSC], the [SSC] 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 of the TFEU and Article 53 of [the] EEA Agreement as regards [intra-EEA routes], for the following periods:
…
(i)      [the first applicant] from 25 February 2003 until 14 February 2006;
(j)      [the second applicant] from 25 February 2003 until 14 February 2006;
…
(2)      The following undertakings infringed Article 101 of the TFEU as regards [EU‑third country routes], for the following periods:
…
(i)      [the first applicant] from 1 May 2004 until 14 February 2006;
(j)      [the second applicant] from 1 May 2004 until 14 February 2006;
…
(3)      The following undertakings infringed Article 53 of the EEA Agreement as regards [non-EU EEA‑third country routes], for the following periods:
…
(i)      [the first applicant] from 19 May 2005 until 14 February 2006;
(j)      [the second applicant] from 19 May 2005 until 14 February 2006;
…
(4)      The following undertakings infringed Article 8 of the [EC‑Switzerland Air Transport Agreement] as regards [EU‑Switzerland routes], for the following periods:
…
(i)      [the first applicant] from 25 February 2003 until 14 February 2006;
(j)      [the second applicant] from 25 February 2003 until 14 February 2006;
…
Article 2
[The Decision of 9 November 2010] is amended as follows:
In Article 5, points (j), (k) and (l) are repealed.
Article 3
For the single and continuous infringement referred to in Article 1 (and as regards British Airways … also for the aspects of Articles 1 to 4 of [the Decision of 9 November 2010] that have become final), the following fines are imposed:
…
i)      [the applicants] jointly and severally: EUR 8 220 000;
…
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.
Article 5
This Decision is addressed to:
…
[the applicants]
…’
II.    Procedure and forms of order sought
62      By application lodged at the Court Registry on 31 May 2017, the applicants brought the present action.
63      The Commission lodged its defence at the Court Registry on 29 September 2017.
64      The applicants lodged their reply at the Court Registry on 29 December 2017.
65      The Commission lodged its rejoinder at the Court Registry on 1 March 2018.
66      On 24 April 2019, on a proposal from the Fourth Chamber, the Court decided, pursuant to Article 28 of its Rules of Procedure, to assign the present case to a chamber sitting in extended composition.
67      On 27 June 2019, in the context of the measures of organisation of procedure laid down in Article 89 of the Rules of Procedure, the Court put written questions to the parties. The latter replied within the prescribed period.
68      At the hearing on 12 July 2019, the parties presented oral argument and answered the questions put by the Court.
69      By order of 31 July 2020, the Court (Fourth Chamber, Extended Composition), considering that it lacked sufficient information and that it was necessary to invite the parties to submit their observations on an argument which had not been debated between them, ordered the reopening of the oral part of the procedure pursuant to Article 113 of the Rules of Procedure.
70      The parties replied within the prescribed period to a series of questions put by the Court on 4 August 2020, and then submitted observations on their respective replies.
71      By decision of 6 November 2020, the Court again closed the oral part of the procedure.
72      The applicants claim that the Court should:
–        annul the contested decision in so far as it concerns the applicants;
–        in the alternative, reduce the fine imposed on them in the contested decision;
–        order the Commission to pay the costs.
73      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicants to pay the costs.
III. Law
74      In their action, the applicants put forward both a claim for annulment of the contested decision and a claim for a reduction in the amount of the fine imposed on them.
A.      The claim for annulment
75      The applicants put forward seven pleas in law in support of their claim for annulment. Those pleas allege:
–        first, errors of law and fact in the finding that the second applicant participated in the single and continuous infringement in so far as it relates to the SSC and the refusal to pay commission;
–        second, errors of law and fact in the finding that the second applicant participated in the infringement in so far as it relates to the FSC;
–        third, errors in the finding of liability on the applicants’ part with respect to the routes identified in Article 1(1), (3) and (4) of the contested decision;
–        fourth, errors of fact and law and a failure to state reasons in connection with the finding of a ‘worldwide cartel’;
–        fifth, errors of fact and law and a failure to state reasons in connection with the finding of that infringement;
–        sixth, breach of the rights of the defence and failure to state reasons;
–        seventh, errors of law and fact and a failure to state reasons in connection with the calculation of the fine.
76      The Court considers that it is appropriate to examine, in the first place, the plea, raised of its own motion, alleging a lack of jurisdiction on the part of the Commission, under Article 11 of the EC‑Switzerland Air Transport Agreement, to find and penalise an infringement of Article 53 of the EEA Agreement on routes between airports located in countries which are contracting parties to the EEA Agreement and which are not members of the EU and airports located in Switzerland (‘non-EU EEA‑Switzerland routes’), and, in the second place, the third and sixth pleas in law, in the third place, the fourth and fifth pleas in law, in the fourth place, the second and first pleas in law, and, in the fifth place, the seventh plea in law.
1.      The plea, raised of the Court’s own motion, alleging lack of jurisdiction on the part of the Commission under the EC‑Switzerland Air Transport Agreement to find and penalise an infringement of Article 53 of the EEA Agreement on non-EU EEA‑Switzerland routes
77      As a preliminary point, it should be recalled that it is for the Courts of the European Union to examine of their own motion the plea, which is a matter of public policy, alleging a lack of jurisdiction on the part of the author of the contested measure (see, to that effect, judgment of 13 July 2000, Salzgitter v Commission, C‑210/98 P, EU:C:2000:397, paragraph 56).
78      According to settled case-law, the Courts of the European Union cannot, as a general rule, base their decisions on a plea raised of their own motion – even one involving a matter of public policy – without first having invited the parties to submit their observations in that regard (see judgment of 17 December 2009, Review M v EMEA, C‑197/09 RX‑II, EU:C:2009:804, paragraph 57 and the case-law cited).
79      In the present case, the Court takes the view that it has a duty to examine of its own motion whether the Commission exceeded its own jurisdiction on the basis of the EC‑Switzerland Air Transport Agreement as regards non-EU EEA‑Switzerland routes by finding, in Article 1(3) of the contested decision, that there had been an infringement of Article 53 of the EEA Agreement on non-EU EEA‑third country routes, and invited the parties to submit their observations in that connection in the context of the measures of organisation of procedure.
80      The applicants submit that the reference to ‘third countries’ in Article 1(3) of the contested decision includes the Swiss Confederation. The applicants argued that the latter is a third country within the meaning of the EEA Agreement, the infringement of which is established in that article. The applicants infer from this that the Commission, in that article, found an infringement of Article 53 of the EEA Agreement on non-EU EEA‑Switzerland routes, and thus exceeded the limits of its jurisdiction under Article 11(2) of the EC‑Switzerland Air Transport Agreement. According to the applicants, the contested decision should therefore be annulled in its entirety, unless the finding of such an infringement is to be regarded as separable from the remainder of that decision.
81      The Commission replies that the reference in Article 1(3) of the contested decision to ‘routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and airports in third countries’ cannot be interpreted as including non-EU EEA‑Switzerland routes. In its view, the concept of ‘third country’ within the meaning of that article excludes the Swiss Confederation.
82      The Commission adds that, if it were to be held that it found the applicants liable for an infringement of Article 53 of the EEA Agreement on non-EU EEA‑Switzerland routes in Article 1(3) of the contested decision, it would have exceeded the limits which Article 11(2) of the EC‑Switzerland Air Transport Agreement imposes on its jurisdiction.
83      The Commission further claims that the contested decision should not be annulled in its entirety if Article 1(3) of the contested decision were to be interpreted as meaning that the Commission declared that it had jurisdiction to find and penalise an infringement of Article 53 of the EEA Agreement on EEA routes except inbound and outbound EU‑Switzerland routes. According to the Commission, such a finding is separable from the rest of that decision.
84      It is necessary to determine whether, as the applicants maintain, the Commission found an infringement of Article 53 of the EEA Agreement on non-EU EEA‑Switzerland routes in Article 1(3) of the contested decision and, where appropriate, whether it exceeded the limits of its jurisdiction under the EC‑Switzerland Air Transport Agreement.
85      In that regard, it should be recalled that the principle of effective judicial protection is a general principle of EU law now enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). That principle, which corresponds, in EU law, to Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, requires that the operative part of a decision by which the Commission finds infringements of the competition rules must be particularly clear and precise and that the undertakings held liable and penalised must be in a position to understand and to contest the imputation of that liability and the imposition of those penalties, as set out in the wording of that operative part (see judgment of 16 December 2015, Martinair Holland v Commission, T‑67/11, EU:T:2015:984, paragraph 31 and the case-law cited).
86      It is in the operative part of its decisions that the Commission must indicate the nature and extent of the infringements which it penalises. As regards in particular the scope and nature of the infringements penalised, it is thus in principle the operative part, and not the statement of reasons, which is important. Only where there is a lack of clarity in the terms used in the operative part should reference be made, for the purposes of interpretation, to the statement of reasons contained in a decision (see judgment of 16 December 2015, Martinair Holland v Commission, T‑67/11, EU:T:2015:984, paragraph 32 and the case-law cited).
87      In Article 1(3) of the contested decision, the Commission found that the applicants had ‘infringed Article 53 of the EEA Agreement as regards routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and airports in third countries’ from 19 May 2005 to 14 February 2006. The Commission neither expressly included non-EU EEA‑Switzerland routes amongst those routes, nor expressly excluded them.
88      It is therefore necessary to ascertain whether the Swiss Confederation is amongst the ‘third countries’ referred to in Article 1(3) of the contested decision.
89      In that regard, it should be noted that Article 1(3) of the contested decision distinguishes between ‘countries that are Contracting Parties of the EEA Agreement but not Member States’ and third countries. It is true that, as the applicants observe, the Swiss Confederation is not party to the EEA Agreement and therefore numbers amongst the third countries to that agreement.
90      It should, however, be recalled that, given the requirements of unity and consistency in the EU legal order, the same words used in the same act must be assumed to have the same meaning.
91      In Article 1(2) of the contested decision, the Commission found an infringement of Article 101 TFEU as regards ‘routes between airports within the European Union and airports outside the EEA’. That concept does not include airports within Switzerland, even though the Swiss Confederation is not party to the EEA Agreement and its airports should formally be regarded as being ‘outside the EEA’ or, in other words, in a third country to that agreement. Those airports are the subject of Article 1(4) of the contested decision, which finds an infringement of Article 8 of the EC‑Switzerland Air Transport Agreement, as regards ‘routes between airports within the European Union and airports in Switzerland’.
92      In accordance with the principle recalled in paragraph 90 above, it must therefore be assumed that the phrase ‘airports in third countries’ employed in Article 1(3) of the contested decision has the same meaning as the phrase ‘airports outside the EEA’ employed in Article 1(2) and, therefore, excludes airports in Switzerland.
93      In the absence of any indication in the operative part of the contested decision that the Commission intended to give a different meaning to the concept of ‘third countries’ referred to in Article 1(3) of the contested decision, it must be held that the concept of ‘third countries’ referred to in Article 1(3) thereof excludes the Swiss Confederation.
94      It therefore cannot be held that the Commission found the applicants liable for an infringement of Article 53 of the EEA Agreement as regards non-EU EEA‑Switzerland routes in Article 1(3) of the contested decision.
95      Since the operative part of the contested decision leaves no room for doubt, it is therefore solely for the sake of completeness that the Court adds that the grounds of that decision do not contradict that finding.
96      In recital 1146 of the contested decision, the Commission stated that the ‘anti-competitive arrangements’ which it had described infringed Article 101 TFEU from 1 May 2004 to 14 February 2006 ‘as regards air transport between airports within the [European Union] and airports outside the EEA’. In the relevant footnote (No 1514), the Commission stated the following: ‘For the purpose of this Decision, “airports outside the EEA” include airports in countries other than [the Swiss Confederation] and in Contracting Parties to the EEA Agreement’.
97      It is true that, where it described the scope of the infringement of Article 53 of the EEA Agreement in recital 1146 of the contested decision, the Commission did not refer to the concept of ‘airports outside the EEA’ but rather to ‘airports in third countries’. It cannot, however, be inferred therefrom that the Commission intended to give a different meaning to the concept of ‘airports outside the EEA’ for the purposes of applying Article 101 TFEU and to that of ‘airports in third countries’ for the purposes of applying Article 53 of the EEA Agreement. On the contrary, the Commission used those two phrases interchangeably in the contested decision. Thus, in recital 824 of the contested decision, the Commission stated that it ‘[would] not apply Article 101 TFEU to anti-competitive agreements and practices concerning air transport between [European Union] airports and airports in third countries that took place before 1 May 2004’. Similarly, in recital 1222 of that decision, as regards the end of SAS Consortium’s participation in the single and continuous infringement, the Commission referred to its jurisdiction on the basis of those provisions ‘on routes between the [European Union] and third countries and routes between Iceland, Norway and Liechtenstein and countries outside the EEA’.
98      The grounds of the contested decision therefore confirm that the concepts of ‘airports in third countries’ and ‘airports outside the EEA’ have the same meaning. In accordance with the definition set out in footnote 1514, it must therefore be held that both concepts exclude airports in Switzerland.
99      Contrary to the applicants’ arguments, recitals 1194 and 1241 of the contested decision do not advocate another outcome. Admittedly, the Commission referred, in recital 1194 of that decision, to ‘routes between the EEA and third countries, except routes between the [European Union] and Switzerland’. Similarly, in recital 1241 of that decision, in the context of the ‘determination of the value of sales on third country routes’, the Commission reduced by 50% the basic amount for ‘EEA‑third country routes, except routes between the [European Union] and Switzerland where the Commission is acting under the [EC‑Switzerland Air Transport Agreement]’. It could be considered, as the applicant observes in essence, that if the Commission took care to insert in those recitals the words ‘with the exception of routes between the [European] Union and Switzerland’, it is because it took the view that the Swiss Confederation fell within the scope of the concept of ‘third country’ in so far as the EEA‑third country routes were concerned.
100    The Commission acknowledged, furthermore, that it was possible that it had ‘inadvertently’ included in the value of sales the turnover which some of the incriminated carriers generated on non-EU EEA‑Switzerland routes during the period concerned. According to the Commission, the reason for this is that, in its request for information of 26 January 2009, it did not inform the carriers concerned that turnover on non-EU EEA‑Switzerland routes should be excluded from the value of sales on non-EU EEA‑third country routes.
101    It must nevertheless be found, as the Commission did, that those elements relate exclusively to the turnover to be taken into account for the purposes of calculating the basic amount of the fine, not of determining the geographical boundaries of the single and continuous infringement at issue here.
102    The present plea must therefore be rejected.
2.      The third plea in law, alleging errors in the imputation to the applicants of the single and continuous infringement on intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes
103    The applicants take issue with the Commission for having made a number of errors in imputing to them the single and continuous infringement on intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes. This plea consists, in essence, of three parts, alleging (i) the expiry of the limitation period, (ii) a lack of jurisdiction and breach of the obligation to state reasons and of the principles ne bis in idem and ‘international comity’ and (iii) infringement of the principle ne bis in idem.
(a)    The first part of the plea, alleging the expiry of the limitation period
104    The applicants claim that the limitation period expired in respect of the unlawful conduct referred to in Article 1(1), (3) and (4) of the contested decision. In their view, the limitation period started to run again from the adoption of the Decision of 9 November 2010 and was not suspended by the bringing of an action against that decision. They submit that that decision did not impute to them the unlawful conduct referred to in Article 1(1), (3) and (4) of the contested decision and that that action sought only the annulment of the Decision of 9 November 2010, so far as they were concerned.
105    The precedent set by the Court in its judgment of 20 April 1999, Limburgse Vinyl Maatschappij and Others v Commission (T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94, EU:T:1999:80), according to which the limitation period is suspended where the action results in the recognition of an error attributable to the Commission, must be distinguished, since the applicants did not in the present case seek to establish errors on the Commission’s part in relation to the sections of the operative part of the Decision of 9 November 2010 that did not concern them.
106    The existence of an acquittal in the Decision of 9 November 2010 is irrelevant. All that matters is the date on which the investigation was terminated. Article 25(4) of Regulation No 1/2003, which provides that an interruption of the limitation period applies for all the undertakings or associations of undertakings that have participated in the infringement, does not apply in the case of a suspension pursuant to Article 25(6) of that regulation.
107    Lastly, the present case is not a case in which the Commission found an infringement but did not impose penalties. In any event, that would have required the Commission to demonstrate that it had a legitimate interest in adopting a decision of that kind.
108    The applicants infer from this that Article 1(1), (3) and (4) of the contested decision must be annulled and that the evidence adduced in support of the findings made in those paragraphs in order to establish the finding referred to in Article 1(2) of that operative part must be rejected as inadmissible.
109    The Commission replies that the limitation period has not expired, in view of the suspension of the limitation period between the date on which the applicants lodged their action and the judgment of 16 December 2015, Latam Airlines Group and Lan Cargo v Commission (T‑40/11, not published, EU:T:2015:986). It does not matter, under Article 25(6) of Regulation No 1/2003, that the applicants contested only certain aspects of the Decision of 9 November 2010. Since proceedings on an action for annulment are matters of public record, there can be no doubt, in the Commission’s submission, that such proceedings have the effect of suspending the limitation period for all the undertakings which participated in the infringement, irrespective of the application of Article 25(4) of that regulation. Moreover, that decision describes a single and continuous infringement, irrespective of the routes concerned. It is in the light of that interpretation that the scope of the action for annulment brought by the applicants against that decision should be understood.
110    The Commission also submits that the Decision of 9 November 2010 did not definitively acquit the applicants of the single and continuous infringement concerning intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes.
111    Lastly, the Commission notes that, since it has the power to impose a fine, once it makes use of that power it is not required to explain further its legitimate interest in finding an infringement. In the rejoinder, it states that, if the Court were to consider that the limitation period had expired, it would not be a case in which the Commission had a legitimate interest in finding an infringement.
112    In the alternative, the Commission submits that the present part of the plea is ineffective, in so far as the contested decision does not impose any additional fine on the applicants concerning intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes.
113    It should be recalled that, pursuant to Article 25(1)(b), (2), (3) and (5) of Regulation No 1/2003, the limitation period for the power to impose a fine is to expire where:
–        the Commission did not impose a fine within five years from the day on which the infringement ceased (paragraph 1(b)) without any action interrupting the limitation period having been taken in the meantime (paragraph 3);
–        or at the latest within 10 years from the day on which the infringement ceased if interruptive actions have been taken (paragraph 5).
114    In addition, Article 25(6) of Regulation No 1/2003 provides that the limitation period is to be suspended for as long as the Commission’s decision is the subject of proceedings pending before the Court of Justice. Under paragraph 5 of that article, the limitation period of 10 years is to be extended by the period during which the limitation period is suspended in accordance with Article 25(6) of that regulation.
115    In accordance with Article 25(3) of Regulation No 1/2003, the limitation period is to be interrupted by any action taken by the Commission for the purpose of the investigation or proceedings in respect of an infringement notified to at least one undertaking which has participated in the infringement. In accordance with Article 25(4) of that regulation, the interruption of the limitation period is to apply for all the undertakings which have participated in the infringement in question.
116    It follows that the fact that an undertaking was not identified as having participated in the infringement in one or more actions taken for the purpose of the investigation or proceedings in respect of the infringement during the administrative procedure does not preclude the interruption of the limitation period from also applying to it, provided that the undertaking concerned is subsequently identified as having participated in the infringement (judgment of 31 March 2009, ArcelorMittal Luxembourg and Others v Commission, T‑405/06, EU:T:2009:90, paragraphs 143 and 144).
117    On the other hand, the Court of Justice has held that, unlike the erga omnes effect of the actions which interrupt the limitation period referred to in Article 25(3) and (4) of Regulation No 1/2003, the suspension of the limitation period which Article 25(6) of that regulation attaches to judicial proceedings takes effect only inter partes (judgment of 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, C‑201/09 P and C‑216/09 P, EU:C:2011:190, paragraph 148).
118    Thus, with respect to undertakings which have not brought actions against a final decision of the Commission, an action brought by another undertaking against the same final decision cannot have any suspensive effect (judgment of 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, C‑201/09 P and C‑216/09 P, EU:C:2011:190, paragraph 145).
119    Lastly, the fact that the Commission no longer has the power to impose fines on persons committing an infringement on account of the expiry of the limitation period does not in itself preclude the adoption of a decision finding that that infringement was committed, provided that the Commission demonstrates, in such a case, a legitimate interest in taking a decision finding such an infringement (see, by analogy, judgment of 6 October 2005, Sumitomo Chemical and Sumika Fine Chemicals v Commission, T‑22/02 and T‑23/02, EU:T:2005:349, paragraphs 131 and 132).
120    In the present case, it is not disputed that the starting point of the limitation period is the date on which the single and continuous infringement ceased, namely 14 February 2006, in accordance with Article 25(2) of Regulation No 1/2003.
121    Furthermore, the applicants submit that the last action interrupting the limitation period, within the meaning of Article 25(3) of Regulation No 1/2003, was the Decision of 9 November 2010, on the basis of which the limitation period expired on 9 November 2015, which the Commission does not dispute.
122    The Commission nevertheless submits, unlike the applicants, that the limitation period was suspended, in accordance with Article 25(6) of that regulation, so long as the proceedings which gave rise to the judgment of 16 December 2015, Latam Airlines Group and Lan Cargo v Commission (T‑40/11, not published, EU:T:2015:986) were pending, with the result that the limitation period had not expired on the date of adoption of the contested decision.
123    It is therefore necessary to determine whether the action brought by the applicants against the Decision of 9 November 2010 had the effect of suspending the five-year limitation period in respect of their unlawful conduct found in Article 1(1), (3) and (4) of the contested decision, with regard to intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes respectively.
124    In that regard, it should be noted that, in order to conclude that the suspensive effect of the limitation period of an action against a Commission decision imposing a penalty is inter partes
(paragraph 117 above), the Court of Justice has relied in particular on the extent of the matter to be tried by the Court of the European Union before which the action for annulment is brought, recalling that the matter to be tried by the Courts of the European Union relates only to those aspects of the decision which concern the applicant for annulment (see, to that effect, judgment of 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, C‑201/09 P and C‑216/09 P, EU:C:2011:190, paragraph 142). It follows that the scope of the action for annulment must be consistent with the scope of the effect on limitation attaching thereto under Article 25(6) of Regulation No 1/2003.
125    It is therefore necessary to determine the scope of the applicants’ action against the Decision of 9 November 2010 and, in particular, whether, in the context of the dispute brought before it by the applicants, the matter to be tried by the Court concerned conduct relating to intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes.
126    In that regard, it is settled case-law that the assessments made in the grounds for a decision are not in themselves capable of forming the subject of an action for annulment and can be subject to review by the Courts of the European Union only to the extent that, as grounds for an act adversely affecting a person’s interests, they constitute the necessary basis for the operative part of that act (see judgment of 11 June 2015, Laboratoires CTRS v Commission, T‑452/14, not published, EU:T:2015:373, paragraph 51 and the case-law cited).
127    Furthermore, the Court of Justice has held that a decision adopted in a competition matter with regard to several undertakings, although drafted and published as a single decision, must be regarded as a group of individual decisions establishing, in relation to each of the undertakings to which it is addressed, the breach or breaches which that undertaking has been found to have committed and, where appropriate, imposing on it a fine (judgment 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 100). The Court of Justice has also held that, if an addressee of a decision decides to bring an action for annulment, the matter to be tried by the Courts of the European Union relates only to those aspects of the decision which concern that addressee, whereas aspects concerning other addressees do not form part of the matter to be tried by the Courts of the European Union, without prejudice to special circumstances (judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 66).
128    Accordingly, the subject matter of the action brought by the applicants against the Decision of 9 November 2010 must be confined to the operative part of that decision, in so far as it concerned the applicants, and to the grounds which constituted the necessary basis for that operative part. That operative part, in so far as it found that the undertakings to which that decision was addressed participated in the unlawful conduct referred to therein, made such a finding in respect of the applicants only with regard to EU‑third country routes (Article 2). By contrast, that operative part, in so far as it did not refer to the applicants in Articles 1, 3 and 4 thereof, did not find them liable for the conduct relating to intra-EEA routes, non-EU EEA‑third country routes and to EU‑Switzerland routes and did not therefore constitute an aspect of the decision that concerned the applicants capable of being challenged before the Court.
129    That finding is not called into question by the fact, put forward by the Commission, that the Decision of 9 November 2010 did not definitively acquit the applicants in respect of intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes Admittedly, the existence of such an acquittal is relevant for the purposes of the application of the principle ne bis in idem which precludes, in the sphere of competition, an undertaking being found liable or proceedings being brought against it afresh on the grounds of anticompetitive conduct for which it has been penalised or declared not liable by an earlier decision that can no longer be challenged (see judgment of 14 February 2012, Toshiba Corporation and Others, C‑17/10, EU:C:2012:72, paragraph 94 and the case-law cited). On the other hand, as the applicants correctly point out, the existence of such an acquittal is irrelevant for the purpose of determining whether the limitation period has expired, since, unlike the principle ne bis in idem, that acquittal does not presuppose an earlier positive action by the prosecuting authority in respect of the person concerned.
130    The finding in question is also not called into question by the fact, put forward by the Commission at the hearing, that the applicants sought the annulment of the Decision of 9 November 2010 in its entirety.
131    That decision being regarded as a bundle of individual decisions establishing, with regard to each of the carriers it incriminates, the offence(s) for which they are liable, the applicants, by seeking the annulment of the entire decision, sought annulment only of the individual decision addressed to them, which did not impute to them the conduct relating to intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes. That is confirmed by the operative part of the judgment of 16 December 2015, Latam Airlines Group and Lan Cargo v Commission (T‑40/11, not published, EU:T:2015:986), which states that the Decision of 9 November 2010 is annulled in so far as it concerned the applicants.
132    In the light of the foregoing, it must be held that the action brought by the applicants against the Decision of 9 November 2010 was not capable of resulting in the suspension of the limitation period provided for in Article 25(6) of Regulation No 1/2003, as regards the unlawful conduct relating to intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes.
133    Accordingly, in the absence of suspension of the limitation period, and in so far as the last action interrupting the limitation period, within the meaning of Article 25(3) of Regulation No 1/2003, occurred, at the latest, by the adoption of the Decision of 9 November 2010 (see paragraph 121 above), the Commission’s exercise of its power to impose penalties in respect of the conduct at issue was time-barred as from 9 November 2015, that is to say, on a date prior to the date of adoption of the contested decision.
134    It follows that, by penalising the applicants in the contested decision for the single and continuous infringement in respect of intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes, the Commission infringed the rules on limitation laid down in Article 25 of Regulation No 1/2003.
135    As regards the argument alleging that this part of the plea is ineffective, in so far as the contested decision does not impose on the applicants any additional fine in respect of intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes, it must be recalled that the Courts of the European Union may dismiss a plea or complaint as ineffective where they find that that plea or complaint is not capable, in the event that it is well founded, of leading to the annulment sought (judgment of 19 November 2009, Michail v Commission, T‑50/08 P, EU:T:2009:457, paragraph 59).
136    In that regard, it should be noted that the Commission concedes, in its written pleadings, that it does not have a legitimate interest in finding the existence of that unlawful conduct in the event that its power to impose a fine in that respect is time-barred. No justification for the existence of such an interest has thus been put forward before the Court by the Commission, even though the burden of establishing the existence of that interest rests with the latter (see, to that effect, judgments of 6 October 2005, Sumitomo Chemical and Sumika Fine Chemicals v Commission, T‑22/02 and T‑23/02, EU:T:2005:349, paragraph 136, and of 16 November 2011, Stempher and Koninklijke Verpakingsindustrie Stempher v Commission, T‑68/06, not published, EU:T:2011:670, paragraph 44).
137    In the absence of proof of such an interest, the fact that the Commission no longer has the power to impose fines on the perpetrators of an infringement because of the expiry of the limitation period precludes the adoption of a decision finding an infringement committed by the applicants as regards intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes, as is apparent from the principles referred to in paragraph 119 above.
138    It follows that the present part of the plea may lead to the annulment of Article 1(1)(i) and (j), (3)(i) and (j) and (4)(i) and (j) of the contested decision, even though the Commission did not impose a fine on the applicants in connection with the intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes referred to in those paragraphs of that article. Accordingly, this part of the plea cannot be rejected as ineffective.
139    Consequently, the present part of the plea must be upheld and Article 1(1)(i) and (j), (3)(i) and (j), and (4)(i) and (j) of the contested decision must be annulled.
140    By contrast, the plea of inadmissibility raised by the applicants with regard to the evidence adduced in support of the findings made in Article 1(1)(i) and (j), (3)(i) and (j) and (4)(i) and (j) of the contested decision, which, according to the applicants, cannot be used to establish the infringement referred to in Article 1(2) of that decision, must be rejected. Although the expiry of the limitation period as regards the power to impose fines on the perpetrators of an infringement has an impact not only on that power but also on the Commission’s power to find the existence of that infringement, it does not, however, have any effect on whether the Commission may use evidence to establish the existence of other unlawful conduct, even if that evidence also served to establish the infringement covered by the limitation period.
141    In that regard, it should be borne in mind that the prevailing principle under EU law is that evidence may be freely adduced and that the only relevant criterion for the purpose of assessing the evidence adduced relates to its credibility (see judgment of 27 April 2017, FSL and Others v Commission, C‑469/15 P, EU:C:2017:308, paragraph 38 and the case-law cited). Although it may be necessary to derogate from that principle where, otherwise, that would amount to accepting evidence obtained in complete disregard of the procedure laid down for gathering it and designed to protect the fundamental rights of the interested persons (judgment of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 47), the applicants have failed to explain how the evidence in question, which, moreover, has not been identified by them, falls within that category or, more generally, how it was obtained by the Commission by unlawful means.
(b)    The second part of the plea, alleging a lack of jurisdiction and infringements of the obligation to state reasons and of the principles ne bis in idem and ‘international comity’
142    The applicants complain that the Commission exceeded the limits of its powers and infringed the obligation to state reasons and the principles ne bis in idem and ‘international comity’ when establishing the duration of the single and continuous infringement. They raise, in essence, three complaints in support of that argument, alleging, first, a lack of jurisdiction and an infringement of the obligation to state reasons relating to the finding of a ‘worldwide cartel’ and an infringement of Article 101 TFEU on intra-EU routes before 1 May 2004 and Article 53 of the EEA Agreement on intra-EEA routes before 19 May 2005, second, a lack of jurisdiction relating to the finding of an infringement of Article 8 of the EC‑Switzerland Air Transport Agreement during the whole period of the infringement, and, third, an infringement of the principles ne bis in idem and ‘international comity’ as regards that period.
(1)    The first complaint
143    The applicants take issue with the Commission for having exceeded the limits of its jurisdiction by finding that they participated in a ‘worldwide cartel’ and by investigating, and finding that they participated in, an infringement of Article 101 TFEU on intra-EU routes before 1 May 2004 and Article 53 of the EEA Agreement on intra-EEA routes before 19 May 2005.
144    According to the applicants, EU law does not confer on the Commission the power to conduct an investigation and find a ‘worldwide cartel’. That concept appears neither in the Treaty nor in the relevant regulations.
145    The applicants infer from this that the concept of a ‘worldwide cartel’ may be interpreted in two ways. First, it is possible to interpret that concept as referring to an unwritten sui generis legal instrument. They submit that, if that were the case, that concept would refer to something broader than, and different from, an infringement of Article 101 TFEU or Article 53 of the EEA Agreement. However, there is no legal basis to justify that conclusion and, in the absence of any explanation in the contested decision, it must be concluded that that decision is vitiated by an infringement of the obligation to state reasons.
146    Second, it is possible to interpret the reference to a ‘worldwide cartel’ as referring to an infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC‑Switzerland Air Transport Agreement, the anticompetitive object of which extended to all routes worldwide. However, the Commission does not have jurisdiction in that case either. According to the applicants, the Commission did not have jurisdiction to apply Article 101 TFEU to EU‑third country routes before 1 May 2004. In so far as the second applicant operated only on those routes, it was only on those routes that it could have contributed to the anticompetitive objective by its ‘own conduct’ within the meaning of the judgment of 8 July 1999, Commission v Anic Partecipazioni (C‑49/92 P, EU:C:1999:356).
147    In the reply, the applicants complain that the Commission failed to demonstrate how the second applicant’s ‘own conduct’, within the meaning of the judgment of 8 July 1999, Commission v Anic Partecipazioni (C‑49/92 P, EU:C:1999:356, paragraphs 83, 87 and 203), was likely to have immediate and substantial restrictive effects on competition and to have an effect on trade between Member States, even though it was limited to EU‑third country routes. Moreover, the Commission itself acknowledged in recital 917 of the contested decision that it did not carry out any economic assessment.
148    The applicants add that the institution’s recourse to the concept of a single and continuous infringement cannot have the effect of rendering unlawful conduct that was lawful and in relation to which the Commission had no jurisdiction.
149    As for the Commission’s reliance, in recital 890 of the contested decision, on the theoretical possibility of the applicants operating on any route in the world, it was made without any proper assessment, is mistaken and irrelevant. In their reply, the applicants state that the Commission failed to establish that their conduct constituted a restriction of competition producing immediate and substantial anticompetitive effects in the EEA and an effect on trade between Member States.
150    The Commission disputes the applicants’ line of argument.
151    It must be held that this complaint is based on a false premiss. Contrary to the applicants’ submission, the reference to a ‘worldwide cartel’ in the contested decision refers neither to an ‘unwritten sui generis legal basis’, nor to an infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC‑Switzerland Air Transport Agreement, the anticompetitive object of which extends to all routes worldwide. The reference to the coordination of the conduct of the incriminated carriers ‘[in] their pricing behaviour in the provision of airfreight services on a global basis’ in the introductory paragraph of Article 1 of that decision is a mere finding of fact which the Commission classified in Article 1(1) to (4) of the contested decision as an infringement of the competition rules applicable on routes in respect of which it found that, during the periods in question, they fell within its jurisdiction, namely, intra-EEA routes between 7 December 1999 and 14 February 2006 (paragraph 1), EU‑third country routes between 1 May 2004 and 14 February 2006 (paragraph 2), non-EU EEA‑third country routes between 19 May 2005 and 14 February 2006 (paragraph 3) and EU‑Switzerland routes between 1 June 2002 and 14 February 2006 (paragraph 4). By contrast, the Commission did not find an infringement on routes between airports outside the EEA.
152    That distinction is reflected in the grounds of the contested decision. These grounds refer, on the one hand, to an infringement of the applicable competition rules, the geographical scope of which is limited to specified routes (recitals 1146 and 1187) and, on the other hand, to a ‘worldwide cartel’ (recitals 74, 112, 832 and 1300), ‘worldwide nature’ (recital 887) and ‘implemented globally’(recital 1046).
153    It is true that recital 1210 of the contested decision departs from the rule, in that it refers to ‘the geographic scope of the infringement [which] was worldwide’. However, it must be stated that the context of that isolated reference to a worldwide infringement tends to show that it is a mere clerical error and should read ‘the geographic scope of the cartel [at issue] was worldwide’. That reference is followed by the following sentences:
‘For the purposes of establishing the gravity of the infringement, this means that the cartel covered the whole of the EEA and Switzerland. That includes airfreight services … on routes in both directions between airports within the EEA, on routes between airports in countries within the EU and airports outside the EEA, on routes between airports in the EU and airports in Switzerland and on routes between airports in the EEA Contracting Parties not being Member States and airports in third countries’.
154    Nor did the Commission find that the single and continuous infringement had as its object the restriction of competition on routes between airports situated outside the EEA. As is apparent in particular from recitals 872 and 903 of the contested decision, the Commission considered that the object of that infringement was to restrict competition within the European Union, the EEA and Switzerland.
155    Moreover, in so far as, irrespective of the use of the concept of ‘worldwide cartel’, the applicants put forward an argument alleging a lack of jurisdiction in that they were held liable for an infringement of Article 101 TFEU on intra-EU routes before 1 May 2004 and of Article 53 of the EEA Agreement on intra-EEA routes before 19 May 2005, it should be recalled that the first part of the present plea in law has been upheld and, consequently, the contested decision was annulled in so far as it imputed to the applicants the single and continuous infringement in respect of those routes.
156    It follows that the examination of such an argument has become devoid of purpose.
(2)    The second complaint
157    The applicants claim that, for reasons identical to those set out in connection with the first complaint, the Commission did not have the jurisdiction to hold the applicants liable for an infringement of Article 8 of the EC‑Switzerland Air Transport Agreement in respect of EU‑Switzerland routes.
158    The Commission disputes the applicants’ line of argument.
159    By the present complaint, the applicants complain, in essence, that the Commission unlawfully held them liable for the single and continuous infringement in so far as it concerned EU‑Switzerland routes. The upholding of the first part of the present plea and, consequently, the annulment of Article 1(4)(i) and (j) of the contested decision rendered it unnecessary to examine the present complaint.
(3)    The third complaint
160    The applicants submit that the Commission infringed the principles of ‘international comity’ and ne bis in idem by penalising the applicants for conduct outside the EEA. According to the applicants, in so doing, the Commission prevents the authorities of third countries from penalising them on account of the latter principle and penalised them for conduct in respect of which the South Korean, Brazilian, Swiss, Australian, New Zealand and South African competition authorities acquitted them, within the meaning of Article 50 of the Charter. In their reply, they add that they cannot be required to cite cases in which a competition authority has not been able to impose a fine on them by reason of the principle in question. They submit that the burden of proof lies with the Commission and that, in any event, they cannot be required to prove a negative.
161    The Commission disputes the applicants’ line of argument.
162    In so far as the applicants complain that the Commission infringed the principle ne bis in idem by penalising them for conduct outside the EEA and thus preventing the competition authorities of third countries from penalising them in turn, it should be recalled that that principle must be respected in proceedings for the imposition of fines under competition law. As noted in paragraph 129 above, that principle precludes, in the sphere of competition, an undertaking being found liable or proceedings being brought against it afresh on the grounds of anticompetitive conduct for which it has been penalised or declared not liable by an earlier decision that can no longer be challenged.
163    The principle ne  bis in idem can therefore be relied on only against a decision closing a possible second set of proceedings, which relates to the same infringement in respect of which the applicants were convicted or prosecuted in the context of the first set of proceedings. Conversely, that principle cannot be relied on against the decision closing that first set of proceedings (see, to that effect, judgment of 27 February 2014, LG Display and LG Display Taiwan v Commission, T‑128/11, EU:T:2014:88, paragraph 242).
164    In the present case, the applicants rely on the principle ne bis in idem against the contested decision on the ground that that decision was capable of preventing the subsequent initiation of other proceedings relating to the unlawful conduct.
165    The applicants are therefore wrong to complain that the Commission infringed the principle ne bis in idem by penalising them for conduct outside the EEA and by thus preventing the competition authorities of third countries from penalising them in turn.
166    In addition, it must be held, as the Commission contends, that the present complaint is purely speculative. In that regard, it must be borne in mind that, contrary to what the applicants submit, it is indeed for them to discharge the burden of proving an infringement of the principle ne bis in idem
that they claim. In accordance with settled case-law, it is in principle for the person alleging facts in support of a claim to adduce proof of such facts (order of 25 January 2008, Provincia di Ascoli Piceno and Comune di Monte Urano v Apache Footwear and Others, C‑464/07 P(I), not published, EU:C:2008:49, paragraph 9).
167    In the present case, the applicants have not proved that the Commission’s decision to penalise them for their participation in the single and continuous infringement was capable of preventing them from being prosecuted and penalised for their participation in the cartel at issue in even one third country.
168    In so far as the applicants take issue with the Commission for having penalised them for conduct for which the competition authorities of third countries had already penalised them, it should be borne in mind that, when the Commission imposes penalties under EU competition law for the unlawful conduct of an undertaking, even conduct originating in an international cartel, it seeks to safeguard free competition within the internal market which, pursuant to Article 3 TEU read in conjunction with Protocol No 27 on the internal market and competition, annexed to the EU Treaty and the FEU Treaty as a component of the internal market, constitutes a fundamental objective of the European Union. On account of the specific nature of the legal interests protected at EU level, the Commission’s assessments pursuant to its relevant powers may diverge considerably from those of authorities of non-member States. It follows that, as was found in recital 1196 of the contested decision, the principle ne bis in idem does not apply to situations in which the legal systems and competition authorities of non-member States intervene within their own jurisdiction (judgments of 29 June 2006, Showa Denko v Commission, C‑289/04 P, EU:C:2006:431, paragraphs 55 and 56, and of 10 May 2007, SGL Carbon v Commission, C‑328/05 P, EU:C:2007:277, paragraphs 27 and 28).
169    In the present case, the applicants rely specifically on the decision of the South Korean, Brazilian, Swiss, Australian, New Zealand and South African competition authorities. The principle ne bis in idem therefore does not apply to the situation complained of by the applicants.
170    As to the principle of ‘international comity’, it is sufficient to note that it is not capable of obliging the Commission to take account of proceedings and penalties to which the applicants may be subject in non-Member States in the field of competition law (see, to that effect, judgment of 29 June, Showa Denko v Commission, C‑289/04 P, EU:C:2006:431, paragraphs 57 and 58). A fortiori, such a principle cannot compel the Commission to take account of the possibility that its decision to penalise conduct adopted outside the EEA, but which falls within its jurisdiction ratione loci, may preclude a competition authority of a third country from prosecuting and penalising that conduct.
171    The present complaint must therefore be rejected and, accordingly, the second part of this plea must be rejected in its entirety.
(c)    The third part of the plea, alleging a breach of the principle ne bis in idem
172    The applicants claim that the Commission infringed the principle ne bis in idem by declaring them liable for the single and continuous infringement in so far as it concerns intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes, when the Commission acquitted them of the same infringement in the Decision of 9 November 2010. They claim that the statement of reasons set out in recital 1124 of that decision is explicit in that regard and consistent with the operative part, in so far as it relates to them. They also claim that the solution adopted by the Court of Justice in the judgment 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), according to which the principle ne bis in idem is not applicable in the event of annulment on ‘formal grounds’, cannot be transposed to the present case. According to the applicants, the annulment ordered by the General Court in the judgment of 16 December 2015, Latam Airlines Group and Lan Cargo v Commission (T‑40/11, not published, EU:T:2015:986), does not concern a purely formal ground, but a defective statement of reasons, the remedying of which requires substantial modifications to that decision.
173    The Commission disputes the applicants’ line of argument.
174    By the present part of the plea, the applicants complain, in essence, that the Commission unlawfully held them liable for the single and continuous infringement in so far as it concerned intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes. The upholding of the first part of the present plea and, consequently, the annulment of Article 1(1)(i) and (j), (3)(i) and (j), 4(i) and (j) of the contested decision rendered it unnecessary to examine the present part of the plea.
3.      The sixth plea in law, alleging a breach of the rights of the defence and failure to state reasons
175    The present plea, by which the applicants complain that the Commission infringed their rights of the defence and the obligation to state reasons, consists, in essence, of three parts. They allege, first, an infringement of the right to be heard as regards certain findings and certain documents relied on against the applicants in the contested decision, second, discrepancies between the operative part and the grounds of the contested decision and, third, a breach of the obligation to state reasons and of the right to be heard as regards the abandonment of certain objections in the Statement of Objections.
(a)    The first part, alleging an infringement of the applicants’ right to be heard with respect to certain findings and certain documents relied on against them in the contested decision
176    The applicants complain that the Commission infringed their right to be heard, first, as regards the second applicant’s awareness of the elements of the single and continuous infringement relating to the SSC and the refusal to pay commission, second, as regards the arguments supporting the finding of a worldwide cartel and, third, as regards the importance of certain evidence used against them in the contested decision. It is appropriate, at the outset, to recall the principles applicable to the examination of those three complaints.
(1)    The applicable principles
177    In that regard, it should be recalled that the statement of objections constitutes the procedural safeguard applying the fundamental principle of EU law which requires observance of the rights of defence in all proceedings (judgment of 3 September 2009, Papierfabrik August Koehler and Others v Commission, C‑322/07 P, C‑327/07 P and C‑338/07 P, EU:C:2009:500, paragraph 35).
178    That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it (judgment of 3 September 2009, Papierfabrik August Koehler and Others v Commission, C‑322/07 P, C‑327/07 P and C‑338/07 P, EU:C:2009:500, paragraph 36).
179    In that regard, only the documents cited or mentioned in the statement of objections are admissible evidence as against the addressee of the statement of objections (judgment of 30 September 2003, Atlantic Container Line and Others v Commission, T‑191/98 and T‑212/98 to T‑214/98, EU:T:2003:245, paragraph 162). Furthermore, documents annexed to the statement of objections and referred to therein in support of a specific objection can be used in the decision in support of a different objection against the same undertaking only if the latter could reasonably deduce, from the statement of objections and the content of the documents, the conclusions which the Commission intended to draw from them (see, to that effect, judgments of 10 March 1992, Shell v Commission, T‑11/89, EU:T:1992:33, paragraph 62, and of 28 April 2010, Amann balances Söhne and Cousin Filterie v Commission, T‑446/05, EU:T:2010:165, paragraph 315).
180    Article 27(1) of Regulation No 1/2003 and Article 11(2) of Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18), which apply the principle of respect for the rights of the defence, require the Commission to adopt in its final decision only objections on which the undertakings and associations of undertakings concerned have had the opportunity to put their case.
181    At the same time, account must be taken of the provisional nature of the statement of objections, which implies that the existence of differences between the latter document and the final decision is not only possible, but permissible, in so far as the final decision reflects all the factors raised and discussed during the administrative procedure, including after the statement of objections was sent (see, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 67).
(2)    The first complaint, alleging an infringement of the right to be heard as regards the second applicant’s awareness of the elements of the single and continuous infringement relating to the SSC and the refusal to pay commission
182    The applicants essentially complain that the Commission breached their right to be heard in finding in the contested decision that the second applicant had been aware of the elements of the single and continuous infringement relating to the SSC and the refusal to pay commission, without this being apparent from the Statement of Objections. According to the applicants, first, the second applicant was not expressly named among the participants in those elements. Second, nothing in the Statement of Objections indicated that the second applicant was aware of the coordination of those elements.
183    In those circumstances, the applicants submit that they could reasonably assume that the Commission did not intend to hold them liable for the elements of the single and continuous infringement relating to the SSC and the refusal to pay commission. They did not take a position on this in their reply to the Statement of Objections. They assert that the Commission was, moreover, aware of the understanding which they had of the allegations made against them.
184    In addition, the applicants submit that, if they had known that the Commission intended to hold them liable for the elements of the single and continuous infringement relating to the SSC and to the refusal to pay commission, they would have been able to express their views in that regard in their reply to the Statement of Objections and, therefore, better defend themselves in the administrative procedure.
185    The Commission disputes the applicants’ line of argument.
186    In the present case, the Commission stated, in recital 883 of the contested decision, that the second applicant was ‘involved’ in the element of the single and continuous infringement relating to the FSC, and that ‘evidence on the file demonstrates it was aware of discussions among carriers on SSC and [the payment of] commission on surcharges’. That evidence is described in recitals 487, 634 and 681 of that decision (see footnotes 1321 and 1322).
187    It follows that the Commission imputed to the applicants the single and continuous infringement, in so far as it concerned the elements of that infringement relating to the SSC and the refusal to pay commission, on the ground that the second applicant was aware, or could be presumed to have been aware, of those elements.
188    As regards the Statement of Objections, it states, in paragraph 3 thereof:
‘[the] addressees of the present Statement of Objections participated in a single and continuous infringement … by which they coordinated their pricing behaviour in the provision of air freight services on a global basis with respect to various surcharges … and the payment of commission payable on surcharges, in particular … the [FSC], the [SSC] … and the [refusal to pay commission]’.
189    This assertion is essentially repeated in paragraph 1409 of the Statement of Objections.
190    In paragraphs 1103 to 1378 of the Statement of Objections, the Commission listed the evidence specifically relied on against each addressee of that statement, by referring to the paragraphs of that statement of objections describing that evidence and a summary of that evidence in connection with the various elements of the single and continuous infringement which were found at that stage.
191    As regards the applicants, the Commission listed, in paragraph 1247 of the Statement of Objections, the contacts relied on against them. Those contacts included the contacts described in paragraphs 535, 700 and 1073 of that statement, which correspond to the contacts described in recitals 487, 634 and 681 of the contested decision on which the Commission relied in order to establish that the second applicant was aware of the elements of the single and continuous infringement relating to the SSC and to the refusal to pay commission.
192    In paragraph 1248 of the Statement of Objections, the Commission summarised, in general terms, the content of the contacts listed in paragraph 1247 of that statement:
‘Evidence regarding [the second applicant] ranges from 25 February 2003 to 14 February 2006. [That applicant] entered into numerous contacts with competitors aimed [at] exchanging pricing information in the [freight] sector. These contacts were both bilateral and multilateral and were in the form of e-mails (both sent and received), telephone calls and meetings.’
193    In paragraph 1249 of the Statement of Objections, the Commission stated that ‘[the second applicant] was involved in at least the following aspects: FSC and rates’. In paragraphs 1250 to 1255 of that statement, the Commission gave a detailed summary of the evidence seeking to establish the second applicant’s involvement in those two alleged elements of the single and continuous infringement.
194    In paragraphs 1415 to 1418 of the Statement of Objections, the Commission recalled the principles for establishing the individual liability of an undertaking taking part in a single and continuous infringement. In that regard, it stated that it was entitled, as is apparent from the case-law of the Courts of the European Union, to impute to an undertaking all the forms of anticompetitive conduct comprising such an infringement even if it had directly participated in only some of that conduct, in so far as it was aware, or ought to have been aware, of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives.
195    It is apparent, first, from the description of the Statement of Objections in paragraphs 188 to 194 above, and, in particular, from paragraphs 3 and 1409 of that statement, that the Commission found that all the addressees of that statement, including the second applicant, had ‘participated’ in the single and continuous infringement, all elements taken together.
196    Contrary to the applicants’ submission, it cannot be inferred from the wording of paragraph 1249 of the Statement of Objections that the Commission intended to reverse that position. Interpreted in the light of the indications in that statement set out in paragraph 195 above, that paragraph 1249 is to be understood as referring to the latter’s direct participation in certain elements of the single and continuous infringement, without prejudice to the Commission’s ability to establish the second applicant’s liability for the other elements of that infringement in the light of the awareness, presumed or proven, that the second applicant had of them.
197    That reading is corroborated by the evidence relied on against the applicants in paragraph 1247 of the Statement of Objections, the scope of which goes beyond the conduct described in respect of the elements of the single and continuous infringement relating to the FSC and the tariffs.
198    In addition, it is appropriate to note the clarification provided in paragraph 1249 of the Statement of Objections, according to which the second applicant was involved in ‘at least’ some of the elements of the single and continuous infringement. Since the Commission can rely, as against the addressees of that statement, only on the objections in respect of which they have had the opportunity to make known their views, the statement that it intended to hold them liable for ‘at least’ some elements is superfluous. That follows from the fact that, in any event, the Commission could not find in the final decision that those addressees were liable for the other elements in respect of which it had not stated whether or not it intended to hold them liable. Conversely, it was permissible for the Commission to clarify, after having stated that it intended to hold the addressees liable for the single and continuous infringement in all its elements, that their direct participation was established ‘at least’ for some elements, leaving open, for the other elements, the question whether their liability should be established on the basis of their direct participation in them or merely on the basis of their awareness of them.
199    Moreover, it is apparent from paragraph 1247 of the Statement of Objections that the Commission identified, in that statement, among the evidence in the file, a number of contacts which it intended to rely on specifically against the applicants. Those contacts included those used by the Commission to establish, in the contested decision, the second applicant’s awareness of the elements of the single and continuous infringement relating to the SSC and the refusal to pay commission.
200    While it is true, as the applicants observe, that the paragraphs of the Statement of Objections in which the contacts at issue are described do not specifically state the use which the Commission intended to make of them, it should be noted, first, that paragraph 700 of that statement appears under the heading ‘Competitor contacts concerning the SSC between 2002-2006 – Head Office involvement’ and, second, that paragraph 1073 of that statement appears under the heading ‘Discussions concerning the commissioning of surcharges’. Thus, it was clear from the Statement of Objections that the Commission considered that that evidence, which the applicants knew would be relied on against them, contributed to establishing their liability for the elements of the single and continuous infringement relating to the SSC and to the refusal to pay commission.
201    As regards the evidence set out in paragraph 535 of the Statement of Objections, it is not, however, expressly apparent from the section in which it appears, entitled ‘Competitor contacts concerning the increases of the FSC in summer 2005’, that they were capable of being used to establish, in the contested decision, the applicants’ liability for the element of the single and continuous infringement relating to the refusal to pay commission.
202    However, it should be noted that the Statement of Objections stated that that factor was relied on against them, without limiting its scope solely to the element of the single and continuous infringement relating to the FSC (see paragraph 191 above) and, moreover, indicated that the applicants’ liability was sought, including for the element of that infringement relating to the refusal to pay commission (see paragraph 195 above). Moreover, it is apparent from the content of the document described in paragraph 535 of that statement that the applicants could reasonably infer from this that the Commission would also draw conclusions as to their liability for that element. That document, an internal email from the second applicant, states, inter alia, that ‘Lufthansa had resisted pressure from freight forwarders to pay any commission on the [FSC]’.
203    In the light of the foregoing, it must be held that the Commission, in the Statement of Objections, enabled the applicants to put forward their arguments effectively concerning the second applicant’s awareness of the element of the single and continuous infringement relating to the SSC and the refusal to pay commission. The present complaint must therefore be rejected.
(3)    The second complaint, alleging an infringement of the right to be heard as regards the arguments supporting the finding of a worldwide cartel
204    The applicants complain that the Commission infringed their right to be heard by relying on two arguments to support its finding of a worldwide cartel that did not appear in the Statement of Objections. In the first place, in recital 890 of the contested decision, the Commission states that there were no insurmountable barriers to the provision by the incriminated carriers of freight services on all routes throughout the world, and that ‘each carrier could have overcome any legal or technical barriers’ to operating on any route by entering into a cooperation agreement. However, in the Statement of Objections, the Commission at no point stated that such agreements were legally or technically possible on all routes and thus provided an opportunity to operate on all routes worldwide. In the second place, in the footnote to recital 889 of the contested decision, the Commission cites evidence to support its finding that the surcharges were intended to be applied on all routes worldwide. However, while that evidence was mentioned in the Statement of Objections, the conclusion which the Commission drew from it in that decision was not explained.
205    The applicants add that, had they been heard on the two pieces of evidence in question, they would have been able put forward arguments that could have altered the content of the contested decision.
206    The Commission disputes the applicants’ line of argument.
207    In the present case, as regards the first allegedly new argument set out in recital 890 of the contested decision, the Commission states that the agreements with other carriers were such as to enable the latter to ‘overcome any legal or technical barriers to the provision of airfreight services on routes on which [they] did not operate or which [they] could not legally have operated …’.
208    First, it must be noted that, as is apparent from recitals 112, 886 and 887 of the contested decision, the statement at issue is formulated by the Commission in response to the arguments of certain addressees of the Statement of Objections seeking to call into question the relevance of the contacts in third countries and contacts concerning routes which they had never operated or could not have lawfully operated.
209    Accordingly, the statement in question forms part of the possibility afforded to the Commission, in the light of the administrative procedure, of revising or adding arguments of fact or of law in support of its objections (see, to that effect, judgment of 29 March 2012, Telefónica and Telefónica de España v Commission, T‑336/07, EU:T:2012:172, paragraph 82).
210    Second, the allegedly new argument of the Commission in recital 890 of the contested decision is in fact based on matters which already appeared in the Statement of Objections.
211    Thus, in paragraph 7 of the Statement of Objections, the Commission stated as follows:
‘[no] airline is able to reach all major cargo destinations in the world with its own network with sufficient frequencies; so agreements among carriers to increase their network coverage or improve their schedule are common. Such agreements can take various forms, such as a capacity purchase or some degree of costs and revenue sharing. Within the industry, they are often referred to as “joint ventures” even when they are in reality only capacity purchase agreements’.
212    In paragraph 102 of the Statement of Objections, the Commission added the following:
‘[most] airfreight carrier providers operate on a worldwide basis. Air transport is generally carried out over long distance and goods are often transported from continent to continent. The market for airfreight is worldwide. Most airfreight service providers operate a route network on which they offer regular services in both directions. Typically, they offer services to or from a number of airports in their home region and a wide range of airports in other parts of the world. Through arrangements with other carriers they may also offer airfreight services to or from other airports which their own aircraft do not serve, or freight for which they do not have available capacity’.
213    As regards the second allegedly new argument set out in recital 889 of the contested decision and in footnote 1323, the Commission relies on a number of contacts to allege that ‘announcements of the increase or decrease of the FSC or SSC by various carriers referred to a worldwide application of the surcharge that was not limited to a specific route’.
214    In that regard, it is common ground, first of all, that all the contacts on which the Commission relied were mentioned in the Statement of Objections.
215    Next, the Statement of Objections refers to a worldwide cartel as regards the FSC and the SSC. Thus, paragraph 3 of that statement refers to the coordination of the behaviour of the incriminated carriers on a global basis with respect to various surcharges and the refusal to pay commission (see paragraph 188 above).
216    Similarly, paragraph 125 of the Statement of Objections reads as follows: ‘[the] coordinated application of the [FSC] had the objective of ensuring that air freight carriers throughout the world imposed a flat rate surcharge per kilo for all relevant shipments. … This coordinated approach was extended to the [SSC]. Furthermore, the [carriers] coordinated their refusal to pay a commission on the surcharges …’.
217    It follows that both the documents and the finding of fact on which the Commission’s second allegedly new argument is based were contained in the Statement of Objections.
218    Furthermore, the present argument, like the first allegedly new argument, was formulated in response to the arguments of certain addressees of the Statement of Objections which are summarised in recital 887 of the contested decision. Even if it were to be regarded as new, it must be held that it formed part of the possibility afforded to the Commission, in the light of the administrative procedure, of revising or adding arguments of fact or of law in support of its objections (see paragraph 209 above).
219    In the light of the foregoing, it must be concluded that the Commission, in formulating the two arguments at issue, did not infringe the applicants’ right to be heard.
220    Consequently, this complaint must be rejected.
(4)    The third complaint, alleging an infringement of the right to be heard as to the importance of certain items of evidence relied on against the applicants in the contested decision
221    The applicants complain that the Commission relied on two pieces of evidence the importance of which had not been explained in the Statement of Objections and which should therefore be disregarded. The first of those pieces of evidence is an internal email from the second applicant dated 22 August 2005, described in recital 893 of the contested decision. The second is an internal email from the second applicant dated 11 February 2006 referred to in recital 634 of that decision.
(i)    The second applicant’s internal email of 22 August 2005
222    The applicants submit that the second applicant’s internal email of 22 August 2005 is the only evidence relied on in support of the claim that the applicant was informed or aware that Lufthansa communicated directly and regularly with other carriers concerning the FSC. They also maintain that, in the Statement of Objections, the Commission did not inform the applicants of its interpretation of that evidence or of the fact that it would be relied on in support of that claim. They assert that that email was not mentioned at all in the Statement of Objections, suggesting that the Commission did not regard it as relevant evidence against them. The applicants claim that it is irrelevant that they referred to that email in their reply to the Statement of Objections, since they did not know how the Commission would use it in the contested decision.
223    The Commission disputes the applicants’ line of argument.
224    In that regard, it is common ground that the second applicant’s internal email of 22 August 2005 is not mentioned in the Statement of Objections, but appears in the file to which the applicants had access during the administrative procedure.
225    In addition, it is apparent from recital 893 of the contested decision that it was the applicants themselves, in their reply to the Statement of Objections, who referred to the second applicant’s internal email of 22 August 2005, in support of their argument that the second applicant had never been informed or aware that Lufthansa was communicating directly on a regular basis with several other carriers concerning the FSC.
226    Therefore, in accordance with the case-law cited in paragraphs 181 and 209 above, the Commission cannot be criticised for relying, in the contested decision, on a piece of evidence relied on in the applicants’ reply to the Statement of Objections in order to respond to their arguments which that piece of evidence was supposed to support.
(ii) The second applicant’s internal email of 11 February 2006
227    The applicants claim that the second applicant’s internal email of 11 February 2006, described in recital 634 of the contested decision, is the only evidence relied on in support of the claim that the second applicant was aware of discussions between other carriers about the SSC. The applicants also presume that this email is the sole piece of evidence on which the Commission based its conclusion that the second applicant was aware of an overall anticompetitive plan that encompassed the SSC. The same is true of the emails described in recitals 487 and 681 of the contested decision on which the Commission relies to support the claim that the second applicant was aware of the contacts relating to the refusal to pay commission. On a reasonable reading of the Statement of Objections it could be understood that all those emails would be used only as further evidence of contacts among other carriers.
228    The Commission disputes the applicants’ line of argument.
229    In that regard, it should be noted that the Court has already held, in paragraphs 195 to 203 above, that the applicants had been put in a position effectively to put forward their arguments on the second applicant’s awareness of the elements of the single and continuous infringement relating to the SSC and to the refusal to pay commission, including as regards the emails referred to in the present complaint, which were relied on against them by the Commission.
230    The applicants’ claim that they were not properly heard as regards the second applicant’s internal email of 11 February 2006 is therefore unfounded.
231    It follows that the present complaint must be rejected, as, therefore, must the first part of the sixth plea in its entirety.
(b)    The second part of the plea, alleging discrepancies between the grounds of the contested decision and its operative part
232    The applicants submit, in essence, that the contested decision is vitiated by a defect in the statement of reasons identical to that which led to the annulment of the Decision of 9 November 2010, in so far as British Airways and Qantas are not held liable for the entirety of the single and continuous infringement. For the same reason, the applicants allege that the Commission has breached the essential procedural requirement of not issuing contradictory decisions. Thus, first, the grounds for the contested decision state that British Airways participated in the entirety of that infringement, without any geographical or temporal restriction. By contrast, in the operative part of that decision, British Airways is not held liable for all elements, routes or periods of that infringement. British Airways remains liable for the separate infringement found in Article 1 of the Decision of 9 November 2010. Second, the contested decision is based on the same evidence and the same objections as the Decision of 9 November 2010. That applies equally to Qantas, which does not, however, appear among the incriminated carriers and thus remains liable for the separate infringements set out in the operative part of the Decision of 9 November 2010. According to the applicants, the Commission should have withdrawn the Decision of 9 November 2010 against Qantas and should have held it liable for the single and continuous infringement in a new decision.
233    The applicants add that the Commission could easily have corrected this defect in the statement of reasons, as it did with respect to Lufthansa. The error could have serious and unacceptable consequences in the context of actions for damages. The applicants submit, first, in so far as concerns damages in connection with intra-EU routes during the period of the infringement found against the applicants and in connection with flights on outbound routes (with the exclusion of flights to Hong Kong, Japan, India, Thailand, Singapore, South Korea and Brazil) for the period after 1 May 2004 or the period after 19 May 2005, they can seek a contribution from all of the other incriminated carriers with the exception of British Airways and Qantas. Second, the applicants maintain that, in so far as concerns damages in connection with flights on inbound routes from Hong Kong, Japan, India, Thailand, Singapore, South Korea and Brazil, they can seek a contribution from all of the other incriminated carriers with the exception of British Airways.
234    The Commission disputes the applicants’ line of argument.
235    It should be recalled that, in accordance with Article 296 TFEU and Article 41(2)(c) of the Charter, decisions adopted by the Commission must be reasoned.
236    The statement of the reasons for a measure must be logical and contain no internal inconsistency that would prevent a proper understanding of the reasons underlying the measure (see, to that effect, judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 151).
237    According to the case-law, a contradiction in the statement of the reasons on which a decision is based is, however, capable of affecting its validity only if the addressee of the measure is not in a position to ascertain, wholly or in part, the real reasons for the decision and, as a result, the operative part of the decision is, wholly or in part, devoid of any legal justification (judgments of 24 January 1995, Tremblay and Others v Commission, T‑5/93, EU:T:1995:12, paragraph 42, and of 30 March 2000, Kish Glass v Commission, T‑65/96, EU:T:2000:93, paragraph 85).
238    As is apparent from paragraphs 127 and 131 above, a decision such as the contested decision must be regarded as an individual decision finding, with respect to the applicants, the single and continuous infringement and imposing on them a fine.
239    It follows that the content of the contested decision, in so far as it relates to the liability of other carriers, cannot be the legal basis for the operative part of that decision. Accordingly, the discrepancies relied on by the applicants are not such as to deprive them of knowledge of the actual grounds for that decision.
240    In any event, it is apparent from the operative part of the contested decision, read in the light of recitals 9, 11, 1091 and 1092 of that decision, that the findings of infringement relied on in the operative part against British Airways are limited to the aspects of the Decision of 9 November 2010 which were annulled by the Court in its judgment of 16 December 2015, British Airways v Commission (T‑48/11, not published, EU:T:2015:988). The other aspects of that decision, in so far as they had not been challenged by British Airways, have become final.
241    As regards Qantas, the Commission stated, in recitals 8 and 13 of the contested decision, that it had not challenged the Decision of 9 November 2010, that the latter decision had become final in so far as it concerned Qantas and, accordingly, that the contested decision was not addressed to it.
242    Thus, the Commission duly explained, in the contested decision, why, first, it restricted the scope of the findings of infringement made with regard to British Airways and, second, it refrained from addressing that decision to Qantas.
243    Admittedly, the approach adopted by the Commission leads to the coexistence of infringement findings which differ in particular because their co-perpetrators are not strictly the same. Thus, the elements of the single and continuous infringement relating to intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes are imputed, in the contested decision, to several carriers to which such conduct had not been imputed in the Decision of 9 November 2010.
244    However, this does not result in a contradiction that hinders the proper understanding of the contested decision. That situation is, in fact, merely the result of the system of remedies, under which the court reviewing the legality of an act cannot, on pain of ruling ultra petita, find an annulment exceeding that sought by the applicant, and of the fact that British Airways sought only partial annulment of the Decision of 9 November 2010, whereas Qantas did not challenge it before the Courts of the European Union.
245    It follows that the statement of reasons for the contested decision is free in that regard of any internal inconsistency that would prevent a proper understanding of the reasons underlying that decision.
246    The present part of the plea must therefore be rejected.
(c)    The third part of the plea, alleging a breach of the obligation to state reasons and of the right to be heard as regards the abandonment of certain objections set out in the Statement of Objections
247    The applicants complain that the Commission failed to provide adequate reasons for not allowing them the opportunity to comment on the abandonment of the objections against the non-incriminated carriers and on the removal from the scope of the single and continuous infringement of conduct identified in the Statement of Objections.
248    In the first place, regarding the abandonment of objections against the non-incriminated carriers, the applicants argue that the Commission continues to rely on anticompetitive contacts in which those carriers participated. They maintain that the contested decision contains numerous pieces of evidence that show that these carriers participated in exchanges of information falling within the scope of the single and continuous infringement. The Commission nevertheless failed to give its reasons for not pursuing the non-incriminated carriers. The applicants submit that that decision must have had a basis in fact and law, which they should know in order to conduct their defence.
249    The applicants add that this question is important in the context of actions for damages brought before national courts. According to the applicants, the abandonment of objections against the non-incriminated carriers could adversely affect their ability to bring contribution claims against the non-incriminated carriers.
250    In the second place, the applicants claim that the exclusion from the scope of the single and continuous infringement of several elements of that infringement referred to in the Statement of Objections significantly altered the scope of the overall plan in which the incriminated carriers were accused of having participated in that statement. According to the applicants, the Commission relies in the contested decision on the existence of the same overall plan as was found in the Statement of Objections, albeit without giving adequate reasons and without allowing them an opportunity to state their position in this regard.
251    The Commission disputes the applicants’ line of argument.
252    In the first place, it should be borne in mind that the Commission is under no obligation to set out, in a decision finding an infringement of Article 101 TFEU, the reasons why certain undertakings were not prosecuted or penalised. The obligation to state the reasons on which a measure is based cannot encompass an obligation for the institution from which it emanates to give reasons for the fact that it did not adopt other measures of a similar kind addressed to third parties (judgment of 8 July 2004, JFE Engineering v Commission, T‑67/00, T‑68/00, T‑71/00 and T‑78/00, EU:T:2004:221, paragraph 414).
253    In the present case, the applicants rely specifically on the Commission’s failure to explain why undertakings which were in a similar situation to their own were not held liable for the single and continuous infringement.
254    Similarly, as regards the infringement of the right to be heard which the applicants allege against the Commission, it is sufficient to point out that where, as in the present case, the Commission abandons all the objections raised against certain companies initially involved in the procedure concerned, it cannot be required to allow the companies to which its decision is ultimately addressed to make known their views on that abandonment, since the communication to the parties concerned of further objections and, consequently, the opportunity for them to express their views on those objections are required only where the Commission is led to take new facts into account against the undertakings concerned or to alter materially the evidence for the contested infringements (judgment of 9 October 2014, ICF v Commission, C‑467/13 P, not published, EU: C:2014:2274, paragraph 36).
255    In the second place, as regards the alleged infringement of the obligation to state reasons and of the right to be heard concerning the exclusion from the scope of the single and continuous infringement of several elements of that infringement which are referred to in the Statement of Objections, first of all, it must be held that that exclusion was consistent with the interests of the applicants, by leading to the abandonment of some of the objections raised against them. Therefore, respect for the rights of the defence did not require that they be given the opportunity to comment in that regard (see, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 193).
256    Next, the complaints put forward by the applicants are based on the premiss that the exclusion from the scope of the single and continuous infringement of several elements of that infringement referred to in the Statement of Objections would have had the effect of substantially altering the scope of the overall plan of that infringement in which they were alleged to have participated.
257    By way of amendment of the scope of the overall plan, the applicants merely put forward the fact that only three of elements of the single and continuous infringement which had been identified in the Statement of Objections were no longer included in that plan. Accordingly, they have failed to adduce evidence that the Commission raised new objections against them or relied on evidence or facts on which they had not had an opportunity to explain themselves.
258    Lastly, as regards compliance with the obligation to state reasons, suffice it to note that the Commission is not obliged to explain any differences between its final assessments and its provisional assessments set out in the statement of objections (judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 96). To that extent, the Commission was entitled to abandon certain objections against the applicants, as in the present case, without explaining itself.
259    In the light of the foregoing, the present part of the plea must be rejected and, therefore, the sixth plea in law must be dismissed in its entirety.
4.      The fourth plea in law, alleging errors of fact and law and a failure to state reasons in connection with the finding of a worldwide cartel
260    The present plea, by which the applicants claim that the Commission made errors of fact and of law and infringed the obligation to state reasons in finding that the incriminated carriers participated in a ‘worldwide cartel’, falls into four parts. They allege, in essence, first, a lack of evidence of the worldwide scope of the cartel, second, a manifest error in the assessment of the scope of the single and continuous infringement, third, a lack of jurisdiction and breach of the duty to state reasons in connection with the geographical scope of the infringement and, fourth, discrepancies between the grounds and the operative part of the contested decision with regard to the nature and scope of the infringement.
(a)    The first part of the plea, alleging a lack of evidence of the worldwide scope of the cartel at issue
261    The applicants complain, in essence, that the evidence on which the Commission relied to support its finding of a ‘worldwide cartel’ is ‘extremely limited’, especially if one considers the copiousness of the file. The Commission relies on eight alleged instances of reference being made to the FSC and two alleged instances of reference being made to the SSC. None of those pieces of evidence relates to the refusal to pay commission, which the Commission does not prove to be applied worldwide. Thus, only one of those pieces of evidence concerns the second applicant and is therefore capable of demonstrating that it participated in a worldwide cartel or that it was aware of it. This is a press release relating to the FSC which Lufthansa’s sales manager in Germany merely sent to other carriers’ local employees, including employees of the second applicant’s local office in Frankfurt (Germany). The press release does not refer to the worldwide application of the FSC, nor does it show that the second applicant was aware of the worldwide scope of the cartel. On the contrary, it is clear from the wording of the press release that it only related to the FSC applied on flights departing from Frankfurt.
262    Moreover, the Commission is not entitled to conclude that the cartel was worldwide from the fact that most carriers operate on a worldwide basis. The second applicant does not in fact operate on a worldwide basis. Nor is the Commission entitled to rely, according to the applicants, on the alleged possibility of concluding cooperation agreements or on the lawfulness of such agreements in order to conclude that all routes on which carriers never operated are relevant to establishing the existence of a worldwide cartel. Traffic rights are heavily regulated and they are not easily secured or circumvented by means of agreements between carriers.
263    The Commission disputes the applicants’ line of argument.
264    In support of the finding that the cartel at issue was worldwide (see paragraphs 151 and 152 above), the Commission stated that the cartel at issue ‘operated on a worldwide basis’ (recital 832 of the contested decision). The Commission explained that the cartel at issue was based on a complex network of mainly bilateral contacts in several places in the world and at various levels within the undertakings concerned (recitals 109 and 1300 of that decision). According to the Commission, the ‘arrangements [of the cartel at issue] were in many cases organised centrally’ and implemented locally by local personnel (recital 1046 of that decision). According to the Commission, it was a matter of allowing local personnel to adapt to local conditions measures of general application, ‘on all routes, on a worldwide basis’, namely surcharges and the refusal to pay commission (recitals 876, 889 and 890 and footnote 1323 of that decision).
265    In the context of this part of the plea, the applicants do not dispute the assessments relating to the organisation of the cartel at issue, but merely criticise the assessment relating to the general applicability, ‘on all routes, on a worldwide basis’, of the various elements of the single and continuous infringement.
266    Contrary to what is submitted by the applicants, that assessment is based on evidence from the Commission which is by no means ‘extremely limited’, especially since it is normal for the activities which anticompetitive agreements entail to take place clandestinely, for meetings to be held in secret and for the associated documentation to be reduced to a minimum (see judgment of 16 February 2017, H&R ChemPharm v Commission, C‑95/15 P, not published, EU:C:2017:125, paragraph 39 and the case-law cited).
267    Thus, as regards the surcharges, the applicants themselves observe that the Commission gathered a number of pieces of evidence and fail, in the context of the present part of the plea, to explain how that evidence is insufficiently probative.
268    Those pieces of evidence, several of which are cited by way of example in footnote 1323 of the contested decision, adequately support the Commission’s conclusion that the surcharges are of general application ‘on all routes, on a worldwide basis’. First, as regards the FSC, it should be noted in particular that recital 140 of the contested decision refers to an internal Swiss email in which it is stated that AF ‘will levy worldwide [FSC] of EUR 0.10/USD 0.10 kg’, that KLM ‘will [do exactly] the same’ and that Lufthansa ‘is going [in] the same direction but [has] not confirmed at this minute’. Also, in recital 162 of that decision, reference is made to an exchange of emails between Lufthansa and Japan Airlines dated 27 September 2000 in which it is stated that Lufthansa Cargo intends to apply a certain amount of FSC ‘worldwide’, whereas, in recital 210 of that decision, reference is made to Martinair’s leniency application, according to which Martinair had contacts with several carriers on the implementation of a worldwide FSC.
269    Similarly, footnote 1323 of the contested decision refers to announcements of increases or decreases of the FSC or the SSC which referred to a worldwide application of those surcharges, which was ‘not limited to a specific route’.
270    Second, as regards the SSC, it should be noted that, in recital 608 of the contested decision, the Commission referred to an email in which British Airways explains to Lufthansa that it wanted to introduce an ‘exceptional handling fee’ worldwide. Also, in recital 666 of that decision, the Commission referred to the minutes of a meeting of 30 March 2004 of the Executive Committee of the Cargo Sub-Committee (‘CSC’) of the Board of Airline Representatives (‘BAR’) in Hong Kong. It is apparent from those minutes that the amount of the SSC from Hong Kong is based on the ‘worldwide benchmark’.
271    As regards the refusal to pay commission, it is true that the Commission did not, in footnote 1323 of the contested decision, give any specific examples of evidence to substantiate its general applicability ‘on all routes, on a worldwide basis’.
272    However, first, it should be noted that, in so far as the surcharges were generally applicable ‘on all routes, on a worldwide basis’, it was likely that the refusal to pay commission was also generally applicable. In recital 879 of the contested decision, the Commission found that the refusal to pay commission and the two other elements of the single and continuous infringement were complementary in that it ‘ensured that surcharges did not become subject to competition through the negotiation of commission (in fact discounts on the surcharges) with customers’.
273    Second, it is important to note that the Commission referred, elsewhere than in footnote 1323 of the contested decision, to evidence to substantiate the applicability of the refusal to pay commission ‘on all routes, on a worldwide basis’. Thus, in recital 679 of the contested decision, the Commission referred to an internal email concerning the refusal to pay commission in which Swiss’ Chief Cargo Officer asked his area managers to ‘participate wherever relevant in local BAR meetings’. Similarly, in recital 683 of the contested decision, the Commission mentions an internal memo addressed to CPA’s cargo sales managers, in which it is stated that ‘as long as local conditions allow [CPA] should adopt a common approach and response to the issue [of the requests for commission on surcharges]’ and ‘[CPA] should therefore consider following any rejection of such request or claim for commission and other related actions that may be coordinated by your local [carrier] associations’.
274    The Commission has, moreover, adduced evidence to show that such coordination occurred in many countries throughout the world, including Hong Kong (recital 503 of the contested decision), Switzerland (recital 692 of that decision), Italy (recitals 694 to 698 of that decision), France (recital 699 of that decision), Spain (recital 700 of that decision), India (recital 701 of that decision) and the United States (recital 702 of that decision).
275    In the light of the foregoing, it must be held that the fact that the unlawful conduct described in the contested decision specifically referred to only 19 markets outside the European Union was not such as to prevent the Commission from concluding that there was a worldwide cartel.
276    As regards the fact that the second applicant did not operate worldwide and that the contacts at issue on which the Commission relied in order to conclude that there was a worldwide cartel did not, for the most part, involve that applicant, they are irrelevant for the purposes of examining the evidence of the existence of a ‘worldwide cartel’ raised by this part of the plea.
277    It follows that the applicants have failed to demonstrate that the Commission had erred in concluding that the cartel at issue was of worldwide scope.
278     This part of the plea must therefore be rejected.
(b)    The second part of the plea, alleging, in essence, an error in the assessment of the scope of the single and continuous infringement and breach of the obligation to state reasons
279    The applicants submit, in essence, that the Commission made an error of assessment in finding that the single and continuous infringement affected all routes worldwide.
280    In the first place, the applicants claim that, in so far as the surcharges are concerned, the infringement could not have affected a number of routes because regulatory measures left the incriminated carriers with no scope for autonomous action. That is the case, in particular, for routes between the EEA and Hong Kong, Japan, India, Thailand, Singapore, South Korea and Brazil, in which countries the applicable regulations made the introduction of surcharges subject to the approval of the competent authorities. The competent authorities in Hong Kong, Japan and Thailand exercised regulatory powers to ensure a single FSC system or level in their respective countries.
281    In their reply, the applicants add that it was for the Commission to demonstrate that the regulations in Hong Kong, Japan, India, Thailand, Singapore, South Korea and Brazil did not prevent it finding an infringement of Article 101 TFEU. At the hearing, the applicants also claimed that the contested decision was insufficiently reasoned as regards Singapore, South Korea and Brazil.
282    In the second place, the applicants claim that the Commission could not hold them liable for an infringement on routes between the European Union and the United Arab Emirates.
283    The Commission disputes the applicants’ line of argument.
284    As a preliminary point, it should be noted that, contrary to the applicants’ submission, the possible existence of a State constraint in Hong Kong, Japan, India, Dubai, Thailand, Singapore, South Korea and Brazil is not, as such, inconsistent with the finding of a worldwide cartel.
285    As is apparent from the examination of the first part of the present plea, the Commission was right to find that the various elements of the single and continuous infringement were measures of general application which were intended to be applied on all routes, on a worldwide basis. The exclusion of local conduct from the scope of the cartel at issue is not inconsistent with its worldwide scope.
286    Moreover, the Commission specified, in footnote 1323 of the contested decision, that the implementation of the surcharges occurred in the context of the multi-level structure and that the level of the surcharges could vary and was discussed separately ‘due to the local market conditions or regulations’.
287    In addition, and in so far as, by their line of argument, the applicants claim that any State constraint precluded the Commission from including in the single and continuous infringement routes between the EEA and Hong Kong, Japan, India, Dubai, Thailand, Singapore, South Korea and Brazil, it must be borne in mind that Article 101(1) TFEU applies only to anticompetitive conduct engaged in by undertakings on their own initiative. If anticompetitive conduct is required of undertakings by national legislation or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, Article 101 TFEU does not apply. In such a situation, the restriction of competition is not attributable, as that provision implicitly requires, to the autonomous conduct of the undertakings (see judgment of 11 November 1997, Commission and France v Ladbroke Racing, C‑359/95 P and C‑379/95 P, EU:C:1997:531, paragraph 33 and the case-law cited).
288    Conversely, if national legislation does not preclude undertakings from engaging in autonomous conduct which prevents, restricts or distorts competition, Article 101 TFEU may apply. In the absence of any binding regulatory provision imposing anticompetitive conduct, the Commission is entitled to conclude that the operators in question enjoyed no autonomy only if it appears on the basis of objective, relevant and consistent evidence that that conduct was unilaterally imposed upon them by the national authorities through the exercise of irresistible pressures, such as, for example, the threat to adopt State measures likely to cause them to sustain substantial losses (see judgment of 11 December 2003, Minoan Lines v Commission, T‑66/99, EU:T:2003:337, paragraphs 177 and 179 and the case-law cited).
289    According to the case-law, this is not the case where a law or conduct is limited to encouraging or facilitating autonomous anticompetitive conduct by undertakings (see, to that effect, judgment of 14 December 2006, Raiffeisen Zentralbank Österreich and Others v Commission, T‑259/02 to T‑264/02 and T‑271/02, EU:T:2006:396, paragraph 258).
290    Lastly, it is apparent from the case-law that it is for the undertakings concerned to demonstrate that a law or State conduct was of such a kind as to deprive it of all independent choice in its commercial policy (see, to that effect, judgment of 7 October 1999, Irish Sugar v Commission, T‑228/97, EU:T:1999:246, paragraph 129). It is for the authority alleging an infringement of the competition rules to prove it and it is for the undertaking raising a defence against a finding of an infringement of those rules to demonstrate that the conditions for applying the rule on which such defence is based are satisfied, so that the authority will then have to resort to other evidence (see judgment of 16 February 2017, Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission, C‑90/15 P, not published, EU:C:2017:123, paragraph 19 and the case-law cited).
291    It thus follows from the case-law that the relevant criterion for the purposes of assessing the existence of a State constraint justifying the non-application of Article 101 TFEU is that anticompetitive conduct is not permitted or even encouraged, but made compulsory under the regulatory framework of a third country.
292    It is therefore only in so far as the applicants’ argument tends to maintain that the regulatory regimes at issue in the present case forced the carriers to coordinate on surcharges that it is capable of forming the basis, in the context of the present branch, for a finding of error by the Commission.
293    It is in the light of those considerations that the Court must examine whether the applicants are justified in claiming that the Commission erred in its examination of the regulatory regimes applicable to routes between the EEA, on the one hand, and Hong Kong, Japan, India, Dubai, Thailand, Singapore, South Korea and Brazil, on the other.
(1)    Hong Kong
294    The applicants complain that the Commission erred in its assessment of the existence of a State constraint in Hong Kong.
295    First, the applicants claim that the Commission erred in its assessment of the Hong Kong regulatory regime, in so far as the carriers designated to operate under the international Air Service Agreements (‘ASAs’) relating to EEA‑Hong Kong routes were legally required to submit collective applications relating to tariffs to the Hong Kong Civil Aviation Department (‘CAD’) for approval. The applicants rely in that regard on Hong Kong Basic Law and mention the existence of a letter from the CAD dated 3 September 2009 addressed to the Commission.
296    Second, in the reply, the applicants submit that it is not apparent from the statements of the carriers reproduced in recitals 976 to 980 of the contested decision that individual applications relating to the FSC were possible with the CAD and that, on the contrary, the statements in recital 978 of that decision showed that it was impossible to make such applications. In the light of that prima facie evidence, the Commission should have demonstrated that the State constraint in Hong Kong did not preclude the application of Article 101 TFEU. In addition, the email from Qantas produced by the Commission in its defence and the statements of that carrier reproduced in recitals 205 and 207 of that decision referred to by the Commission in its defence are irrelevant because they predate the infringement period.
297    The Commission disputes the applicants’ arguments.
298    Recitals 976 to 993 of the contested decision concern, first, the ASAs signed by the Hong Kong Special Administrative Region of the People’s Republic of China and, second, the regulatory regime in Hong Kong. According to those recitals, the Commission found that no requirement to discuss tariffs had been imposed on carriers in Hong Kong.
299    In the first place, the Commission acknowledged, in recitals 981 to 986 of the contested decision, that the ASAs signed by the Hong Kong Special Administrative Region of the People’s Republic of China required, for the most part, that the fares charged by the carriers designated by the contracting countries be approved by the competent authorities, in the case of Hong Kong it being the CAD, and that they authorise prior consultation of prices between the designated carriers. Nevertheless, according to that decision, those ASAs did not in any event require such consultations before an application for approval was submitted.
300    In support of that conclusion, the Commission reproduced in recital 983 of the contested decision the wording of a standard clause of several ASAs which provides:
‘The tariffs referred to in paragraph (1) of this Article may be agreed by the designated airlines of the Contracting Parties seeking approval of the tariffs, which may consult other airlines operating over the whole or part of the same route, before proposing such tariffs. However, a designated airline shall not be precluded from proposing, nor the aeronautical authorities of the Contracting Parties from approving, any tariff, if that airline shall have failed to obtain the agreement of the other designated airlines to such tariff or because no other designated airline is operating on the same route.’
301    In recital 985 of the contested decision, the Commission added that the ASA between the Czech Republic and the Hong Kong Special Administrative Region of the People’s Republic of China, for example, indicated that no country would require carriers to discuss tariffs.
302    In the second place, as regards Hong Kong’s administrative practice, the Commission found, in recitals 987 to 989 of the contested decision, that it was not established that the CAD had required consultation of the carriers in order to submit a collective application for approval of tariffs. In particular, none of the carriers provided any evidence establishing that the CAD had expressly required collective applications to be lodged.
303    In recital 992 of the contested decision, the Commission found, first, as regards the FSC, that the CAD had not been prepared to accept individual applications for an FSC mechanism, but that it had been prepared to accept individual applications for a fixed amount FSC, and, second, for the other surcharges, that the carriers had not argued that the CAD required collective applications.
304    The applicants’ arguments concerning the assessment of the Hong Kong regulatory regime do not show that the contested decision is vitiated by errors in that regard.
305    In the first place, as regards the full version of the Hong Kong Basic Law on which the applicants rely in support of their arguments, it should be noted that they do not refer to any provision of that law. Furthermore, it does not follow from Articles 128 to 135 of that law, which are especially devoted to civil aviation, that applications for approval of tariffs must be submitted collectively by the carriers to the CAD. In so far as the applicants rely on that law to establish the direct effect of the provisions of the ASAs in Hong Kong, it should be noted that the applicants do not dispute the finding in recital 984 of the contested decision that the standard tariff clause of the ASAs concluded by Hong Kong, reproduced in paragraph 300 above, does not require carriers to discuss tariffs and provides that price increases may be proposed without prior agreement between carriers.
306    Next, as regards the letter from the CAD of 3 September 2009, which allegedly confirms that collective applications for approval of tariffs are mandatory, it must be noted that the wording of that letter is reproduced by the Commission in its defence, without that wording being challenged by the applicants.
307    That letter is worded as follows:
‘The Commission should be absolutely clear that, in respect of the cargo [FSC] index-based mechanism, we required that the BAR-CSC and the participating carriers agree on the details of the collective applications, including the amount of the surcharge for which approval was sought, the evidence to be provided to CAD supporting the applications and the single mechanism to be used for determining the surcharge. The CAD also mandated and required the participating carriers to levy specifically the surcharge approved. Moreover, we mandated and required BAR-CSC to submit for approval to CAD any change in the list of carriers participating in the collective applications and we made it clear that such carriers should not levy any [FSC] without CAD’s express approval to BAR-CSC’.
308    That letter thus merely sets out the conditions required by the CAD where the BAR CSC and the carriers are considering a collective application for an index-based FSC. By contrast, it does not refer to a general obligation to submit a collective application for an FSC or to the impossibility of making an individual application for a fixed FSC. It therefore does not contradict recital 992 of the contested decision, from which it is apparent that collective applications involving discussions between carriers were only required for an index-based FSC mechanism, and that individual applications remained possible for a fixed amount FSC.
309    In the second place, it should be noted that, in accordance with the case-law cited in paragraph 290 above, the burden of proving a State constraint falls on undertakings, contrary to the applicants’ submission.
310    In the present case, the applicants have not shown that the Commission ignored the carriers’ arguments relating to the Hong Kong regulatory regime or that it was wrong to reject them.
311    In the contested decision, in order to reach the conclusion that the regulatory framework applicable to Hong Kong did not require carriers to coordinate with each other with regard to the FSC, the Commission did not rely decisively on the statements reproduced in recital 978 of that decision, in order to distort their wording, but, in recitals 976 to 993 of that decision, carried out an overall assessment in which those statements constitute only one factor among others. Moreover, in the context of that assessment, the Commission cannot be criticised for not having regarded the arguments of the carriers set out in recitals 976 to 980 of that decision as prima facie evidence of the existence of a State constraint, since, contrary to what the applicants claim, those arguments, taken together, were ambiguous as regards the possibility of submitting an individual application for approval of the FSC to the CAD.
312    Lastly, even assuming that the email from Qantas produced by the Commission in the defence and the statements of that carrier reproduced in recitals 205 and 207 of the contested decision are, as the applicants submit, irrelevant because they predate the infringement period, it must be held that the Commission did not rely on that evidence in the context of the examination set out in recitals 976 to 993 of that decision which the applicants have failed to demonstrate was vitiated by errors.
313    Consequently, the applicants’ arguments challenging the Commission’s assessment of the regulatory regime applicable to Hong Kong must be rejected in their entirety.
(2)    Japan
314    The applicants submit that the Commission erred in its assessment of the existence of a State constraint in Japan, in so far as, for the purposes of the approval of their tariffs by the Japanese Civil Aviation Bureau (‘the JCAB’), carriers were required to coordinate with each other in advance so that the Japanese carriers would first submit an application and then the other carriers would submit an identical application. They rely, in the application, on Article 98 of the Japanese Constitution in so far as it makes the ASAs directly applicable in Japanese law and Articles 105, 110, 111 and 129 of Japanese Law No 231 of 15 July 1952 on civil aviation and, in the reply, on recitals 1002 to 1004 of the contested decision.
315    The Commission disputes the applicants’ arguments.
316    Recitals 995 to 1012 of the contested decision relate, first, to the ASAs concluded by Japan and, second, to the Japanese regulatory regime. According to those recitals, the Commission considered that no requirement to discuss tariffs had been imposed on carriers in Japan.
317    In the first place, as regards the ASAs concluded by Japan, the Commission, in recital 995 of the contested decision, reproduces the wording of a clause contained in the agreement concluded with the Kingdom of the Netherlands which is found in other agreements and provides:
‘Agreement on tariffs shall, wherever possible, be reached by the designated airlines concerned through the rate-fixing machinery of the International Air Transport Association. When this is not possible, tariffs in respect of each of the specified routes shall be agreed between the designated airlines concerned.’
318    After noting, in recital 996 of the contested decision, that, according to one carrier, the ASAs require price agreements rather than authorising them, the Commission stated, in recital 997 of that decision, that the agreement concluded with the United Kingdom of Great Britain and Northern Ireland had been amended in 2000 by a Memorandum of Understanding providing that designated carriers should not consult on tariffs prior to a request for approval. According to recitals 1005 to 1008 of that decision, even though it is apparent from the ASAs that, subject to certain conditions, carriers must agree on tariffs, such discussions are strictly limited to the carriers designated on specified routes and do not in any event concern general discussions between multiple carriers. Lastly, in practice, the parties to the ASAs do not rely on the application of those agreements, so that the obligations are derived rather from the domestic legal and administrative provisions in force in Japan, which is reinforced by the fact that the parties claim that coordination was required for the FSC, but not for the SSC.
319    In the second place, as regards Japanese legislation and administrative practice, the Commission mentioned, in recitals 998 to 1004 of the contested decision, certain provisions of the Japanese law on civil aviation and statements by carriers concerning the JCAB directives. In recitals 1009 to 1011 of that decision, the Commission stated, first, that it was not expressly stated in that law that tariff coordination was mandatory and, second, that the incriminated carriers had adduced no evidence to show that such an obligation had been imposed by the administrative practice of the JCAB.
320    The applicants’ line of argument is not capable of demonstrating that those assessments are vitiated by illegality.
321    In the first place, although it is apparent from paragraph 2 of Article 98 of the Japanese Constitution, to which the applicants refer, that the treaties concluded by that country and international law must be faithfully respected, the fact remains that, even if the binding force of the ASAs’ tariff clauses, owing to the direct effect of those clauses, is thus established, the applicants have failed to prove that those clauses made obligatory the contacts between multiple carriers serving multiple destinations referred to by the Commission in the contested decision.
322    In the second place, Article 105 of Japanese Law No 231 of 15 July 1952 provides that the tariffs charged by carriers established in Japan, including surcharges, are to be approved in advance by the JCAB, which takes account of compliance with the provisions of the applicable ASA or any other international agreement relevant to an air transport service. Article 129-2 of that law imposes that prior approval requirement on foreign carriers. Articles 110 and 111 of that law provide that the provisions of the Japanese law prohibiting private monopolies and the maintenance of fair trading conditions do not apply to agreements between carriers approved by the Minister of Transport.
323    In the light of the provisions thus submitted for the Court’s examination by the applicants, it should be noted that they do not substantiate the latter’s claim that, first, the Japanese carriers sought approval of their tariffs from the JCAB and, second, the other carriers submitted applications for the same tariffs as those of the Japanese carriers. The applicants do not therefore establish that the Commission erred in finding, in recital 1009 of the contested decision, that the ‘Japanese Civil Aviation Law’ did not expressly impose on carriers an obligation to coordinate with each other on tariffs.
324    In the third place, according to recital 1011 of the contested decision, the statements of the carriers set out in recitals 1002 to 1004 of that decision, according to which the JCAB’s practice entailed tariff coordination in relation to the FSC for flights from Japan, were not relied on by the Commission because they were not supported by relevant written evidence. Before the Court, the applicants merely rely on those statements, without producing additional evidence which might have been ignored during the administrative procedure or which might show errors on the part of the Commission. They therefore fail to explain how the examination of the Japanese regulatory framework carried out by the Commission is insufficiently detailed or incorrect.
325    Consequently, the applicants’ arguments challenging the Commission’s assessment of the regulatory regime applicable to Japan must be rejected in their entirety.
(3)    Thailand
326    The applicants complain that the Commission erred in its assessment of the existence of a State constraint in Thailand. First, they submit that, under the Thai Air Navigation Act BE2497, the introduction of the FSC required prior approval by the Board of the Department of Civil Aviation, which encouraged carriers to coordinate their approach in dealing with the authorities. Second, that law, the purpose of which is, inter alia, to implement the Convention on International Civil Aviation, signed in Chicago (United States) on 7 December 1944, renders enforceable the ASAs concluded by the Kingdom of Thailand with other countries, which require discussions on tariffs between carriers.
327    The Commission disputes the applicants’ arguments.
328    In recital 1015 of the contested decision, the Commission analysed the regulatory regime applicable in Thailand. It found that the ASAs concluded between that third country and EU Member States provided, as a general rule, for a clause according to which the tariffs are ‘if possible, [to] be agreed in respect of each of the specified routes between the designated [carriers] concerned’ and that they were to be filed with the competent regulatory bodies.
329    In recital 1019 of the contested decision, the Commission found that ‘[following] the reasoning … in respect of Hong Kong and Japan’, the defence alleging the existence of a State constraint had not been substantiated with regard to Thailand.
330    In the same recital, the Commission states that that analogy was valid on the ground that, first, the tariff provisions set out in the ASAs applicable in Thailand were limited to the designated carriers on specified routes and do not extend to general tariff discussions between multiple operators providing services to multiple country destinations and, second, that it has not been shown that the applicable domestic legal and administrative provisions required tariff coordination.
331    None of the applicants’ arguments demonstrates that those assessments are vitiated by errors.
332    First, as is apparent from paragraph 292 above, the applicants are not justified in relying on the mere incentive effect of the Thai legislation in order to conclude that the coordination between carriers in Thailand should not be included in the single and continuous infringement.
333    Second, even if the Thai Air Navigation Act BE2497 were to render enforceable the ASAs concluded by the Kingdom of Thailand, it is clear from recital 1019 of the contested decision that the clauses of those agreements relating to tariff discussions are strictly limited to designated carriers on specified routes and do not concern general tariff discussions between multiple carriers, as the Commission noted in recital 1008 of the contested decision, in relation to the clauses of the ASAs concluded by Japan, the reasoning in relation to the latter third country being referred to by analogy in the contested decision for the purposes of the examination concerning the Kingdom of Thailand. At most, those clauses provide, as the applicants point out, that the designated carriers are to consult the other carriers which operate all or part of the same route. That cannot justify multilateral exchanges of the scale of those set out in recitals 185 to 199, 244 and 256 to 257 of that decision, which occurred independently of the routes at issue and the carriers designated on those routes.
334    Consequently, the applicants’ arguments challenging the Commission’s assessment of the regulatory regime applicable in Thailand must be rejected in their entirety.
(4)    Other third countries
335    The applicants claim that the Commission did not sufficiently examine the regulatory regimes in India, Singapore, South Korea and Brazil and merely stated that it did not consider that the State-imposed obligation argument had been proven by the incriminated carriers. In particular, as regards Brazil, the Commission did not take account of the fact that the competent regulatory body did not authorise the use of a fuel surcharge index until September 2005. At the hearing, the applicants also claimed that the contested decision was insufficiently reasoned as regards Singapore, South Korea and Brazil.
336    The Commission disputes the applicants’ arguments.
337    Recitals 1013 to 1014 and 1016 to 1019 of the contested decision relate to the regulatory systems applicable in India, Singapore, South Korea and Brazil. In recital 1014 of that decision, the Commission found that the tariff clauses of the ASAs concluded by India provided that the tariffs would, if possible, be agreed upon between the designated carriers concerned for each of the specified routes and that they had to be approved by the competent Indian authorities. It is apparent from recital 1016 of that decision that the ASAs concluded by the Republic of Singapore contain, in general, clauses similar to the standard clause contained in the agreements concluded by the Kingdom of Thailand, according to which tariffs will, if possible, be agreed between the designated carriers concerned for each of the specified routes. In recital 1017 of that decision, the Commission found that the ASAs concluded by the Republic of Korea did not contain a clause encouraging tariff coordination, but only a requirement for prior notification of the tariffs to the regulatory authorities of that third country for approval. In recital 1018 of the contested decision, the Commission found that the Federative Republic of Brazil is a party to ASAs with EEA Member States and mentioned the competent national authority. In recital 1019 of that decision, the Commission found that ‘[following] the reasoning … in respect of Hong Kong and Japan’, the defence alleging the existence of a State constraint had not been substantiated with regard to India, Singapore, South Korea and Brazil and explained that that analogy was valid on the grounds set out in paragraph 300 above.
338    None of the applicants’ arguments demonstrates that those assessments are vitiated by errors.
339    First, as regards the complaint alleging that the statement of reasons for the contested decision is inadequate, it should be recalled that the statement of reasons must be appropriate to the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to carry out its review (see, to that effect, judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 147)
340    The requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of concern, within the meaning of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU and of Article 41(2)(c) of the Charter must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 150, and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraph 45).
341    It follows from paragraph 337 above that the Commission set out to the requisite legal standard the reasons why it rejected the arguments of the carriers relating to the regulatory framework in force in Singapore, South Korea and Brazil, allowing the applicants to understand those reasons and the Court to carry out its review.
342    Second, in so far as the applicants complain that the Commission did not actually examine the Indian, Singapore, South Korean and Brazilian regulatory regimes, their argument must be rejected.
343    As the Commission correctly submits in reply to a question from the Court, in accordance with the case-law cited in paragraph 290 above, it was for the incriminated carriers to prove that the regulations applicable in the third countries at issue imposed an obligation to coordinate on tariffs. The applicants do not produce any evidence to show that the Commission ignored or misinterpreted the evidence that the incriminated carriers produced during the administrative procedure as regards the legislation applicable in India, Singapore and South Korea.
344    As regards Brazil, the applicants merely refer to recital 539 of the contested decision, from which it is apparent that the competent regulatory body in that third country authorised the use of an FSC index only in September 2005.
345    It is apparent from recital 539 of the contested decision, as regards administrative practices in Brazil, that:
‘[Lufthansa] sent an email on 8 September 2005 to AF, [KLM], […] and […] informing them that after the authorisation by DAC to use the FSC index, [Lufthansa] will raise the FSC to USD 0.50 from 1 October 2005 and will from then on follow the worldwide FSC policy of [Lufthansa] in Brazil as well’.
346    While it is true that that information is not reproduced in recital 1018 of the contested decision, the fact remains that, as the Commission observes, that brief reference to a decision of the Brazilian authorities in the email exchanges between employees of the incriminated carriers does not, in itself, constitute evidence that the application of an index-based FSC was prohibited in Brazil before September 2005. Accordingly, the Commission cannot be criticised for having carried out an inadequate assessment of the Brazilian regulatory regime solely on the ground that it did not rely on that information in recitals 1018 and 1019 of the contested decision.
347    It follows from the foregoing that the applicants’ arguments seeking to challenge the Commission’s assessment of the Indian, Singapore, South Korean and Brazilian regulatory regimes must be rejected in their entirety.
(5)    Dubai
348    The applicants claim that it is very likely that the Commission closed its investigation into another carrier without imposing a penalty on that carrier on the ground that the decisions taken by the competent authorities in Dubai (United Arab Emirates) did not allow carriers to act independently in relation to surcharges on EEA‑United Arab Emirates routes. They submit that the contested decision should therefore be annulled in so far as it holds them liable for an infringement on those routes.
349    The Commission disputes the applicants’ arguments.
350    It should be noted that the applicants’ line of argument is based on the discontinuance of proceedings against another carrier, which they suspect was the result of the existence of a State constraint in Dubai. However, the applicants themselves acknowledge, in paragraph 145 of the application, that they cannot ‘be certain why the Commission closed its investigation into [that other carrier]’.
351    In those circumstances, since the applicants have not, moreover, adduced the slightest evidence to establish the existence of a State constraint in Dubai, the present complaint must be rejected.
352    In the light of the foregoing, this part of the plea must be rejected in its entirety.
(c)    The third part of the plea, alleging a lack of jurisdiction and breach of the duty to state reasons in connection with the geographical scope of the single and continuous infringement
353    The applicants complain, in essence, that the contested decision is vitiated by a lack of jurisdiction, a defective statement of reasons and manifest errors of assessment in the Commission’s finding that the incriminated carriers had coordinated their pricing conduct in relation to routes between airports situated outside the EEA. Although, in the operative part of that decision, the Commission did not mention routes between such airports, it found that the incriminated carriers had coordinated their pricing conduct ‘worldwide’. In the light of the grounds of that decision, that expression must be interpreted as referring to ‘all routes, worldwide’, that is to say also to routes between airports situated outside the EEA.
354    Given the risk of actions for damages being brought before national courts, it is essential that the Commission define the geographical and temporal scope of an infringement of the competition rules precisely. According to the applicants, the Commission has failed to do this in the present case, inasmuch as the operative part of the contested decision contains a contradiction with regard to the geographical scope of the single and continuous infringement. A national court hearing an action for damages will not be able to determine with certainty whether the binding effect of the contested decision encompasses routes between airports situated outside the EEA. Given that the courts will be guided by the text of that decision, the clarification offered in the Commission’s defence does not resolve this problem.
355    The applicants add that, if the Court nevertheless decides not to annul the contested decision, it will contain findings pertaining to criminal matters that the applicants would not be able to challenge, which would be a breach of their right to an effective remedy, and that could be invoked against them in third countries. In the circumstances, the Court should alter its case-law and annul those particular findings.
356    The Commission disputes the applicants’ line of argument.
357    In that regard, it should be borne in mind that, as regards the scope and nature of the infringements penalised, it is in principle the operative part of the contested decision, not the grounds, that is important and that it is therefore only where there is a lack of clarity in the terms used in the operative part that it should be interpreted by reference to the grounds of the decision (see paragraph 98 above).
358    In the present case, it must be held that, as stated in paragraph 151 above, the reference in the introductory paragraph of Article 1 of the contested decision to the existence of price coordination for the provision of freight services ‘worldwide’ is merely a finding of fact which the Commission classified in paragraphs 1 to 4 of that article as an infringement of the competition rules applicable to routes on which it considered that it had jurisdiction during the periods at issue, to the exclusion of routes between airports situated outside the EEA.
359    It follows that the applicants cannot validly complain of an internal contradiction in the operative part of the contested decision.
360    In addition, as stated in paragraph 152 above, the grounds of the contested decision support that conclusion.
361    It follows from the foregoing that the applicants are not justified in relying on an internal contradiction in the operative part of the contested decision. In those circumstances, the applicants cannot validly rely on the risk resulting from an insufficiently precise definition of the scope of the single and continuous infringement for the purposes of actions for damages.
362    It is also apparent from the foregoing that the applicants are wrong to complain of a lack of jurisdiction. Their argument in that regard is based on the incorrect premiss that the Commission, in the operative part of the contested decision, found an infringement of the competition rules which encompassed routes between airports situated outside the EEA (see paragraphs 151 and 358 above).
363    As regards the applicants’ argument concerning the right to an effective remedy, it is sufficient to note that the applicants disputed the Commission’s findings as to the existence of a ‘worldwide cartel’ in the context of the first part of the present plea and that the Court has already examined the merits of that plea.
364    The present part of the plea must therefore be rejected.
(d)    The fourth part of the plea, alleging a contradiction between the grounds and the operative part of the contested decision and manifest error of assessment as regards the nature and scope of the single and continuous infringement
365    The applicants submit that the Commission has failed clearly to define the anticompetitive aim of the single and continuous infringement and that the contested decision is therefore vitiated by a defective statement of reasons and a manifest error of assessment. In recitals 872 and 903 of the contested decision, the Commission concludes that there was a restriction of competition the aim of which was to distort competition in the freight sector in the EEA and Switzerland. By contrast, Article 1 of the operative part of the contested decision refers to the coordination of pricing on a global basis. The Commission also refers repeatedly to the existence of a worldwide cartel and, in recital 1210 of that decision, to a worldwide infringement. The reference to the worldwide scope of the anticompetitive aim of the single and continuous infringement may be explained by the fact that, faced with an infringement the aim of which was confined to the EEA, the Commission could not have found the applicants liable in connection with the application of the FSC on EU‑Switzerland routes, which they do not operate.
366    The Commission disputes the applicants’ line of argument.
367    In the present case, it is apparent from paragraphs 360 to 363 above that there is no contradiction between the grounds and the operative part of the contested decision as regards the geographical scope of the single and continuous infringement.
368    This part of the present plea must therefore be rejected, as must the fourth plea in law in its entirety.
5.      The fifth plea in law, alleging errors of fact and law and a breach of the duty to state reasons in connection with the finding of a single and continuous infringement
369    The present plea, by which the applicants allege errors of fact and of law and a breach of the duty to state reasons, which the Commission allegedly committed in finding the existence of a single and continuous infringement, is divided into six parts. They allege, first, a failure to demonstrate a single anticompetitive aim, second, that the conduct in question did not relate to a single service, third, an error in the Commission’s identification of a group of undertakings with a common interest in so far as concerns the three elements of that infringement and an error in the conclusions which the Commission draws, fourth, a failure to demonstrate that the alleged infringement had a single nature, fifth, a failure to demonstrate that discussions were held ‘in parallel’ concerning the various elements of the single and continuous infringement, and sixth, a failure to demonstrate that the refusal to pay commission was anticompetitive and a failure to carry out an assessment under Article 101(3) TFEU.
370    According to the case-law, an infringement of the prohibition of principle laid down in Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’, because their identical object distorts competition within the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 41 and the case-law cited).
371    When assessing whether there has been a single infringement and the existence of an overall plan, the fact that the various actions of the undertakings form part of an ‘overall plan’, because their identical object distorts competition within the internal market, is decisive. For the purposes of that assessment, the at least partial identity of the undertakings concerned (see, to that effect, judgment of 13 September 2013, Total Raffinage Marketing v Commission, T‑566/08, EU:T:2013:423, paragraph 265 and 266 and the case-law cited), and the various material, geographical and temporal overlaps between the acts and conduct at issue may be relevant.
372    That is the case, in particular, for the identical nature of products and services concerned, the identical nature of the detailed rules for implementation, where the natural persons involved on behalf of the undertakings are identical and where the geographical scope of the practices at issue is identical (see, to that effect, judgment of 17 May 2013, Trelleborg Industrie and Trelleborg v Commission, T‑147/09 and T‑148/09, EU:T:2013:259, paragraph 60).
373    According to the case-law, those factors must be assessed as a whole (judgment of 16 September 2013, Masco and Others v Commission, T‑378/10, EU:T:2013:469, paragraph 58).
374    In the present case, in recitals 872 to 883 of the contested decision, the Commission relied on six factors to conclude that the conduct at issue constituted a single infringement. These were, first, the existence of a single anticompetitive objective (recitals 872 to 876), second, the fact that the conduct concerned a ‘[single] product/service’ that is to say ‘the provision of [freight] services and the pricing thereof’ (recital 877), third, the fact that the undertakings involved in the various arrangements at issue were the same (recital 878), fourth the single nature of the infringement (recital 879), fifth, the fact that the discussions in which the incriminated carriers participated took place in parallel (recital 880) and, sixth, the involvement of the majority of the incriminated carriers in the three elements of the single and continuous infringement (recitals 881 to 883).
375    In recital 900 of the contested decision, the Commission added to those factors the fact that the same individuals were involved in the various arrangements at issue.
376    The first five parts of the present plea concern the six factors identified in recitals 872 to 883 of the contested decision, while the sixth part concerns specifically the refusal to pay commission.
(a)    The first part of the plea, alleging a failure to demonstrate a single anticompetitive aim
377    The applicants submit that the three elements of the single and continuous infringement did not fall into any overall plan. The fact that certain different courses of conduct were all concerned with distorting prices is not sufficient to prove that they were all aimed at implementing the same overall plan.
378    The applicants put forward three additional arguments in support of their claim. In the first place, it has not been established that there was overall coordination of the pricing of freight services. The refusal to pay commission was not even a component of the pricing of freight services. In the second place, the Commission relies in support of its finding of the existence of a single aim on an alleged network of contacts, but has failed to give any further explanation in that regard. In any event, its finding is incorrect, inasmuch as the contacts identified were fragmented across a number of distinct groups and most of them were bilateral. According to the applicants, the Commission distorted the statements of certain carriers cited in the contested decision. In the third place, none of the evidence cited in the contested decision supports the allegation that the element of the single and continuous infringement relating to the SSC is an extension of its element relating to the FSC.
379    The Commission disputes the applicants’ line of argument.
380    It is true that, as the applicants claim, the concept of a single objective cannot be determined by a general reference to the distortion of competition in a given sector, since an impact on competition, whether as object or effect, is an essential element of any conduct covered by Article 101(1) TFEU. Such a definition of the concept of a single objective is likely to deprive the concept of a single and continuous infringement of part of its meaning, since it would have the consequence that different instances of conduct which relate to a particular economic sector and are prohibited under Article 101(1) TFEU would have to be systematically characterised as constituent elements of a single infringement (judgments of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission, T‑446/05, EU:T:2010:165, paragraph 92, and of 30 November 2011, Quinn Barlo and Others v Commission, T‑208/06, EU:T:2011:701, paragraph 149).
381    In the present case, the Commission did not confine itself to determining the single anticompetitive objective pursued by the incriminated carriers by a general reference to the distortion of competition in the freight sector. In recital 872 of the contested decision, the Commission found that that objective ‘was in pursuit … of distorting competition in the [freight] sector … by coordinating [the] pricing behaviour [of the incriminated carriers] with respect to the provision of airfreight services by eliminating competition concerning the charging, amount and timing of the FSC, the SSC and the [refusal to pay] commission to [freight] forwarders on surcharges’. In recital 874 of that decision, the Commission referred to a ‘network of contacts which [had] ensured that discipline was maintained in the market and that increases arising from the fuel indices were to be applied in full and in a coordinated way thus removing pricing uncertainty’. It added that ‘[that] action was extended to the SSC where the parties [had] again sought to remove pricing uncertainty’ and that ‘[this had been] reinforced’ by the refusal to pay commission on surcharges which ‘ensured that pricing uncertainty, which could have arisen from competition on commission payments [in the context of negotiations with freight forwarders], remained suppressed’. In recital 899 of that decision, the Commission stated that the ‘overall aim’ was ‘to agree on pricing or at least to remove pricing uncertainty in the [freight] sector in respect of the FSC, the SSC and the refusal to pay commission on surcharges’.
382    None of the three additional arguments raised by the applicants in support of this part of the plea is capable of calling that analysis into question.
383    In the first place, as regards the Commission’s failure to demonstrate the existence of overall coordination of the pricing of freight services, it should be noted that the applicants are mistaken in two respects.
384    First, it should be noted that the Commission did not conclude that there was such coordination. On the contrary, it found that the single and continuous infringement related exclusively to certain elements of the price of freight services, from which tariffs were excluded (see, in particular, recitals 107, 108 and 703 of the contested decision).
385    Second, as regards the refusal to pay commission, it is true that the Commission described it as an element of the price of freight services in recital 108 of the contested decision and found that it contributed to the coordination of the conduct of the incriminated carriers in relation to the pricing of those services in recital 872 to that decision. Those recitals must, however, be read in their context.
386    Recital 5 of the contested decision reads as follows:
‘… By refusing to pay commission, the carriers ensured that surcharges did not become subject to competition through the negotiation of discounts with customers.’
387    Similarly, in recital 879 of the contested decision, the Commission considered that the commission constituted ‘in fact’ discounts on surcharges, thus showing that it did not endorse, through the use of the term ‘commission’, the existence of an agency model between carriers and freight forwarders.
388    It is apparent from those two recitals that the Commission analysed the refusal to pay commission as a tariff coordination measure whose aim was to align the conduct of the incriminated carriers which had to respond to requests for discounts or rebates from their freight forwarder customers.
389    It is true that, in recital 879 of the contested decision, the Commission also stated that ‘[the] commission on surcharges … would otherwise have been payable if part of rates’.
390    However, that sentence does not contradict the passages from the contested decision cited in paragraphs 386 and 387 above.
391    First, it is apparent from recitals 675 to 702 of the contested decision that the discounts requested by the freight forwarders from 2004 onwards were presented as commissions on the collection of surcharges from shippers and that, in their contacts in that regard, the carriers themselves used the expressions ‘commission’ or ‘remuneration’, as is shown in particular by recitals 681 to 683, 685, 695, 696, 698 and 700 of that decision.
392    It follows that the use of the word ‘commission’ by the Commission to designate the conduct covered by the element at issue of the single and continuous infringement, far from constituting a statement of its position on the business relationship model then in force between carriers and freight forwarders, merely reflected the way in which they referred to the discounts sought by freight forwarders from 2004 onwards.
393    There is therefore no reason to consider that the reference to ‘commission on surcharges’ in recital 879 of the contested decision is inconsistent with the reference, in the same recital and elsewhere in that decision, to ‘discounts on the surcharges’.
394    Second, it should be noted that the reference, in recital 879 of the contested decision, to the fact that commission would be payable if the surcharges were part of rates is made immediately after the finding that the refusal to pay commission was facilitated by keeping the surcharges ‘as a discrete element of the overall price, distinct from rates’. Read in its context, that reference is therefore to be understood as meaning that the carriers, by making a distinction between surcharges and rates in their invoicing, prevented the discounts, or ‘commission’, which were applicable to the rates, being applied to the surcharges.
395    Thus, the reference in question, which does not concern the discounts on surcharges, but discounts on rates, does not relate to the nature of the ‘commission on surcharges’ and does not support, in particular, the finding that they represented not a discount or a rebate, but an element of the price of the freight services which the freight forwarders should have paid to the carriers.
396    In so far as the Commission was entitled to classify the commission as discounts or rebates, it was justified in finding, in recital 874 of the contested decision, that the refusal to pay commission ‘ensured that pricing uncertainty, which could have arisen from competition on commission payments [in the context of negotiations with freight forwarders], remained suppressed’. It follows that it was also justified in finding, in recital 872 of that decision, that the refusal to pay commission contributed to the attainment of the single anticompetitive aim pursued.
397    In the second place, as regards the applicants’ argument that the Commission did not explain the existence of a ‘network of contacts’ in recital 874 of the contested decision, it should be noted that it is unfounded. The Commission described that network in recitals 107 and 109 to 112 of that decision. It is true that, as the applicants observe, different types of contacts were involved. However, as is apparent from recitals 107 and 109 to 111 of that decision, those contacts all formed part of a complex and wider network, which included contacts which took place within various forums, at various levels in the incriminated carriers, took various forms and, in some instances, related to various geographical areas.
398    Since the applicants’ assertion that the contacts within the BAR in Singapore and the BAR CSC in Hong Kong were separate from those within the WOW alliance or ‘core group’ is in no way substantiated, it cannot call that assessment into question.
399    In the third place, as regards the applicants’ argument relating to the extension to the SSC of the coordination relating to the FSC, it should be noted that the Commission failed to substantiate its analysis in the contested decision. Moreover, it failed to respond to that argument in its written pleadings before the Court. It must, however, be observed that that extension is not the necessary basis for the Commission’s assessment that the three elements of the single and continuous infringement pursued a single anticompetitive aim.
400    Since the applicants have failed to call into question the validity of the other evidence on which that assessment is based, the present argument must be rejected as ineffective.
401    The present part of the plea must therefore be rejected.
(b)    The second part of the plea, alleging that the conduct in question did not relate to a single service
402    The applicants submit that, in the present case, the Commission ought to have defined the market to which its investigation related, since its finding of an infringement was made on the basis of conduct relating to routes that do not affect trade between Member States. According to the applicants, the Commission should have established, at the very least, the existence of a single service. In any event, the services at issue vary in both material and geographical terms.
403    The Commission disputes the applicants’ line of argument.
404    As a preliminary point, it should be noted that for the purposes of applying Article 101(1) TFEU, the reason for defining the relevant market is to determine whether an agreement is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the internal market. There is an obligation on the Commission to define the market in a decision applying Article 101(1) TFEU only where it is impossible, without such a definition, to determine whether the agreement, decision by an association of undertakings or concerted practice at issue is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the internal market (see judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 129 and the case-law cited).
405    In the present case, the applicants do not argue that it was impossible to determine whether the single and continuous infringement had as its object the restriction and distortion of competition in the internal market without first defining the market at issue. As regards the condition that trade between Member States must be affected, the applicants merely state that ‘conduct relating to routes that do not affect the EU or inter-State trade (e.g., coordinating the FSC on a flight between non-EU airports) is used as a basis to find an infringement of Article 101 TFEU’. As was held in paragraphs 357 to 363 above, the Commission did not include routes between airports situated outside the EEA within the scope of the single and continuous infringement.
406    In so far as the applicants refer to EEA‑third country routes, it should be recalled that Article 101 TFEU and Article 53 of the EEA Agreement do not require that each component of an agreement, taken in isolation, be capable of having a significant or appreciable effect on trade between Member States. It is the agreement as a whole that must be capable of having such an effect (see, to that effect, judgment of 14 May 1997, VGB and Others v Commission, T‑77/94, EU:T:1997:70, paragraph 126). Such an overall examination is also justified in the case of a single and continuous infringement (see, to that effect, judgment of 24 September 2009, Erste Group Bank and Others v Commission, C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P, EU:C:2009:576, paragraphs 55 to 59).
407    In those circumstances, it cannot be considered that it was necessary to define the relevant market in order to determine whether the single and continuous infringement was capable of affecting trade between Member States. The Commission was therefore right to find, in recital 74 of the contested decision, that it was not required to define that market and, consequently, refrained from doing so.
408    The Commission was also right to find, in recital 877 of the contested decision, that the ‘arrangements concern the provision of airfreight services and the pricing thereof’ and referred to a ‘[single] product/service’.
409    Where there are infringements of Article 101 TFEU such as that at issue in the present case, it is the agreements and activities of the cartel which determine the relevant markets (see, to that effect, judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 131 and the case-law cited).
410    As was held in paragraphs 266 to 277 above, the Commission was correct to conclude that the surcharges were measures of general application which were intended to be applied ‘on all routes, on a worldwide basis’ and that the refusal to pay commission ‘was equally general in nature’.
411    It follows that the members of the cartel at issue themselves determined the products or services which were the subject of their discussions and concerted practices by including freight services in their discussions, without distinction according to their place of departure or origin, except in order to make adjustments on the basis of local conditions (footnote 1323 of the contested decision).
412    As regards the applicants’ argument that ‘[variations] in the nature of the service include, for example, … whether it includes ground handling services; and whether the cargo is handled on an express or standard basis’, suffice it to note that there is nothing to show that the discussions between the incriminated carriers distinguished freight services according to those criteria.
413    The Commission was therefore justified in classifying the provision of freight services as a ‘single service’, as described in recitals 14 to 18 of the contested decision.
414    The present part of the plea must therefore be rejected.
(c)    The third part of the plea, alleging an error in the Commission’s identification of a group of undertakings with a common interest in so far as concerns the three elements of the single and continuous infringement and an error in the conclusions which the Commission draws
415    The applicants submit that the Commission’s assertion that the same undertakings were involved in the conduct that constituted the single and continuous infringement is inconsistent with its finding, first, that only a more limited group participated in the conduct relating to the SSC and the refusal to pay commission and, second, that there was a core group of carriers whose exchanges took place differently, albeit without proving that the latter’s exchanges reinforced the effect of contacts between other carriers or contacts taking place on other markets.
416    The applicants add that, even if the same undertakings did participate in the three elements of the single and continuous infringement, that would not in itself suffice to establish the existence of a common strategy. That is especially true where, as in the present case, the threshold applied in establishing an undertaking’s participation in the infringement is particularly low.
417    The Commission disputes the applicants’ line of argument.
418    It should be borne in mind that, when determining whether there has been a single infringement and an overall plan, the fact that the undertakings involved in the various actions in question were identical may be taken into account (see paragraph 371 above). Therefore, as the Commission correctly observed in recital 878 of the contested decision, that identity need not be perfect, but may be partial (see, to that effect, judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 128, and of 9 September 2015, Samsung SDI and Others v Commission, T‑84/13, not published, EU:T:2015:611, paragraph 43).
419    The Commission cannot therefore be criticised for relying in recital 878 of the contested decision on the fact that the undertakings which participated in the elements relating to the SSC, the FSC and the refusal to pay commission were the same as a factor which, among others, tended to demonstrate that those three elements formed part of a single infringement.
420    It was therefore without error or contradiction that, in recital 878 of the contested decision, the Commission relied on the fact that some of the undertakings involved in the various elements of the single and continuous infringement were the same.
421    That conclusion is not affected by the applicants’ other arguments.
422    As regards the applicants’ argument relating to a ‘core group’ of carriers whose exchanges took place differently from those of the other incriminated carriers, it is sufficient to observe that the applicants have failed to explain how it is intended to show that the Commission erred in finding, in recital 878 of the contested decision, that the ‘same undertakings are involved in the arrangements’.
423    As regards the applicants’ argument that the identity of the undertakings involved is not in itself sufficient to establish the existence of a common strategy, it is sufficient to observe that that is only one of the factors on which the Commission relied in order to conclude that the infringement at issue was a single infringement.
424    The present part of the plea must therefore be rejected.
(d)    The fourth part of the plea, alleging a failure to demonstrate that the infringement had a single and continuous nature
425    The applicants claim that the Commission was wrong to find that the single and continuous infringement was of a ‘single nature’. First, they submit that the Commission found that the three elements of that infringement related to the pricing of freight services, whereas the FSCs were different from one region to another and were not applied in a uniform manner. Second, according to the applicants, there is no evidence that the contacts relating to the FSC were extended to the SSC, or that the contacts relating to the SSC did not begin separately from those relating to the FSC. Third, there is no evidence that coordination in relation to the refusal to pay commission contributed to the achievement of the aims pursued by the surcharges. In addition, commission pertains to the market for the purchase of services from freight forwarders, which is different from the market to which the surcharges relate.
426    The Commission disputes the applicants’ line of argument.
427    It should be observed that, in recital 879 of the contested decision, the Commission concluded that the three elements of the single and continuous infringement were of a ‘single nature’. That recital states as follows:
‘The infringement is concerned with price coordination. Fundamentally, all of the various elements are concerned with pricing matters, more particularly surcharges. … [The] pricing contacts between carriers initially started in respect of the FSC and spread to the introduction and application of the SSC with the aim of eliminating competition with respect to the application and level of these surcharges. As the FSC and SSC were kept as a discrete element of the overall price, distinct from rates, carriers were able to further cooperate in refusing to pay commission on surcharges, which would otherwise have been payable if part of rates. This ensured that surcharges did not become subject to competition through the negotiation of commission (in fact discounts on the surcharges) with customers. The contacts concerning the FSC, the SSC and the refusal to pay commission … therefore displayed a link of complementarity, in that each of them was intended to deal with one or more consequences of the normal pattern of competition, and, through that interaction, contribute to the attainment of the single objective desired by those responsible, within the framework of an overall plan. The anti-competitive contacts directly concerned the level of surcharges and ultimately the level of the final price payable by customers.’
428    In the present case, the applicants dispute the three grounds on which that analysis is based, namely, first, the fact that the three elements of the single and continuous infringement relate to the pricing of freight services, second, the existence of a link of complementarity between those three elements and, third, the extension to the SSC of the contacts relating to the FSC.
429    First, as regards the question whether the three elements of the single and continuous infringement related to the pricing of freight services, it should be noted that the applicants merely rely, in essence, on regional differences in the implementation of the FSC. Such differences do not, however, alter the fact that the FSC is a component of the price of freight services (recital 17 of the contested decision) and that the element of that infringement relating to the FSC therefore concerns the pricing of freight services.
430    As regards the regional differences on which the applicants rely, it should be noted that, as is apparent from paragraph 286 above, they relate to the multi-level structure in which the FSC was implemented (recitals 109, 110, 876, 889 and 1046 of the contested decision and footnote 1323 of that decision). According to the Commission, the surcharges were measures of general application which were not specific to a route but were intended to be applied on all routes worldwide. Decisions on surcharges were generally taken at the level of the head offices of each carrier, which were in contact with each other when a change in the level of surcharge was imminent. At local level, carriers coordinated with each other with the aim, first, of better carrying out the instructions of their respective head offices and adapting them to market conditions and local regulations and, second, of coordinating and implementing local initiatives.
431    Second, as regards the existence of a link of complementarity between the various elements of the single and continuous infringement, it must be observed that the applicants’ argument is based on the premiss that the collection of commission by the freight forwarders concerns markets for purchasing services from the latter which are distinct from the provision of freight services. The applicants withdrew that argument at the hearing, formal note of which was taken in the minutes of the hearing.
432    Third, it must be observed that, as is already apparent from paragraph 399 above as regards the finding of a single anticompetitive aim, the Commission neither explained what it intended by extending to the SSC contacts relating to the FSC, nor did it enable the Court to identify the evidence on which it based its analysis.
433    However, since the applicants have failed to call into question the validity of the other grounds on which recital 879 of the contested decision is based, which in themselves support the conclusion in that recital (see paragraphs 429 to 431 above), that conclusion remains well founded.
434    This part of the plea must therefore be rejected.
(e)    The fifth part of the plea, alleging a failure to demonstrate that discussions were held in parallel concerning the various elements of the single and continuous infringement
435    The applicants claim that the ‘numerous’ pieces of evidence cited in recital 880 of the contested decision are, in fact, scarce and do not convincingly substantiate the conclusion that the various elements of the single and continuous infringement ‘were frequently discussed side-by-side in the same competitor contact’. In a case in which evidence has been adduced of well over 500 alleged contacts, describing a subset of less than 1% of these contacts as “numerous” is a blatant distortion of reality. According to the applicants, it was extremely rare for the contacts to involve all three elements of that infringement. Those elements were, in fact, dealt with separately.
436    The Commission disputes the applicants’ line of argument.
437    It should be observed that, in recital 880 of the contested decision, the Commission found that the surcharges and the refusal to pay commission had been ‘frequently discussed side by side in the same competitor contact’. In support of that finding, the Commission stated that ‘[there] are numerous instances of this in [its] file’. According to the Commission, those ‘instances’ included, ‘inter alia’, the contacts at issue described in recitals 387, 393, 503, 530, 560, 640, 695 and 697 of the contested decision.
438    It should be noted that those eight contacts establish that the surcharges and the refusal to pay commission were ‘frequently discussed side-by- side in the same competitor contact’.
439    Thus, in the first place, recital 387 refers to an email of 23 August 2004, in which a Martinair employee stated that a meeting between the ‘European bosses’ of five incriminated carriers would take place the following Thursday. In the second indent of recital 880 of the contested decision, the Commission found that the ‘surcharges [were discussed] in general terms’ at that meeting.
440    It is true that, as the applicants observe, Martinair’s email of 23 August 2004 does not expressly mention the SSC. The applicants are not, however, justified in inferring from this that the SSC was not discussed at the meeting on the following Thursday. It should be noted that, in recital 387 of the contested decision, the Commission relied on Martinair’s leniency statement in order to find that that meeting had taken place in Amsterdam (Netherlands) and had included ‘a general discussion on the market, shared market experiences’ and ‘surcharges in general terms’. Since the months which followed and preceded that meeting saw the carriers concerned hold several discussions on the subject of the SSC and in the absence of any other explanation, the Commission was entitled to infer from that use of the plural that the discussion had also concerned the SSC.
441    The question whether those discussions concerned the ‘fixing’ of the surcharges is irrelevant. It is apparent from the contested decision, and in particular from recital 908 thereof, that the cartel at issue was not limited to the coordination of surcharges and the refusal to pay commission, but also involved the exchange of information.
442    In the second place, in recital 393 of the contested decision, the Commission refers to an email of 13 July 2004 from Martinair entitled ‘European Carrier Drink (ECD) evaluation’. That email concerned a meeting of the previous evening between several of the incriminated carriers. The applicants do not dispute that the discussions concerned both the FSC and SSC or that the following was noted at that meeting: ‘[We] all agreed that having a small informal session on a regular basis is very useful’.
443    The applicants submit, however, that the Commission did not submit any evidence to show that the three elements of the single and continuous infringement were examined in parallel before 13 July 2004, even though that infringement began in 1999.
444    That argument cannot succeed. First, it should be noted that the discussions relating to the refusal to pay commission did not actually start until January 2005, in response to a concerted initiative by the freight forwarders. The Commission cannot therefore be criticised for not having adduced evidence that the surcharges and the refusal to pay commission were discussed side-by-side before July 2004.
445    Second, as regards the existence of side-by-side discussions on the FSC and the SSC, it should be noted that the SSC was introduced only from the end of 2001 and could not therefore have been the subject of joint discussions with the FSC from 1999. In addition, it is apparent from paragraph 223 above that the eight contacts cited in recital 880 of the contested decision were expressly mentioned only by way of illustration and are therefore not exhaustive. The contested decision identifies several other items of evidence intended to show that the various elements of the single and continuous infringement, including those outside a potential ‘core group’, were the subject of joint discussions before July 2004. That applies, inter alia, to recitals 368 and 667 of the contested decision, which refer to an email from Martinair of 12 May 2004 to the BAR CSC Executive Committee, which refers to the proposed increase of the FSC and the SSC. That is also the case with recital 369 of that decision, which refers to the minutes of a meeting of the BAR CSC Executive Committee of 17 May 2004, at which sensitive information was exchanged concerning the FSC and the SSC.
446    As regards the applicants’ argument that the email described in recital 393 of the contested decision suggests that the ‘core group’ examined the surcharges together ‘on this one occasion’, but does not suggest that the ‘wider group’ of carriers was involved in such ‘parallel contacts’, it must be observed that it is not well founded. The contacts described in recitals 387, 503, 695 and 697 of that decision, to which reference is made in recital 880 of that decision, involve carriers which the applicants do not claim were part of any ‘core group’.
447    In the third place, in recital 503 of the contested decision, the Commission refers to a meeting of BAR CSC of 11 July 2005 at which both the FSC and the refusal to pay commission were discussed. It is true that, as the applicants, in essence, observe, those two subjects were recorded under separate headings in the minutes of the meeting. It must, however, be noted, as the Commission has done, that those subjects were connected in the minds of the participants. Thus, the minutes of the meeting state, inter alia, as follows:
‘BAR CSC has received from HAFFA a letter proposing a 5% collection fee on all pass-on surcharges (such as fuel and security) be commissioned to HAFFA members on all AWB[s] issued in Hong Kong …
[The] BAR CSC is concerned about such commission scheme due to the large amount of money involved as well as the already insufficient coverage of [the FSC] on incremental fuel cost from oil price fluctuation as mentioned [under the heading relating to the FSC]’.
448    In the fourth place, in recital 530 of the contested decision, reference is made to a meeting of 19 October 2005 between AF and Lufthansa. Contrary to the applicants’ submission, it is apparent from that recital that that meeting did not relate to the FSC alone. As the Commission correctly observes, examination of that recital tends to indicate that that meeting also concerned the refusal to pay commission. It is apparent from that recital that AF and Lufthansa ‘assured each other of the consistent application of the surcharges, agreed that no further unilateral measures, such as the capping of the FSC by AF, would be repeated and that the forwarders should not receive a commission on the surcharges’.
449    In the fifth place, in recitals 560, 640, 695 and 697 of the contested decision, reference is made to discussions in the context of the ‘BLACKS’ initiative (name derived from the acronyms of BA (British Airways), LH (Lufthansa), AF, CV (Cargolux), KL (KLM) and Swiss) in Italy; the applicants do not dispute the relevance of this or that, as is apparent from recital 880 of that decision, the discussions ‘covered the FSC, SSC and, in a wider group, refusal to pay commission to forwarders’.
450    It follows from the foregoing that the Commission was entitled to find, without committing any error, that discussions were held in parallel concerning the various elements of the infringement at issue from recitals 387, 393, 503, 530, 560, 640 and 697 of the contested decision.
451    This part of the plea must therefore be rejected.
(f)    The sixth part of the plea, alleging a failure to demonstrate that the refusal to pay commission was anticompetitive and a failure to carry out an assessment under Article 101(3) TFEU
452    The applicants complain that the Commission failed to take account of the legal context in which the refusal to pay commission arose by classifying that refusal as a restriction of competition ‘by object’ and by refusing to apply Article 101(3) TFEU to it. The refusal to pay commission was made in response to a concerted attempt by the freight forwarders to establish their entitlement to a commission and the carriers merely sought to coordinate their interpretation of a provision of the rules adopted by IATA, in a context in which it was legitimate to take industry-wide action.
453    The applicants also submit that the contested decision is vitiated by an error of assessment in that Article 101(3) TFEU was not applied in the present case.
454    The Commission disputes the applicants’ line of argument.
455    The applicants’ arguments are based on the premiss that the incriminated carriers at issue merely coordinated their interpretation of a provision of the IATA rules in response to the concerted requests of freight forwarders. However, that premiss has no factual basis.
456    Admittedly, it is apparent from recitals 675 to 702 of the contested decision that the question of the payment of commission was the subject of differing legal interpretations between the carriers and the freight forwarders. However, the incriminated carriers did not merely define a common position on this issue in order to defend it in a coordinated manner before the competent courts or promote it collectively to public authorities and other professional associations.
457    On the contrary, the incriminated carriers colluded by agreeing, at a multilateral level, to refuse to negotiate the payment of commission with freight forwarders and to grant them discounts on the surcharges. Thus, in recital 695 of that decision, the Commission referred to an email of 19 May 2005, in which a regional manager of Swiss in Italy states that ‘all [the participants in a meeting held on 12 May 2005 had] confirmed that [they would] not accept any [FSC/SSC] remuneration’. In recital 696 of that decision, reference is made to an internal email of 14 July 2005 in which CPA stated that ‘everyone [who participated in a meeting held the previous day] reconfirmed [their] firm intention not to accept any negotiation’ concerning the payment of commission. Also, in recital 700 of that decision, the Commission relied on an internal email in which an employee of Cargolux informed his head office that a meeting was held ‘with all [carriers] operating at [Barcelona airport]’ and indicated that ‘it was a general opinion that we [should] not pay any [commission] on surcharges’.
458    It is also apparent from the contested decision that several carriers exchanged information, at a bilateral level, in order to assure each other that they would continue to adhere to the refusal to pay commission which they had previously agreed. By way of illustration, recital 688 of that decision describes a telephone conversation of 9 February 2006 during which Lufthansa asked AF whether its position on the refusal to pay commission remained unchanged.
459    As to the exception in Article 101(3) TFEU, in order for it to apply to the element of the single and continuous infringement relating to the refusal to pay commission, the four cumulative conditions laid down in that provision must be all be satisfied. First, the agreement must contribute to improving the production or distribution of goods or promoting technical or economic progress, secondly, consumers must be allowed a fair share of the resulting benefit, thirdly, the agreement must not impose on the undertakings concerned restrictions which are not indispensable to the attainment of those objectives and, fourthly, it must not afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products or services in question (see, to that effect, judgment of 7 February 2013, Slovenská sporiteľňa, C‑68/12, EU:C:2013:71, paragraph 31).
460    In general, it is a question of determining the procompetitive effects produced by the agreement infringing Article 101(1) TFEU and of seeing whether those procompetitive effects outweigh the anticompetitive effects (see, to that effect, judgment of 23 October 2003, Van den Bergh Foods v Commission, T‑65/98, EU:T:2003:281, paragraph 107).
461    It follows from the foregoing that for the purposes of applying Article 101(3) TFEU the anticompetitive effects arising from the agreement or practice at issue are examined in the light of its procompetitive effects. That examination is inseparable from the examination of the allegedly legitimate objectives actually pursued by the agreement or practice by means of, inter alia, certain restrictions. Thus, it is only if the restrictions at issue contribute to the attainment of such legitimate objectives that they are capable of being covered by the exception referred to in Article 101(3) TFEU.
462    In recitals 1047 to 1052 of the contested decision, the Commission refused to apply that exception in the present case. The applicants fail to explain how that assessment was flawed, apart from arguing that the purpose of the contacts relating to the refusal to pay commission was to define a ‘common position on issues of the interpretation of contractual provisions with freight forwarders’. However, as can be seen from paragraphs 455 to 458 above, that premiss is factually incorrect.
463    This part of the plea must therefore be rejected, as must the present plea in its entirety.
6.      The second plea in law, alleging errors of law and of fact in the finding that the second applicant participated in the single and continuous infringement, in so far as it relates to the FSC
464    The applicants maintain that it has not been established to the requisite legal standard that the second applicant participated in the element of the single and continuous infringement relating to the FSC, which the Commission disputes.
465    An undertaking which has participated in a single and complex infringement through its own conduct, which fell within the definition of an agreement or a concerted practice having an anticompetitive object for the purposes of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may accordingly be liable also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 42 and the case-law cited).
466    An undertaking may thus have participated directly in all the forms of anticompetitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the forms of anticompetitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 43).
467    In order to impute to the applicants the single and continuous infringement as a whole, the Commission was thus required to establish, either that they had participated in all the forms of conduct comprising that infringement, or that they were aware of all the unlawful conduct which the other participants in the cartel planned or put into effect in pursuit of the same objectives and in which they had not directly participated, or could reasonably have foreseen it and had been prepared to take the risk.
468    In recital 883 of the contested decision, the Commission found that the second applicant was ‘involved’ only in one of the three elements of the single and continuous infringement, namely that relating to the FSC, but was aware of ‘discussions among carriers on [the] SSC and [the refusal to pay] commission’. In recital 1258 of that decision, the Commission added that the second applicant had ‘not [participated] in all elements of [that] infringement’.
469    It follows that the Commission imputed to the applicants the single and continuous infringement on the ground, in particular, first, that the second applicant had proven or presumed knowledge of the elements of the single and continuous infringement relating to the SSC and the refusal to pay commission and, second, had participated directly in its element relating to the FSC.
470    The Commission nevertheless acknowledged, in recital 1258 of the contested decision, that the applicants ‘operated on the periphery of the cartel [at issue]’ and ‘entered into a limited number of contacts with other carriers’. It is thus common ground that the applicants did not participate directly in all the concerted practices relating to the FSC. It is also common ground that the applicants had contacts ‘above all’ with Lufthansa.
471    The question on which the parties disagree is whether the various contacts which the Commission relied on against the applicants as regards the FSC were such as to establish that the applicants were aware of the collusion relating to the FSC in which they had not participated or, to use their own words, of a ‘wider … cartel’.
472    In that regard, it should be borne in mind that the Commission has the burden of proving that the undertaking concerned had the requisite knowledge of the anticompetitive behaviour planned or put into effect by the other participants in the cartel as a whole, but in which it did not directly participate (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 67)
473    In order to do so, the Commission must gather sufficiently precise and consistent evidence to establish that the undertaking concerned had such knowledge (see, to that effect, judgment of 20 March 2002, Sigma Tecnologie v Commission, T‑28/99, EU:T:2002:76, paragraph 51).
474    The Commission is not, however, required to show that the undertaking concerned was or ought to have been aware, in detail, of the concerted practices which took place in the context of the contacts at issue in which it did not participate. Nor does the Commission have to establish that the undertaking at issue was or ought to have been aware of all of those contacts (see, to that effect, judgment of 14 December 2006, Raiffeisen Zentralbank Österreich and Others v Commission, T‑259/02 to T‑264/02 and T‑271/02, EU:T:2006:396, paragraph 193).
475    The undertaking concerned must therefore simply be aware of the general scope and the essential characteristics of the cartel as a whole (see judgment of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 64 and the case-law cited)
476    The Commission described the general scope and essential characteristics of the cartel at issue in Section 4.1 of the contested decision, which it entitled ‘Basic principles and structure of the cartel’. It described in more detail the collusion on the FSC in Section 4.3.2 of that decision, which it headed ‘Nature of the illicit contacts between competitors concerning the fuel surcharge’. It is apparent from those sections that the cartel was worldwide in scope and was based on a network of bilateral and multilateral contacts between competitors over a long period in order to coordinate their pricing behaviour or to reduce uncertainty as regards their pricing policy. As regards, in particular, the FSC, the Commission stated that it was a question of coordinating and monitoring its application and, in particular, of ensuring that competitors would adopt the same measures, that discipline would be maintained and that the increase (or decrease) resulting from the published method would be applied in full and in a coordinated way.
477    In recitals 108, 876, 889 and 1046 of the contested decision and in footnote 1323 of that decision, the Commission stated that the FSC was implemented within the framework of a multi-level structure (see paragraph 430 above).
478    The Commission relies on the evidence adduced in 32 recitals of the contested decision and several statements made by the applicants in order to find that they had the requisite awareness of the element of the single and continuous infringement relating to the FSC. It is necessary to distinguish among those pieces of evidence five different categories. These are, first, statements by the applicants which the Commission describes as ‘admissions’, second, the bilateral email exchanges between the applicants and Lufthansa between February 2003 and January 2006 (recitals 275, 353, 375, 410, 420, 453, 455, 457, 458, 474, 486, 487, 493, 538, 548, 553, 556 and 568 of that decision), third, other bilateral or multilateral contacts with Lufthansa, between 17 February 2003 and the end of 2005 or the beginning of 2006 (recitals 274, 279, 313, 346, 410, 411, 446, 495, 516 and 893 of that decision), fourth, a press release which another carrier sent to the second applicant and Swiss by email of 3 December 2003 (recital 312 of that decision) and, fifth, bilateral or multilateral contacts involving one or more of the incriminated carriers other than Lufthansa and that other carrier (recitals 347, 352 and 492 of that decision).
479    However, as both the applicants and the Commission acknowledge, the evidence in the second of the categories at issue cannot serve to establish that the applicants had the requisite awareness of the collusion relating to the FSC in which they did not participate.
480    In accordance with the case-law referred to in paragraphs 472 to 475 above, it is therefore necessary to ascertain whether the Commission was justified in finding that the body of evidence comprising the evidence in the first and third to fifth categories at issue made it possible to establish that the applicants had the requisite awareness of the general scope and essential characteristics of the element of the single and continuous infringement relating to the FSC, as described in paragraphs 476 and 477 above. To that end, it is necessary to examine the evidence relating to each of those categories in order to determine its probative value before carrying out an overall assessment of that body of evidence in order to determine whether it enables it to be established that the second applicant participated in the single and continuous infringement.
(a)    The evidence in the first category at issue
481    As regards the applicants’ ‘admissions’, the Commission refers in the defence to four statements made by them. The first two ‘admissions’ came from the applicants’ oral statements of 10 April and 7 September 2006, and the latter two ‘admissions’ appeared in their reply to the Statement of Objections.
(1)    The ‘admissions’ from the applicants’ oral statements
482    The Commission claims that the ‘admissions’ from the applicants’ oral statements of 10 April and 7 September 2006 support the conclusion that the applicants knew or should reasonably have known that the ‘price-fixing in relation to FSC went beyond regular discussions between [Lufthansa] and [the second applicant] but extended to other carriers’. According to the Commission, those ‘admissions’ also confirm that the ‘behaviour of other [carriers] was part of the context of [Lan Cargo’s] FSC policy and of its decision to communicate with [Lufthansa] on this issue’.
483    The applicants reply that the Commission cannot rely on ‘admissions’ from their oral statements of 10 April and 7 September 2006 against them. The applicants submit, first, that those statements were not mentioned in the contested decision. Second, they do not support the Commission’s arguments. They merely refer to comments on conduct on the market which were public and obvious for anyone in the industry. It was not apparent that the similarity of the conduct in question was the result of cartel conduct rather than carriers following a market leader.
484    In that regard, it must be recalled that, under Article 263 TFEU, the Court must confine itself to a review of the legality of the contested decision on the basis of the reasons contained in that decision (see judgment of 9 September 2015, Philips v Commission, T‑92/13, not published, EU:T:2015:605, paragraph 43 and the case-law cited). The participation of an undertaking in an infringement of the competition rules must therefore be assessed by reference solely to the evidence gathered by the Commission in that decision. The only relevant question is therefore whether that participation is or is not proved in the light of that evidence (judgments of 15 March 2000, Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraph 726, and of 12 July 2018, The Goldman Sachs Group v Commission, T‑419/14, EU:T:2018:445, paragraph 85).
485    As the applicants observe, the Commission did not rely in the contested decision on the passages in question from their oral statements of 10 April and 7 September 2006.
486    Those passages cannot therefore be taken into account in the present case.
(2)    The ‘admissions’ in the applicants’ reply to the Statement of Objections
487    The Commission contends that the applicants ‘admitted’ that the second applicant participated in the single and continuous infringement by relying, first, on paragraphs 2 and 3 of their reply to the Statement of Objections and, second, on paragraph 34 of that reply.
488    In the first place, the Commission infers, in essence, from paragraphs 2 and 3 of the applicants’ reply to the Statement of Objections that they do not dispute that the second applicant participated in the single and continuous infringement.
489    The applicants reply that that ‘admission’ was limited to their bilateral discussions with Lufthansa, which the Commission never considered to constitute, in themselves and outside the context of the single and continuous infringement, an infringement of Article 101 TFEU. The applicants maintain that they have always stated that they were not aware of the constituent elements of that infringement.
490    It should be noted that, as is apparent from recital 768 of the contested decision, the applicants stated, in paragraph 2 of their reply to the Statement of Objections, that they did not dispute that their activities in relation to the FSC had led to an infringement of Article 101 TFEU. By contrast, and contrary to what the Commission found in that recital, it is not apparent from paragraphs 2 and 3 of that reply that the applicants also admitted their participation, even if minor and limited, in the single and continuous infringement. On the contrary, even though the applicants referred, in paragraph 3 of that reply, to their ‘participation in the events and actions described by the Commission’, that was to indicate that that participation ‘[was] both minor and limited’ and to state that it consisted only of the Capacity Sharing Agreement which they had concluded with Lufthansa, it being also stated that they were unaware that Lufthansa was at the centre of an extensive worldwide cartel.
491    As the applicants correctly observe, it follows that they acknowledged that their bilateral exchanges with Lufthansa were contrary to Article 101 TFEU, but did not admit to having participated in the single and continuous infringement or even to having had the requisite knowledge of its element relating to the FSC.
492    At most, the ‘admission’ in paragraphs 2 and 3 of the reply to the Statement of Objections therefore has probative value as regards the applicants’ acknowledgment of their unlawful bilateral exchanges with Lufthansa.
493    In the second place, the Commission relies on the ‘admission’ derived from paragraph 34 of the applicants’ reply to the Statement of Objections.
494    In recital 893 of the contested decision, the Commission summarised that ‘admission’ as follows, observing that it contradicted the applicants’ argument that during the infringement period they had never been informed or aware that Lufthansa was communicating directly on a regular basis with many other carriers concerning the FSC:
‘In paragraph 34 of the reply to the [Statement of Objections], [the second applicant] also confirmed that in the autumn of 2005 [A (Lufthansa)] told [the second applicant] that [Lufthansa] had regular contacts on FSC levels with KLM’.
495    In that regard, the applicants claim that the ‘admission’ in question is derived from their oral statement of 10 April 2006. In their view, that statement does not refer to ‘regular contacts’ between KLM and Lufthansa of which Lufthansa informed the applicants. They submit that it is apparent from that statement that Lufthansa merely informed them, in autumn 2005, ‘on one occasion’, of the discussions which it was holding about the FSC with other carriers, including KLM.
496    Furthermore, the content of the contacts between the second applicant and Lufthansa at that time suggests that the contact in which the latter informed the second applicant of those discussions related to the regulatory regime in force in Brazil.
497    The Commission replies, in essence, that the reference to ‘regular contacts’ between Lufthansa and KLM is indeed made in paragraph 34 of the Statement of Objections. It adds that there is no evidence that the second applicant was in any way taken aback by what was said to it about those contacts and that the applicants’ argument that the exchange in question took place in the context of the specific regulatory situation in Brazil is unsubstantiated.
498    It should be noted that the summary of the ‘admission’ in recital 893 of the contested decision corresponds to the wording of paragraph 34 of the applicants’ reply to the Statement of Objections, including in so far as it refers to ‘regular contacts’ between Lufthansa and KLM. That paragraph is worded as follows:
‘It was only in the fall of 2005 that [A] eventually told [B] that Lufthansa had had regular contacts on [FSC] levels with KLM’.
499    It is true that the passage in their oral statement of 10 April 2006 relied on by the applicants does not refer to the ‘regular nature’ of those contacts. It must, however, be observed that that passage does not overlap with or contradict the content of paragraph 34 of the applicants’ reply to the Statement of Objections. That passage makes no reference to the regularity of the contacts between Lufthansa and KLM. In that passage, the applicants noted that ‘B [had] also said that, on one occasion, in the fall of 2005, [A] told him that Lufthansa was talking to other carriers, including KLM, about whether to increase the [FSC]’. The expression ‘on one occasion’ does not refer to the frequency of contacts between Lufthansa and other carriers, but to the number of times that the second applicant was informed of those contacts.
500    It follows that the ‘admission’ in paragraph 34 of the applicants’ reply to the Statement of Objections has probative value as regards the fact that they were, in the autumn of 2005, aware that Lufthansa had regular discussions on the FSC with another incriminated carrier, namely KLM. However, it cannot be inferred from that ‘admission’ alone that the applicants were aware of regular exchanges between Lufthansa and the other incriminated carriers, let alone that they had the requisite awareness of the general scope and essential characteristics of the element of the single and continuous infringement relating to the FSC.
501    The ‘admission’ in paragraph 34 of the applicants’ reply to the Statement of Objections does not therefore in itself establish that the applicants had the requisite awareness of the general scope and essential characteristics of the element of the single and continuous infringement relating to the FSC. In accordance with settled case-law (judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 47 and the case-law cited), it is nevertheless necessary to examine whether, together with other evidence, that admission could constitute a body of evidence which enabled the Commission to conclude that that was the case (see paragraphs 571 to 582 below).
(b)    The evidence in the third category at issue
502    As regards bilateral or multilateral contacts with Lufthansa between 17 February 2003 and the end of 2005 or the beginning of 2006, the Commission relied on three types of evidence. These were, first, announcements of increases in the FSC sent to the second applicant and other carriers (see recitals 274, 279, 313, 346, 410, 411, 446 and 495 of the contested decision), second, an internal email from that applicant of 22 August 2005 (recital 893 of that decision) and, third, a meeting between the applicant and Lufthansa on 21 September 2005 (recital 516 of that decision).
(1)    The announcements of an increase in the FSC sent to the second applicant and to other carriers
503    The applicants submit that the Commission did not explain why the seven emails by which Lufthansa had sent its announcements of the increase in the FSC level to the second applicant and to other carriers (recitals 274, 279, 313, 346, 410, 411, 446 and 495 of the contested decision) show that that applicant had the requisite knowledge of the element of the single and continuous infringement relating to the FSC.
504    The applicants also claim that the Commission failed to take three factors into consideration. First, it cannot be inferred from the emails in question that their addressees formed a cartel or were members of an information-sharing network. Since it was not aware of the cartel at issue, the second applicant had no reason to suspect that those emails showed the existence of anticompetitive conduct. Lufthansa also deliberately excluded that applicant from its other multilateral communications on the FSC. Second, Lufthansa in some instances sent its press releases to the carriers’ general mailboxes It is highly unlikely that Lufthansa would have communicated secret or illegal information in that way. That, moreover, contradicts the Commission’s finding that the incriminated carriers attempted to keep that cartel secret. Third, it cannot be considered that the emails in question were evidence of exchanges at head office level. Those emails were sent by Lufthansa’s regional or local sales managers in Frankfurt, usually to other people they knew who were also employed there.
505    The applicants add that two of the emails in question were addressed to Lufthansa’s ‘Dear Partners’. According to the applicants, that means that their addressees were Lufthansa’s commercial partners. Moreover, since the second applicant was aware of those relationships between Lufthansa and the other addressees of those emails, it thought that they were part of that context.
506    The Commission states in the defence that, in the contested decision, it relied in fact only on five of the seven emails in question ‘as proof of the broader conspiracy’, namely those referred to in recitals 274, 279, 346, 446 and 495 of that decision. According to the Commission, those five emails show that Lufthansa included the second applicant, as well as numerous other carriers, in its exchanges of information on the changes in the amount of the FSC and that that applicant knew that Lufthansa was communicating with other carriers in that regard. The fact that that information was public or about to be published does not exclude it from the scope of Article 101 TFEU.
507    The Commission adds that the applicants offer no other explanation for the circulation of the announcements in question to those carriers. The applicants’ argument that each of those carriers had a commercial relationship with Lufthansa is in no way substantiated. It was simpler for them to assume that the carriers were engaged in discussions with Lufthansa as to the fixing of the amount of the FSC. Since the second applicant admitted to having colluded on the amount of its FSC with Lufthansa, the latter’s decision to circulate its proposals for an increase in the FSC was likely to have been regarded by the second applicant as forming part of wider discussions between Lufthansa and other carriers concerning the FSC.
508    According to the Commission, that conclusion is not altered by the applicants’ observation that the emails in question were addressed to the general mailboxes of certain carriers. In so far as those emails were incriminating not so much in terms of their content as in terms of their context, their addressees would not have been surprised to find that, in some cases, they had been sent to such a mailbox.
509    As for the fact that the emails in question were sent to the second applicant’s local employees, that does not show that they did not pass on any information to the head office.
510    It should be noted that, in recitals 274, 279, 346, 446 and 495 of the contested decision, the Commission relies on five emails by which Lufthansa sent announcements of an increase in the FSC to several carriers, including the second applicant.
511    It should be noted that the five emails in question are dated, respectively, 17 February 2003 (recital 274 of the contested decision), 10 March 2003 (recital 279 of that decision), 27 April 2004 (recital 346 of that decision), 7 March 2005 (recital 446 of that decision) and 22 August 2005 (recital 495 of that decision).
512    As acknowledged by the Commission, the five emails at issue are not, in themselves, capable of establishing the requisite knowledge of the applicants of the element of the single and continuous infringement relating to the FSC. Assessed in isolation, those emails could have led to the belief that Lufthansa was merely informing some of its business partners of forthcoming changes to its FSC in an unsolicited and unreciprocated manner. It is true that the applicants have not established that all the addressees of those emails were parties to commercial agreements with Lufthansa. It is, however, common ground that the applicants themselves and several other addressees were. In view of the emails at issue alone, it was therefore not unreasonable to assume that that was the case for all the addressees.
513    As the applicants observe, the fact that the five emails at issue were sent to the general mailboxes of certain carriers was likely to reinforce that impression.
514    The fact remains that, unlike the commercial agreements referred to by the second applicant in its written pleadings, the announcements attached to the five emails at issue were not limited in scope. Moreover, those emails are all contemporaneous with the bilateral exchanges between the second applicant and Lufthansa, which the applicants do not dispute exceeded the scope of their capacity sharing agreement and were, accordingly, anticompetitive. Assessed in the light of those exchanges, those emails could therefore suggest that at least some of their addressees had contacts with Lufthansa concerning the FSC level.
515    The five emails at issue therefore do not, on their own, make it possible to establish that the applicants were aware of the general scope and essential characteristics of the element of the single and continuous infringement relating to the FSC. In accordance with the case-law cited in paragraph 501 above, it is nevertheless necessary to examine whether, together with other evidence, those emails could constitute a body of evidence which enabled the Commission to conclude that that was the case (see paragraphs 571 to 582 below).
(2)    The second applicant’s internal email of 22 August 2005
516    The applicants submit that, in recital 893 of the contested decision, the Commission made errors in its assessment of the scope of the second applicant’s internal email of 22 August 2005. They claim that it cannot be inferred from the content of that email that Lufthansa informed the applicant of its past or future contacts concerning the FSC with other carriers. That email merely states that Lufthansa would ‘perhaps discuss’ the question of the application of the FSC to chargeable weight with other carriers.
517    Furthermore, the second applicant’s internal email of 22 August 2005 specifically concerned the situation in Brazil. The latter constituted a special case, the competent Brazilian authority having, for the first time in autumn 2005, approved an FSC index.
518    The Commission replies that it can be inferred from the second applicant’s internal email of 22 August 2005 that the second applicant thought that contacts between Lufthansa and other carriers concerning the scope of the FSC were ‘routine and normal’ and that that email thus supports the conclusion that the applicant knew or should reasonably have known that other carriers were participating in discussions concerning the FSC.
519    The Commission adds that the reference in the second applicant’s internal email of 22 August 2005 to the Brazilian situation is merely an afterthought.
520    It should be noted that, in recital 893 of the contested decision, the Commission referred to an internal email from the second applicant dated 22 August 2005 to reject the applicants’ argument that, during the infringement period, they had never been informed or aware that Lufthansa was communicating directly on a regular basis with several other carriers concerning the FSC. It summarises the content of that email as follows:
‘[B (the second applicant)] stated that he talked to [A (Lufthansa)] about the FSC implementation on the phone and [that the latter] referred to his conversations with other carriers’.
521    It is true that, as the applicants observe, the summary in question is partly inaccurate. As is apparent from the second applicant’s internal email of 22 August 2005, B asked A if he thought that other carriers would follow Lufthansa if Lufthansa applied the FSC to the chargeable weight. A replied that he was not sure of this but that it was a question which he would ‘perhaps discuss with other carriers’, but did not confirm that he would do so. B indicated that he would raise the issue with A in their next conversation.
522    The fact remains that, as the Commission observes, the second applicant’s internal email of 22 August 2005 tends, on its own, to indicate that the second applicant considered that it was likely or at least conceivable that Lufthansa was consulting with other carriers on the subject of the FSC. It is also apparent that Lufthansa became open, albeit evasive, to the possibility of discussing the application of the FSC to the chargeable weight with other carriers.
523    The reference to the Brazilian situation in the second applicant’s internal email of 22 August 2005 does not call that interpretation into question. It must be held that that reference appears only at the end of that email in the following terms: ‘I advised him of when we will make the change in Brazil; they would probably replicate our change for this origin’. That reference is preceded by references to the European and Asian situations, considerations as to how to respond to the FSC’s declining profitability which do not suggest that they related solely to Brazil, and by the discussion described in paragraph 521 above as to the possibility of contacting other carriers.
524    It follows that, without being capable on its own of demonstrating that the applicants had the requisite knowledge of the general scope and essential characteristics of the element of the single and continuous infringement concerning the FSC, the second applicant’s internal email of 22 August 2005 has probative value as regards the latter’s knowledge of the discussions which Lufthansa had with other carriers on the subject of the FSC.
(3)    The meeting of 21 September 2005 between the second applicant and Lufthansa
525    The applicants submit that the mention that was made at a meeting between the second applicant and Lufthansa on 21 September 2005 of Cargolux’s recommendation on the subject of the FSC was understood by the second applicant as relating to the implementation of a capacity sharing agreement approved by the US Department of Transportation to which Lufthansa and Cargolux were parties and not as part of a worldwide cartel. Moreover, that recommendation merely concerned the methodology for the application of the FSC, which is a standard practice between parties to such an agreement in the freight sector.
526    The Commission contends that, since the applicants have admitted that the second applicant’s contacts with Lufthansa concerning the FSC were anticompetitive and went beyond the scope of their capacity sharing agreement, it is hardly conceivable that they would have interpreted the discussions between Lufthansa and Cargolux as anything other than anticompetitive.
527    It should be observed that, in recital 516 of the contested decision, the Commission referred to a meeting of 21 September 2005 between the second applicant and Lufthansa, during which the discussion concerned, inter alia, the application of the FSC. Those companies discussed, inter alia, ‘[Cargolux’s attempt] to promote the idea of reducing the FSC for short haul flights and applying the regular surcharge only to long haul flights’.
528    It is true that, as the applicants maintain, Lufthansa and Cargolux were parties to a block space/code-sharing agreement. Nor does the Commission dispute that the second applicant was aware of the existence of that agreement.
529    However, it must be observed that the agreement in question related only to the Frankfurt-Detroit-Los Angeles and Frankfurt-Detroit-San Francisco routes. Those flights cannot be considered to be short-haul. The applicants could not therefore reasonably consider that a recommendation relating to short-haul flights could relate to the implementation of the block space/code-sharing agreement between Lufthansa and Cargolux.
530    It follows that, without being capable on its own of demonstrating that the applicants had the requisite knowledge of the general scope and essential characteristics of the element of the single and continuous infringement concerning the FSC, the meeting of 21 September 2005 between the second applicant and Lufthansa has probative value as regards the second applicant’s knowledge of the discussions which Lufthansa had with other carriers on the subject of the FSC.
(c)    The evidence in the fourth category at issue
531    As regards the email from a carrier of 3 December 2003 by which that company sent the second applicant and Swiss a press release announcing the increase in its FSC, the applicants rely, in essence, on three complaints in support of their arguments directed against the Commission’s assessment.
532    In the first place, the applicants submit that the Commission was not justified in relying on the email at issue in order to conclude, in recital 767 of the contested decision, that the second applicant had sent emails to Swiss.
533    In the second place, the applicants claim that the email at issue does not demonstrate that the second applicant was aware of the unlawful or anticompetitive contacts between the carrier at issue and Swiss. Although it may have been aware of those contacts, the second applicant probably presumed that they were lawful. Both Swiss and that applicant were parties to bilateral alliances with the carrier at issue. Those alliances were granted immunity under US competition rules (‘the anti-trust immunity’), which allowed the interested parties to jointly determine various aspects of their pricing.
534    It was for the sake of convenience that the carrier at issue sent the press release in question to its two commercial partners in a single email, which, moreover, concerned an increase in the FSC which had already been publicly announced.
535    In the third place, the carrier at issue was not among the incriminated carriers.
536    The Commission contends that, combined with the other documents in the file, the email at issue is a further factor in support of its finding that the second applicant was aware of the participation of other carriers in the element of the single and continuous infringement relating to the FSC.
537    The Commission contends that the anti-trust immunity enjoyed by the alliances between the carrier at issue and the second applicant and between the carrier at issue and Swiss was not general. It did not extend to price-fixing activities which had no connection with the activities carried out jointly in the context of that alliance.
538    Moreover, since the applicants themselves had anticompetitive discussions with Lufthansa that exceeded the procompetitive objectives of the block space agreement which they had concluded, it is likely that the second applicant at least suspected that the relationship between the carrier at issue and Swiss was of the same nature.
539    As regards the fact that the information in the carrier at issue’s press release had already been publicly announced, it is irrelevant for the purposes of the application of Article 101 TFEU.
540    It should be observed that, in recital 312 of the contested decision, the Commission noted that, by email of 3 December 2003, the carrier at issue had transferred to the second applicant and to Swiss its press release concerning the increase in the FSC. It is apparent from the documents annexed to the application that that press release had already been published on the same day and concerned the increase in the level of the FSC as from 16 December 2003. That increase was intended to apply to both international freight transport from the United States and internal freight transport within the United States. As regards international freight transport originating in countries other than the United States, the FSC is adjusted in so far as local regulations so permit.
541    In recitals 767 and 770 of the contested decision, the Commission inferred from this that the second applicant had, respectively, ‘sent emails to [Swiss] and [Lufthansa] and received [emails] from […]’ and ‘was aware of contacts between […] and [Swiss] concerning the FSC level’.
542    It must be held that, as the Commission agrees in the defence, recital 767 of the contested decision wrongly infers from the carrier at issue’s email of 3 December 2003 that the second applicant sent emails to Swiss.
543    By contrast, the Commission was entitled to find, in recital 770 of the contested decision, that the applicants could infer from that email that Swiss and the carrier at issue were in contact about the FSC level. Admittedly, it cannot be ruled out that that email could have been interpreted as seeking to inform the carrier at issue’s business partners of an imminent increase in the FSC. Nor can it be ruled out that it was for convenience that the carrier at issue approached them by means of a single email rather than two. The fact remains that, as the Commission observes, the information in the press release attached to the email from the carrier at issue of 3 December 2003 exceeded the scope of the anti-trust immunity from which the alliances between the carrier at issue and the second applicant and between the carrier at issue and Swiss benefited. That immunity had a significantly more limited geographical scope than that press release.
544    In those circumstances, in view of the applicants’ regular exchanges with Lufthansa over a period of approximately seven months (see, inter alia, recitals 275, 353, 375, 410 and 420 of the contested decision), it must be held that the press release attached to the carrier at issue’s email of 3 December 2003 was such as to inform the applicants of the existence of discussions concerning the FSC between carriers other than the carrier at issue itself and Lufthansa.
545    It must, however, be stated that, as the Commission concedes in the rejoinder, the email from the carrier at issue of 3 December 2003 was not, at least on its own, capable of establishing that the second applicant had the requisite knowledge of the general scope and the essential characteristics of the element of the single and continuous infringement relating to the FSC. In accordance with the case-law cited in paragraph 501 above, it is nevertheless necessary to examine whether, together with other evidence, that email could constitute a body of evidence which enabled the Commission to conclude that that was the case (see paragraphs 571 to 582 below).
546    The fact that the carrier at issue is not among the incriminated carriers does not alter that conclusion. It should be noted that, as is apparent from recital 845 of the contested decision, each of the pieces of evidence produced by the Commission does not necessarily have to give rise to a firm conviction that each element of the infringement has been committed. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, and whose various elements are able to reinforce each other, meets that requirement (see judgment of 16 November 2011, Sachsa Verpackung v Commission, T‑79/06, not published, EU:T:2011:674, paragraph 60 and the case-law cited).
547    The Commission was therefore entitled, in recital 716 of the contested decision, to state that it ‘[did] not necessarily hold every recital which reference is made to and every single item of evidence therein to be of equal value’ and that ‘the recitals to which reference [was] made [formed] part of the overall body of evidence [it] … [relied] on and [had] to be evaluated in this context’.
548    However, it has not been shown that the Commission had a body of evidence to be relied on against the carrier at issue among the contacts at issue equivalent to that which it had against the applicants.
549    As regards the fact that the information in the carrier at issue’s press release had already been the subject of a public announcement, it is not sufficient, in itself, to rule out the possibility that the carrier at issue’s email of 3 December 2003 was anticompetitive. It should be borne in mind that the exchange of publicly available information infringes Article 101(1) TFEU where it underpins another anticompetitive arrangement (see, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 281).
550    The Commission submits precisely that the carrier at issue’s email of 3 December 2003 must be seen ‘in the wider context of the cartel [at issue]’.
(d)    The evidence in the fifth category at issue
551    As regards the bilateral or multilateral contacts involving one or more of the incriminated carriers other than Lufthansa and the carrier at issue, the applicants dispute, in essence, that the contacts between the second applicant and those carriers described in recitals 347, 352 and 492 of the contested decision can establish their knowledge of the existence of a worldwide cartel. According to the applicants, the Commission made an error of assessment in inferring from those contacts the involvement of the carriers’ head offices, when only local employees with limited powers were involved. The applicants also maintain that the findings of contacts with Martinair and AF concerning the FSC are based on two internal emails from local employees of the second applicant. The first email, which is referred to in recital 347 of that decision, could be interpreted as not having actually involved contacts with Martinair. In the light of the relevant context, it is more likely that the applicant merely assumed that Martinair was considering a change in the FSC level. The second email, which is described in recital 352 of that decision, could reflect the applicant’s internal inferences from information disclosed by AF which is not in itself problematic, namely the date of amendment of the FSC. The second applicant’s reactions to that information reflect the surprise of its employees as regards AF’s failure to comply with a general practice of giving 15 days’ notice between the announcement and the implementation of an amendment to the FSC.
552    As regards the email from Aviainform of 22 July 2005, referred to in recital 492 of the contested decision, it was sent by a consultancy firm. That firm had previously organised a workshop for several sales managers, including the addressees of that email, and attempted to remain in contact with potential customers by sending them unsolicited information. That email does not prove that the carriers which were the addressees of that email were aware of a worldwide cartel concerning the FSC. On the contrary, the exchanges which followed that email did not at any time concern the FSC levels specific to the carriers which were parties to those exchanges.
553    The Commission disputes the applicants’ line of argument. First of all, as regards the internal email referred to in recital 347 of the contested decision, the Commission claims that it shows that the second applicant was at least aware of contacts with Martinair concerning the FSC. The fact, relied on by the applicants, that that email concerned contacts between local staff does not call that finding into question. First, the single and continuous infringement covered local conduct, at which level the precise date of adaptation of the FSC was decided. Second, the second applicant’s head office took into account and was influenced by the email in question from a local employee.
554    Next, as regards the internal emails referring to discussions with AF, the Commission submits, in essence, that, in the light of the reactions to the information at issue within the second applicant, it was entitled to conclude that those emails supported the finding that AF and the second applicant discussed the FSC and exchanged confidential information on that subject. There is nothing in that regard to indicate that the second applicant’s reactions must be interpreted solely as relating to the failure by AF to comply with a general practice of giving notice between the announcement and the implementation of an amendment to the FSC.
555    Lastly, as regards Aviainform’s email of 22 July 2005, the Commission claims that the exchanges between carriers after it was sent and of which the second applicant was an addressee show that Aviainform was part of a larger group of carriers which took it for granted that it was normal to apply the FSC and that to depart from it would be considered to be a misuse.
556    It is appropriate to examine in turn the emails described in recitals 347, 352 and 492 of the contested decision.
557    First of all, as regards the second applicant’s internal email of 27 April 2004, described in recital 347 of the contested decision, it should be noted that it was in response to the circulation, also internally, of a press release of the previous day according to which Lufthansa had announced that it would increase the level of its FSC as from 10 May 2004. In that email, an employee of the second applicant proposes to opt for the same date as Lufthansa, due to the ‘political situation’ with Lufthansa, and states that Cargolux had already increased its FSC on 26 April 2004, while ‘[Martinair] is considering [it]’.
558    In recital 767 of the contested decision, the Commission concluded that the second applicant’s internal emails at issue referred, inter alia, to discussions between the second applicant and Martinair.
559    It is true that the second applicant’s internal email of 27 April 2004 does not refer directly to a discussion between that applicant and Martinair on the subject of the FSC. The applicants themselves acknowledge that that email ‘can be interpreted as meaning … that [its sender] had contacted [Martinair], asked when they would increase the FSC, and been told that they were still considering it’. That interpretation is significantly more plausible than the applicants’ alternative explanation that the sender of that email simply assumed, in the light of the context, that Martinair was still considering the increase in the FSC. The words ‘[Martinair] is considering [it]’ suggest that that applicant was not merely guessing at Martinair's intentions, but had inside knowledge of them. Since the applicants have neither established nor even claimed to have obtained that knowledge from a third party, the Commission was entitled to take the view that the second applicant had acquired that knowledge from Martinair.
560    It follows that the second applicant’s internal email of 27 April 2004 tends to indicate that the second applicant discussed the FSC with carriers other than Lufthansa and the carrier at issue.
561    Next, as regards the second applicant’s internal email of 13 May 2004, it should be noted that it is summarised as follows in recital 352 of the contested decision:
‘An internal … email [from the second applicant] on 13 May 2004 contains comments on the news concerning the announcement of AF regarding the increase of the FSC the same day. An … employee [of the second applicant] stated that he found the increase strange, as he had talked to AF the same morning at … [a] meeting and it was confirmed that AF would maintain the FSC [until] the end of May’.
562    It is apparent from the documents appended to the application that the announcement which formed the basis of the second applicant’s internal email of 13 May 2004 concerned an increase in the FSC as from 17 May 2004. The dissemination of that announcement within the second applicant gave rise to a reaction of surprise on the part of one of its employees, who wondered whether AF ‘[was] not respecting the pre-notified date’. It was only in response to that reaction that another of its employees sent the email of 13 May 2004. It should be noted that, as the applicants observe, that email focuses on the issue of the notice period. The sender of that email thus states that, on the same morning, AF had indicated that the increase in the FSC would be applied only on 15 June, following a notice period of 15 days.
563    It must therefore be held that that exchange tends to prove that the second applicant and AF exchanged information on the timetable for implementation of the FSC.
564    It follows that the second applicant’s internal email of 13 May 2004 also tends to indicate that the latter had discussed the FSC with carriers other than Lufthansa and the carrier at issue.
565    Lastly, as regards the email from the manager of Aviainform dated 22 July 2005 referred to in recital 492 of the contested decision, it should be noted that it was addressed to several carriers, including Lufthansa, Cargolux, Martinair, SAC, Air Canada and another carrier. That email refers to an advertisement published on the inforwarding.com website. That advertisement was the work of a small airline, which operates only in Europe and did not charge FSC on a route between Germany and the United Kingdom. That advertisement is headed: ‘[FSC]?? No thank you!!’. In its email, Aviainform criticised that advertisement and its publication on that website. It thus stated that that advertisement exerted ‘additional, unnecessary pressure, which is also particularly reflected in the current yield situation’. It also criticised the lack of thought as to the effect on the market of statements such as those contained in the advertisement in question.
566    In response, several addressees of Aviainform’s email of 22 July 2005 criticised that use of the inforwarding.com website as a misuse, while a carrier stated that it had tried to contact the small airline, which told it that ‘it was none of its business’.
567    It is true that, as the applicants in essence maintain, those exchanges did not directly concern the level of the FSC or the methodology to be followed in that area, let alone the fixing of the FSC by common agreement.
568    The exchanges in question, in particular the reactions concerning the use of the inforwarding.com website and a carrier’s attempt to contact the author of the advertisement in question, nonetheless demonstrate the shared expectation of several incriminated carriers that discipline would be maintained on the market with respect to the FSC.
569    It follows that those exchanges sought to inform the applicants of the extent of the network of contacts which the Commission’s investigation revealed and the common objectives underlying the element of the single and continuous infringement relating to the FSC.
570    In the light of the foregoing, it must be held that the emails described in recitals 347, 352 and 492 of the contested decision do not, in themselves, make it possible to establish that the applicants had the requisite knowledge of the general scope and essential characteristics of the element of the single and continuous infringement relating to the FSC. In accordance with the case-law cited in paragraph 501 above, it is nevertheless necessary to examine whether, together with other evidence, those emails could constitute a body of evidence which enabled the Commission to conclude that that was the case (see paragraphs 571 to 582 below).
(e)    The overall assessment of the body of evidence
571    In the light of all the foregoing, it should be noted that the Commission relied in the contested decision on a body of evidence composed of 11 indicia in order to find that the applicants had the requisite awareness of the element of the single and continuous infringement relating to the FSC. That decision refers, chronologically, to the following:
–        emails from Lufthansa of 17 February and 10 March 2003 by which Lufthansa sent announcements of increases in the FSC level to several carriers (recitals 274 and 279);
–        the carrier at issue’s email of 3 December 2003 by which it sent its announcement of an increase in the FSC level to the second applicant and to Swiss (recital 312);
–        Lufthansa’s email of 27 April 2004 by which Lufthansa sent an announcement of an increase in the FSC level to several carriers (recital 346);
–        the second applicant’s internal email of 27 April 2004 (recital 347);
–        the second applicant’s internal email of 13 May 2004 (recital 352);
–        Lufthansa’s email of 7 March 2005 by which Lufthansa sent an announcement of an increase in the FSC level to several carriers (recital 446);
–        the exchange of emails of 22 July 2005 in response to the publication of an advertisement on the inforwarding.com website (recital 492);
–        Lufthansa’s email of 22 August 2005 by which Lufthansa sent an announcement of an increase in the FSC level to several carriers (recital 495);
–        the second applicant’s internal email of 22 August 2005 (recital 893);
–        the applicants’ ‘admission’ regarding ‘regular contacts’ between Lufthansa and KLM (recital 893); and
–        the meeting of 21 September 2005 between the second applicant and Lufthansa (recital 516).
572    It should be noted that the contacts referred to in recitals 274, 279, 312, 346, 347, 352 and 446 of the contested decision were such as to inform the applicants of the existence of exchanges of information on the timing and level of the FSC, the scope of which went beyond the bilateral relationship between Lufthansa and the applicants only. It could also reasonably be inferred from those contacts that the FSC was of general application. First, the contacts referred to in recitals 274 and 279 to that decision concern announcements of increases of the FSC over the whole of Lufthansa’s global network. As regards the announcements described in recitals 346 and 446 of that decision, they did not contain any geographical limitation. Second, the increase in the level of the FSC referred to in recital 312 of that decision was intended to apply to international freight transport from both the United States and internal freight transport within the United States, as well as to international freight transport from countries other than the United States, subject to local regulations.
573    However, even taken together, those contacts were not capable of establishing the requisite knowledge by the applicants either of the extent of the network of contacts revealed by the Commission’s investigation, of the expectation that discipline would be maintained with regard to the fixing of the amount of the FSC, or of the multi-level structure in which the FSC was implemented.
574    It is only the inclusion in the body of evidence of a multilateral email exchange of 22 July 2005 described in recital 492 of the contested decision (corroborated in whole or in part by subsequent contacts identified, inter alia, in recitals 516 and 893 of that decision) that makes it possible to fill those gaps. Either that exchange presupposed knowledge of the other essential characteristics of the cartel at issue and of the aspects of its general scope of which it has not been shown that the applicants were previously aware, or it was such as to inform the applicants of those elements for the following reasons. First of all, those emails tend to show that there was, among the various incriminated carriers to which they were addressed, a shared expectation that discipline would be maintained on the market as regards FSC. In view of the bilateral exchanges the applicants had hitherto had with Lufthansa, the carrier at issue (recital 312 of that decision), Martinair (recital 347 of that decision) and AF (recital 352 of that decision), the applicants could, at the very least, reasonably have inferred from those emails that this discipline was maintained by means of coordination of the timing and level of the FSC and monitoring of its application. In the light of the geographical scope of the previous announcements of the increase in the level of the FSC described in recitals 274, 279, 312 or 346 of the contested decision, the applicants could also reasonably have known and assumed the risk that that coordination and monitoring were intended to encompass all routes, worldwide.
575    Next, it should be noted that Lufthansa, Cargolux, SAC, Air Canada and Martinair were among the addressees of the emails referred to in recital 492 of the decision. However, the applicants had already had bilateral contacts with Lufthansa and Martinair concerning the FSC themselves. Second, Cargolux, SAC, Air Canada and Martinair were all among the addressees of the announcements which Lufthansa had previously sent to the second applicant on a multilateral basis. In view of the shared expectation among the addressees of the emails referred to in recital 492 that discipline on the market would be maintained as regards the FSC, the applicants could not reasonably have been unaware that all their previous contacts were part of a wider network bilateral and multilateral contacts.
576    For similar reasons, it must be held that the emails described in recital 492 of the contested decision were such as to establish the requisite knowledge by the applicants of the existence of contacts between Lufthansa and other incriminated carriers.
577    The second applicant’s internal email of 22 August 2005, described in recital 893 of the contested decision, supports that interpretation. In that email, an employee of that applicant reported having asked an employee of Lufthansa if he thought that other carriers would follow Lufthansa if Lufthansa applied the FSC to the chargeable weight and indicated that he intended to ask him again about this in their next conversation. Read in the light of the exchange that took place one month earlier about the inforwarding.com website (recital 492 of the contested decision) and the email of the same day by which Lufthansa communicated an announcement of an increase in the FSC level to several carriers (recital 495 of that decision), that information must be understood as meaning that the applicants were aware of or ought reasonably to have foreseen and assumed the risk of the contacts at issue between Lufthansa and other incriminated carriers.
578    The same applies, first, to the ‘admission’ described in recital 893 of the contested decision, from which it is apparent that, in autumn 2005, the applicants were aware of ‘regular contacts’ between Lufthansa and KLM concerning the FSC and, second, to the meeting of 21 September 2005 between the second applicant and Lufthansa described in recital 516 of that decision, from which it is apparent that the second applicant could, at the very least, reasonably have foreseen and accepted the risk relating to the discussions between Lufthansa and Cargolux.
579    Lastly, it must be observed that, as the applicants note, the email exchange described in recital 492 of the contested decision involved sales managers established in Frankfurt. In the light of the previous exchanges of the applicants, some of which involved local employees and head office employees (see, inter alia, recitals 347 and 457 of the contested decision) and the reference to the possible need to adjust the FSC according to local conditions in the email referred to in recital 312 of that decision, it could reasonably be inferred from that exchange that the FSC was coordinated in a multi-level structure, both at head office level and locally.
580    It follows that the Commission was justified in finding that the second applicant had the requisite knowledge of the element of the single and continuous infringement relating to the FSC, but only from 22 July 2005. It must therefore be held that the Commission erred in holding the applicants liable for the single and continuous infringement, in its element relating to the FSC, before that date.
581    However, contrary to what the applicants maintain, it cannot be considered that that error is such as to entail the annulment of the contested decision in its entirety. Although the Commission erred in finding that the applicants could be held liable for the element of the single and continuous infringement relating to the FSC from 25 February 2003 to 21 July 2005, the applicants have not shown that the Commission erred in finding that they had participated in that infringement after that date.
582    Article 1(2)(i) and (j) of the contested decision must therefore be annulled in so far as it imputes to the applicants the single and continuous infringement, in its element relating to the FSC, before 22 July 2005.
7.      The first plea in law, alleging errors of law and fact in the finding that the second applicant participated in the single and continuous infringement in so far as it relates to the SSC and the refusal to pay commission
583    The present plea, by which the applicants complain that the Commission made errors of law and of fact in finding that the second applicant had participated in the single and continuous infringement, is divided into two parts. They concern, first, the element of the single and continuous infringement relating to the refusal to pay commission and, second, to the element of that infringement relating to the SSC.
(a)    The first part, alleging errors in the finding that the second applicant’s participated in the single and continuous infringement in so far as it relates to the refusal to pay commission
584    The applicants claim, first, that it is apparent from the contested decision that the anticompetitive conduct of the other carriers relating to the refusal to pay commission began only in January 2005 and that, consequently, there was no earlier conduct of which the second applicant could have been aware, within the meaning of the judgment of 6 December 2012, Commission v Verhuizingen Coppens (C‑441/11 P, EU:C:2012:778). The applicants therefore submit that the finding, in the operative part of the contested decision, that they must be held liable for the element of the single and continuous infringement relating to the refusal to pay commission from 25 February 2003 is incorrect.
585    Second, the applicants claim that the Commission cannot conclude, without committing any error, that the second applicant was aware of the coordination relating to the refusal to pay commission prior to the date of the first item of evidence used against it, which is an email from the second applicant dated 17 June 2005.
586    What is more, the second applicant’s email of 17 June 2005 and the chain of emails in which it is included do not support the finding that that applicant was aware of that coordination on that date. According to the applicants, that is apparent both from their content, of which the connection to any worldwide cartel must be doubted, and from the identity of the parties to the exchange, which were all partners in a lawful air alliance and, therefore, entitled to exchange information about their respective prices. The applicants also note that one of its partners is one of the non-incriminated carriers, and so its remarks cannot reflect any awareness of the coordination relating to the refusal to pay commission.
587    The same is true of an internal email from the second applicant dated 4 July 2005, which evidences a legitimate exchange between that applicant and Lufthansa, both of which are partners in the air alliance, and, in so far as it addresses information concerning other carriers, contains no information that was not already public.
588    The Commission disputes the applicants’ line of argument. First, it states that, contrary to what the applicants maintain, the operative part of the contested decision does not indicate that the element of the single and continuous infringement relating to the refusal to pay commission arose before January 2005. The applicants confuse the beginning of the single and continuous infringement with the possible extension of its material scope to the refusal to pay commission.
589    Second, the Commission claims that the second applicant’s internal email of 4 July 2005 reveals that that applicant and Lufthansa addressed the part of the single and continuous infringement relating to the refusal to pay commission in their discussions concerning the FSC. The fact that those companies were partners in an alliance does not justify those discussions, contrary to what the applicants claim, for the first time, before the Court. On the basis of the internal email of 4 July 2005 and the emails exchanged from 17 until 20 June 2005 between the second applicant and another carrier, in which the latter used the expression ‘break ranks’ in connection with the question of paying a commission on surcharges, it was, in the Commission’s submission, natural to conclude that that applicant was aware, or at least ought to have been aware, that that infringement extended to the refusal to pay commission.
590    It must be stated at the outset that, contrary to the applicants’ assertion, the Commission did not find that the second applicant was aware of the element of the single and continuous infringement relating to the refusal to pay commission for the period before January 2005.
591    The applicants are mistaken, in that regard, as to the meaning and scope of the references in Article 1 of the contested decision to the starting dates of their participation in the single and continuous infringement in so far as it concerns the various categories of routes referred to therein. It is apparent from the wording of that article that the periods referred to are those for which the incriminated carriers must be held liable for their involvement in that infringement. By contrast, that article makes no mention of the involvement of the incriminated carriers in each of the three elements of that infringement for the entire duration of their participation in the infringement in question.
592    The grounds of the contested decision confirm that reading of the operative part of that decision. In particular, it is apparent from recital 907 of that decision that, as regards the refusal to pay commission, coordination took place from January 2005 until February 2006. It follows, implicitly but necessarily, that the Commission did not intend to hold the incriminated carriers, including the applicants, liable for that element of the single and continuous infringement before January 2005.
593    It follows that Article 1 of the contested decision cannot be read as holding that the second applicant had the requisite knowledge of the conduct relating to the element of the single and continuous infringement in relation to the refusal to pay commission before January 2005.
594    Accordingly, it is necessary to examine, in the light of the case-law principles recalled in paragraphs 472 to 475 above, whether the evidence relied on against the applicants by the Commission in recital 883 of the contested decision was sufficient to establish that the second applicant had the requisite knowledge of the general scope and essential characteristics, as described in that decision, of the element of the single and continuous infringement relating to the refusal to pay commission.
595    In that regard, it should be borne in mind that, in Section 4.5 of the contested decision, the Commission described the concerted practices relating to the refusal to pay commission.
596    The Commission thus noted, in recital 676 of the contested decision, that, following discussions between freight forwarders on the lack of remuneration associated with the collection of surcharges and the involvement, at the end of 2004, of the international Federation of Freight Forwarders Associations (‘FIATA’), ‘[the carriers] continued to refuse commission on the surcharges and confirmed their relevant intentions to each other in the framework of numerous contacts’.
597    The ‘[basic] principles and structure of the cartel’ described in Section 4.1 of the contested decision (see paragraphs 476 and 477 above) applied, according to the Commission, to all of the elements of the single and continuous infringement, including the refusal to pay commission.
598    In recital 883 of the contested decision, the Commission found that, although the second applicant had not participated in the element of the single and continuous infringement relating to the refusal to pay commission, it was nevertheless aware of the discussions between carriers in that regard, as evidenced by the contacts described in recitals 487 and 681 of that decision.
599    In the first place, as regards the probative value of the emails exchanged between the second applicant and another carrier from 17 to 20 June 2005, it should be noted that those emails are described as follows in recital 681 of the contested decision:
‘[C (the second applicant)] sent an email on 17 June 2005 to [D (…)] asking him whether […] “have received some kind of pressure or information from freight forwarders to make surcharges commissionable. Some of the [freight forwarders] we work with have insisted on this.” [D] replied on 20 June 2005 confirming […] received similar claims from forwarders and rejected them. He noted that “we see no advantage or need to break ranks on this matter”. [C] forwarded the email internally [within the applicants] making also reference to the position of [Lufthansa] concerning this issue.’
600    It can be inferred from the emails exchanged between the second applicant and another carrier from 17 to 20 June 2005 that the second applicant took part in an exchange of information with the other carrier, a competitor, concerning the payment of commission on surcharges. That exchange amounts to a bilateral contact which, while not going so far as to demonstrate a common objective of its two parties to coordinate with each other the payment of commission on surcharges, is at the very least designed to reduce uncertainty as regards their respective policies in that regard.
601    As regards the other carrier’s reply to the second applicant, it is necessary to assess the extent to which the use of the expression ‘break ranks’ could establish that that applicant was aware of greater coordination on the issue of the refusal to pay commission on surcharges, in the light of the other elements apparent from the emails exchanged between that applicant and the other carrier from 17 to 20 June 2005.
602    Thus, contrary to the Commission’s contention, the expression ‘break ranks’ does not necessarily presuppose the prior existence of coordination between carriers. Only the existence of a common approach to the payment of commission, which it cannot be ruled out, as the applicants maintain, results from parallel conduct observed by the other carrier, can be inferred with certainty.
603    It is nevertheless apparent from the emails exchanged between the second applicant and the other carrier from 17 to 20 June 2005 that that applicant exchanged information on the freight forwarders’ request for payment of commission, both with the other carrier and with Lufthansa. Thus, that applicant knew that those carriers were prepared to substitute practical cooperation with it for the risks of competition in negotiating a commission on surcharges. It could therefore reasonably infer from this that those carriers were likely to operate in that way with other carriers.
604    It can therefore be inferred from the emails exchanged between the second applicant and the other carrier from 17 to 20 June 2005 that that applicant was aware of bilateral contacts aimed at reducing uncertainty between carriers as to their respective policies with regard to the refusal to pay commission. However, that exchange does not, on its own, establish that that applicant was aware or ought to have been aware of the existence of more extensive coordination on the issue of the refusal to pay commission. That exchange is nonetheless an indication to that effect capable of contributing to establishing such knowledge in the context of a larger body of evidence.
605    It is true that, as the applicants state, the other carrier and the second applicant were engaged at the material time in an alliance benefiting from anti-trust immunity.
606    However, the emails exchanged between the second applicant and the other carrier from 17 to 20 June 2005 manifestly exceeded the limited geographical scope of the alliance in question. They thus make no reference to routes or to a specific project covered by that alliance. In addition, the other carrier mentions, in its reply to the second applicant, the situation in Europe, which is neither alleged nor, a fortiori, demonstrated, to fall within the scope of that alliance.
607    Such a conclusion also applies as regards the alliance between the second applicant and Lufthansa. The applicants merely refer to that alliance without alleging or, a fortiori, proving that the information given by Lufthansa to the second applicant concerning the refusal to pay commission fell within the limited scope of that alliance.
608    As for the fact that the other carrier is not one of the incriminated carriers, it does not alter the probative value of the emails exchanged between the second applicant and that other carrier from 17 to 20 June 2005 for the reasons set out in paragraph 548 above.
609    In the light of the foregoing, it must be held that the emails exchanged between the second applicant and the other carrier from 17 to 20 June 2005 do not in themselves demonstrate that the second applicant had the requisite knowledge of the general scope and essential characteristics of the element of the single and continuous infringement relating to the refusal to pay commission. In particular, the content of those emails is ambiguous as to the existence of broader coordination between carriers as regards that refusal. In accordance with the case-law cited in paragraph 501 above, it is nevertheless necessary to examine whether, together with other elements, those emails could constitute a body of evidence that allowed the Commission to conclude that this was the case (see paragraph 614 below).
610    In the second place, as regards the probative value of the second applicant’s internal email of 4 July 2005, it should be noted that that email is described as follows in recital 487 of the contested decision:
‘In an internal … email [from the second applicant] on 4 July 2005 [C] reported a conversation with [A (Lufthansa)]. [A] told him that [Lufthansa] had considered increasing the base rates and decreasing the FSC but rejected the idea since the pressure to lower tariffs would begin soon after, mainly in markets with overcapacity, whereas the market understands and accepts that the FSC is not negotiable. [A] also said that “with the increase of the FSC from EUR 0.35 to 0.40 they calculated that they had left EUR 0.03 of the additional 0.05 in the pocket, the rest went away in discounts on tariffs”. He finally noted that [Lufthansa] had resisted pressure from freight forwarders to pay a commission on the FSC.’
611    The second applicant’s internal email of 4 July 2005 confirms that that applicant and Lufthansa were in contact on the issue of the refusal to pay commission. Contrary to the applicants’ contention, the ‘legitimate’ nature of that contact cannot result from the fact that the two carriers were partners in an alliance. It is not apparent from that internal email that that information was restricted in scope to the limited scope of that alliance. By contrast, the applicants correctly maintain that that email does not show that that applicant was aware of the existence of a wider cartel, since it relates only to Lufthansa’s position regarding that refusal and it does not show that Lufthansa was in contact with other carriers in that regard.
612    It is true that, as the Commission submits, the fact that the second applicant and Lufthansa discussed the FSC and the refusal to pay commission in parallel could inform the former about the propensity of the latter to do the same with the other carriers with which it has bilateral contacts concerning the FSC. However, that factor cannot, in itself, establish that the applicant had actual or presumed knowledge of the existence of regular exchanges between Lufthansa and other carriers concerning that refusal. Moreover, evidence that that applicant had the requisite knowledge of the existence of contacts between Lufthansa and other carriers concerning the FSC is adduced by the Commission only as from 22 July 2005, that is to say, after the second applicant’s internal email of 4 July 2005 (see paragraphs 576 and 580 above).
613    It follows that the second applicant’s internal email of 4 July 2005 corroborates the conclusions drawn in paragraph 603 above from the emails exchanged between that applicant and another carrier from 17 to 20 June 2005, in so far as it confirms that that applicant took part in bilateral contacts with Lufthansa aimed at reducing uncertainty between those carriers as to their respective policies regarding the refusal to pay commission. The applicants therefore cannot reasonably argue that they were not aware of the existence of such contacts. As regards the applicant’s knowledge of the existence of wider collusion between carriers as regards that refusal, it must be held that that internal email has only limited probative value. The internal email only helps to establish such knowledge in so far as it can be inferred from it, from the second applicant’s point of view, that Lufthansa was probably discussing the FSC and the refusal to pay commission in parallel with other carriers.
614    In the light of the limited probative value of the second applicant’s internal email of 4 July 2005 and the ambiguity of the content of the emails exchanged from 17 to 20 June 2005 between that applicant and another carrier concerning that applicant’s proven or presumed knowledge of the existence of a broader, bilateral and multilateral coordination that goes beyond the latter’s bilateral exchanges with that other carrier and Lufthansa on the issue of the refusal to pay commission, it must be held that the Commission did not refer to a sufficient body of evidence. That finding holds true even if the second applicant’s participation in the element of the single and continuous infringement relating to the FSC is taken into account.
615    The Commission was therefore wrong to find that the second applicant had the requisite knowledge of the element of the single and continuous infringement relating to the refusal to pay commission. Accordingly, the Commission was wrong to hold the applicants liable for that infringement in its element relating to the refusal to pay commission.
(b)    The second part of the plea, alleging errors in establishing the second applicant’s participation in the single and continuous infringement, as regards the SSC
616    The applicants claim that the Commission cannot conclude that the second applicant was aware of the coordination relating to the SSC prior to the date of the first piece of evidence relied on against it, namely emails exchanged on 10 and 11 February 2006. Nor is it possible to conclude from those emails that the applicant was aware of that coordination on that date, since they relate to public information relating to a surcharge which is not the SSC. Lastly, the Commission failed to establish that the meeting between several carriers also mentioned in the internal email of 11 February 2006 was actually held or what was the purpose of that meeting. Even if that meeting took place and it related to the SSC, the Commission has not established, according to the applicants, how the fact that the second applicant was informed of the existence of that meeting indicates that it was made aware of the unlawful coordination relating to the SSC. The applicants observe in that regard that two of the three carriers mentioned in the internal email in question as participating in the meeting at issue were not incriminated carriers and that the third operated, as the Commission itself admits, on the periphery of the cartel at issue.
617    In the reply, the applicants claim that the Commission infringed the principle of equal treatment by applying a lower standard of proof than to other carriers in order to attribute liability to the second applicant for the element of the single and continuous infringement relating to the SSC. They add that the conclusions which the Commission draws, for the first time, in its defence, as to that applicant’s lack of surprise on receiving the emails in question, amounts to an inappropriate shifting of the burden of proof onto the applicants.
618    The Commission disputes the applicants’ line of argument. First of all, the Commission submits that it was justified in finding that the knowledge of the element of the single and continuous infringement relating to the SSC by the second applicant predated the emails exchanged on 10 and 11 February 2006, on the ground that there was nothing in that exchange to suggest that that applicant was surprised by their content. Next, it claims that the content of the internal email of 11 February 2006 shows that that applicant knew that that infringement included an element relating to the SSC. Lastly, given the context in which the ‘meeting’ is mentioned in this exchange, the Commission maintains that it could infer that the meeting indeed took place and that it addressed the coordination of the SSC.
619    In recitals 577 to 579 of the contested decision, the Commission summarised the objective and content of the contacts relating to the SSC as follows:
‘The SSC, also known as Exceptional Handling Charge (EHC) [at British Airways], or Insurance, Risk, Crisis surcharge [at] AF was introduced by [the carriers] following the terrorist attacks in New York on 11 September 2001. [The carriers] justified the introduction of the surcharge by cost increases for airlines that [were] the result of higher insurance premiums, increased security costs and operational inefficiencies, such as the rerouting of certain flights.
The SSC was calculated by most [carriers] on a per kilogram basis and is applied worldwide.
A number of [the incriminated carriers] discussed, among [other] issues, their plans whether or not to introduce a SSC and if so whether it should be calculated on a per air waybill or on a per kilogram basis. Moreover, the amount of the surcharge and the timing of the introduction were also discussed. [The carriers] furthermore shared with each other ideas concerning the justification to be given to their customers. Ad hoc contacts concerning the implementation of the SSC continued throughout the years 2002-2006. The illicit coordination took place both at head office and local level’.
620    The ‘[basic] principles and structure of the cartel’ described in Section 4.1 of the contested decision (see paragraphs 476 and 477 above) applied, according to the Commission, to all of the elements of the single and continuous infringement, including the SSC.
621    In recital 883 of the contested decision, the Commission found that, although the second applicant had not participated in the element of the single and continuous infringement relating to the SSC, it was nevertheless aware of the discussions between carriers in that regard, as evidenced by the contact described in recital 634 of that decision.
622    Recital 634 of the contested decision reads as follows:
‘[E (…)] forwarded [a …] newsflash to [F (the second applicant)] on 10 February 2006. [F] then forwarded the email internally on 11 February 2006 stating that the […] newsletter concerning the SSC following [Lufthansa] was attached. He added that there would be a meeting on Monday with […], [Air Canada], […], etc. in the office of [….].’
623    The applicants’ line of argument is directed, first, against the probative value of the emails exchanged on 10 and 11 February 2006, in so far as they are deemed to support the finding that the second applicant was aware of the element relating to the SSC. Second, it relates to the Commission’s inference from those emails that that applicant was aware of that element of the single and continuous infringement for the entire duration of its participation in that infringement found in the contested decision, that is to say, from 25 February 2003.
624    In that regard, it must be noted that, by its email of 10 February 2006, the carrier at issue sent the second applicant a press release from which it is apparent that, from 15 February 2006, that carrier would apply a security surcharge presented in that press release as an ‘EU 2320 Fee’, by reference to Regulation (EC) No 2320/2002 of the European Parliament and of the Council of 16 December 2002 establishing common rules in the field of civil aviation security (OJ 2002 L 355, p. 1).
625    When requested by the Court, by way of measures of organisation of procedure, to specify in what respect the ‘EU 2320 Fee’ differs, as they maintain, from the SSC, the applicants stated that its introduction was linked to the entry into force, on 1 February 2006, of new obligations under German law making carriers responsible for so-called ‘non-secure’ freight within the meaning of Regulation No 2320/2002. It was because of the additional costs associated with that new obligation that the carrier at issue introduced such a fee, which is separate from the SSC and additional to it.
626    It must be held that those claims by the applicants are corroborated by the documents which they appended to their reply to the measures of organisation of procedure of the Court. That is the case as regards the date of entry into force of the new measure on 1 February 2006, which is apparent in particular from Annex F.4, which refers to information communicated by several local chambers of commerce and industry in Germany according to which the conditions for freight forwarding from that date would be stricter. That is also the case for the link established by the carriers, such as Lufthansa, which also introduced an ‘EU 2320 Fee’, between the obligations arising from that new mechanism and the introduction of that fee for ‘non-secure’ freight, which is apparent from Annex F.1 which contains Lufthansa’s press release of 2 February 2006 on that subject.
627    Similarly, the second applicant’s internal email of 11 February 2006, although it refers, as the Commission observes, to a ‘security surcharge’ in general rather than to the ‘EU 2320 Fee’, clearly relates to the specific details of the latter. The second applicant emphasises the dichotomy between ‘secure’ and ‘non-secure’ freight and refers in that email to the objective of covering, at least in part, the ‘additional costs’ incurred. In that context, the meeting mentioned in that internal email, which was announced for the following Monday, was presumably to deal with the ‘EU 2320 Fee’.
628    It is true that the specific features of the ‘EU 2320 Fee’ are not necessarily such as to preclude coordination in its regard from forming part of a wider coordination with regard to the SSC. That is the case, first, because of the fact that the ‘EU 2320 Fee’ applied, according to the applicants, only to departures from EU airports, which is in no way inconsistent with the multi-level structure for the implementation of the surcharges described in the contested decision, in the context of which, in particular, the level of the SSC may be adapted to local market conditions and regulations (see paragraph 477 above). Similarly, the fact that the ‘EU 2320 Fee’ is intended to cover costs associated with the implementation of Regulation No 2320/2002 is consistent with the purpose of the SSC described in the contested decision, which is, inter alia, to cover the ‘increased security costs’ (see paragraph 619 above). Lastly, the Commission itself stated in that decision that the ‘majority’ of the carriers calculated the SSC on a per kilogram basis (recital 578 of the contested decision), which amounts to a finding that some of them calculated the SSC (also) per airway bill, as with the ‘EU 2320 Fee’.
629    However, it must be held that the emails exchanged on 10 and 11 February 2006 are not sufficient, in themselves, to establish that the second applicant was aware of the element of the single and continuous infringement relating to the SSC. It can reasonably be inferred from the content of those emails that their scope did not exceed the ‘EU 2320 Fee’. It was pointed out in paragraphs 625 to 627 above that the introduction of that fee took place in a specific regulatory, geographical and temporal context, which the second applicant understood as such. Furthermore, the content of those emails does not reveal any reference to the broader material, geographical and temporal scope that characterised the SSC coordination described in the contested decision. Contrary to what is claimed, in essence, by the Commission, the second applicant’s use of the expression ‘security surcharge’ is not sufficient to justify the finding that it had knowledge, proven or presumed, of the essential characteristics and the general scope of the element relating to the SSC. That is all the more true given that the use of that expression must be assessed in the light of the remainder of that applicant’s internal email of 11 February 2006 (see paragraph 627 above).
630    Since the Commission did not put forward any other evidence or indicia against the applicants, it must be concluded that it was wrong to find that the second applicant had the requisite knowledge of the element of the single and continuous infringement relating to the SSC. Accordingly, the Commission was wrong to hold the applicants liable for that element of the infringement.
(c)    Conclusion as regards the first plea in law
631    In the light of the foregoing, both parts of the present plea must be upheld and Article 1(2) of the contested decision must be annulled in so far as it attributes liability to the applicants for the elements of the single and continuous infringement relating to the refusal to pay commission, on the one hand, and the SSC, on the other.
632    By contrast, contrary to what is claimed by the applicants, it is not necessary to annul the contested decision in its entirety on those grounds. Notwithstanding the errors made by the Commission regarding the applicants’ liability for the two elements at issue of the single and continuous infringement, the applicants have not demonstrated that the Commission erred in law in finding that they had participated in that infringement (see paragraph 581 above).
8.      The seventh plea in law, alleging errors of law and fact and a failure to state reasons in connection with the calculation of the fine
633    The present plea, by which the applicants take issue with the Commission for having made several errors in the calculation of the fine, consists of four parts. They allege, first, an error in the assessment of the gravity of the single and continuous infringement, second, breach of the principles of equal treatment, proportionality and fairness, in that the Commission failed to have regard to relevant regulatory measures and the limited combined market share of the incriminated carriers, third, an error of fact and law, a failure to state reasons and breach of the principles of equal treatment and individual liability in the calculation of the basic amount of the fine, and fourth, an error of fact and law, a failure to state reasons and breach of the principles of equal treatment and individual liability in the determination of the reduction in the fine on account of mitigating circumstances.
(a)    The first part of the plea, alleging an error in the assessment of the gravity of the single and continuous infringement and a failure to state reasons
634    In support of this part of the plea, the applicants rely, in essence, on three complaints relating to the determination, first, of the gravity factor and the additional amount and, second, of the value of sales.
(1)    The gravity factor and the additional amount
635    Primarily, the applicants complain that the Commission infringed the obligation to state reasons and erred in determining the gravity factor and the additional amount.
636    First, the applicants claim, in essence, that the Commission infringed the obligation to state reasons by finding, without further reasoning, that the fact that the single and continuous infringement did not cover the full price of the services at issue was not relevant for determining the gravity factor and the percentage applied to reflect the additional amount.
637    Second, the applicants submit that the Commission erred in determining the gravity factor, in so far as the single and continuous infringement concerned only two elements of the full price of the services at issue, namely the FSC and the SSC, while the refusal to pay commission was not part of that price. That infringement did not therefore relate to the most important element of that price, namely the actual freight rate, the war risk surcharge or the United States customs surcharge. However, competition between carriers is on the total price of the freight service. An increase in surcharges could thus have been offset by a reduction in other price components, by the ‘waterbed effect’. In their reply, the applicants clarify that carriers might have an incentive to coordinate specific components of that price, without increasing the total price, for example, if that reduced their transaction costs.
638    The applicants add that that error extends mutatis mutandis to the additional amount referred to in recital 1219 of the contested decision.
639    The Commission disputes the applicants’ line of argument.
640    First, as regards the alleged inadequacy of the statement of reasons, it is appropriate to refer to the principles recalled in paragraphs 339 and 340 above.
641    In recitals 1199 to 1208 of the contested decision, the Commission examined the ‘nature’ of the single and continuous infringement in order to determine the gravity factor. In recital 1199 of the contested decision, the Commission recalled that ‘[horizontal] practices relating to prices are by their very nature among the most harmful restrictions of competition, as they distort competition on a key parameter of competition’. In the same recital, the Commission added that the ‘agreements and/or concerted practices to which [the contested decision] [related] concerned the fixing of various elements of the price’.
642    In recital 1200 of the contested decision, the Commission stated that the ‘fact that the arrangements did not cover the entire price for the services in question is immaterial’.
643    It follows that, for the Commission, the mere fact that a horizontal practice relates to price fixing is sufficient to classify it among the restrictions which are, by their very nature, among the most harmful restrictions of competition. By contrast, according to the Commission, the fact that the practice at issue only covered part of the final price does not enable it to be excluded from that category of restrictions, since fixing a part of that price is sufficient to distort competition on a key parameter of competition.
644    As regards the additional amount, it must be borne in mind that, according to point 25 of the 2006 Guidelines, irrespective of the duration of an undertaking’s participation in the infringement, the Commission includes in the basic amount a sum of between 15 and 25% of the value of sales, in order to deter undertakings from even entering into horizontal price-fixing, market-sharing and output-limitation agreements. For the purpose of deciding the proportion of the value of sales to be considered in a given case, the Commission will have regard to a number of factors, in particular those referred in point 22 of those guidelines. Those factors are the same which the Commission takes into account for the purpose of setting the gravity factor and include the nature of the infringement, the combined market share of all the parties concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.
645    The Courts of the European Union have inferred from this that, even if the Commission does not set out a specific statement of reasons as regards the proportion of the value of sales used as the additional amount, the mere reference to the analysis of the factors used in order to assess the gravity of the infringement suffices in that respect (judgment of 15 July 2015, SLM and Ori Martin v Commission, T‑389/10 and T‑419/10, EU:T:2015:513, paragraph 264)
646    In recital 1219 of the contested decision, the Commission found that the ‘percentage to be applied for the additional amount should be 16%’ given the ‘specific circumstances of the case’ and the criteria used to determine the gravity factor.
647    The grounds of the contested decision therefore enable the applicants, first, to understand the reasons why the Commission found that the fact that the single and continuous infringement did not cover the full price of the services at issue was not relevant for the purpose of determining the gravity factor and the percentage applied to reflect the additional amount, and, second, enables the Court to carry out its review.
648    The complaint alleging an infringement of the obligation to state reasons must therefore be rejected.
649    Second, as regards the merits of the Commission’s determination, it should be noted that, according to Article 23(3) of Regulation No 1/2003, in fixing the amount of the fine, regard must be had in particular to the gravity of the infringement.
650    Points 19 to 23 of the 2006 Guidelines provide as follows:
‘19.      The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement.
20.      The assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case.
21.      As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales.
22.      In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.
23.      Horizontal price-fixing, market-sharing and output-limitation agreements, which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.’
651    According to the case-law, a horizontal agreement by which the undertakings concerned agree not on the total price but on one element thereof constitutes a horizontal price-fixing agreement within the meaning of point 23 of the 2006 Guidelines and is therefore among the most harmful restrictions of competition (see, to that effect, judgment of 29 February 2016, UTi Worldwide and Others v Commission, T‑264/12, not published, EU:T:2016:112, paragraphs 277 and 278).
652    It follows that, as the Commission pointed out in recital 1208 of the contested decision, such an agreement generally merits a gravity factor at the higher end of the scale of 0 to 30% referred to in point 21 of the 2006 Guidelines.
653    According to the case-law, a gravity factor which is significantly lower than the upper limit of that scale, is highly favourable to an undertaking which is party to such an agreement (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 125) and may even be warranted in view of the very nature of the infringement (see judgment of 26 September 2018, Philips and Philips France v Commission, C‑98/17 P, not published, EU:C:2018:774, paragraph 103 and the case-law cited).
654    In recital 1199 of the contested decision, the Commission specifically considered that the ‘agreements and/or concerted practices to which [the contested decision] relates concerned the fixing of various elements of the price’.
655    The Commission was therefore right in characterising, in recitals 1199, 1200 and 1208 of the contested decision, the conduct at issue as a horizontal price-fixing agreement or practice, even though it ‘did not cover the entire price for the services in question’.
656    The Commission was therefore entitled to conclude, in recital 1208 of the contested decision, that the agreements and practices at issue were among the most harmful restrictions of competition and, accordingly, merited a gravity factor ‘at the higher end of the scale’.
657    The gravity factor of 16% which the Commission adopted in recital 1212 of the contested decision, which was significantly lower than the upper limit of the scale referred to in point 21 of the 2006 Guidelines could therefore be warranted in view of the very nature of the single and continuous infringement (see paragraph 656 above).
658    However, it must be observed that, as is apparent from recitals 1209 to 1212 of the contested decision, the Commission did not rely solely on the nature of the single and continuous infringement in order to set the gravity factor at 16%. The Commission thus referred in that decision to the combined market shares of the incriminated carriers worldwide and on intra-EEA and EEA‑third country routes (recital 1209), to the geographical scope of the cartel at issue (recital 1210) and to the implementation of the agreements and practices at issue (recital 1211).
659    However, the applicants do not dispute, in the context of the present part of the plea, the merits of those factors for the purposes of setting the gravity factor.
660    In those circumstances, the applicants cannot claim that a gravity factor of 16% was unlawful.
661    None of the applicants’ arguments is capable of calling that conclusion into question.
662    In the first place, as regards the possibility, which is, moreover, unsubstantiated, that the increase in the surcharges may have been offset by the reduction of the other elements of that price by means of a ‘waterbed effect’, it must be recalled that the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3) provided that, in assessing the criterion of the infringement’s gravity, account had to be taken of, inter alia, its actual impact on the market, where this can be measured.
663    However, that requirement no longer appears in the 2006 Guidelines which are applicable in the present case. Those Guidelines do not therefore require the Commission to consider the actual effect of the infringement on the market in order to determine the proportion of the value of sales to be taken into account on the basis of the gravity of the infringement in accordance with points 19 to 24 of the 2006 Guidelines (see, to that effect, judgment of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 539).
664    Nor does the case-law require it to do so, at least with regard to a restriction of competition ‘by object’.
665    The gravity of an infringement of the competition rules must be assessed in the light of numerous factors. Those include, inter alia, the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (order of 25 March 1996, SPO and Others v Commission, C‑137/95 P, EU:C:1996:130, paragraph 54, and judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 241).
666    The effects on the market may indeed be taken into account amongst those factors, but they are crucial only when one is dealing with agreements, decisions or concerted practices which do not directly have as their object the prevention, restriction or distortion of competition and which are not therefore liable to fall within the scope of application of Article 101 TFEU except as a result of their actual effects (judgment of 12 December 2018, Servier and Others v Commission, T‑691/14, under appeal, EU:T:2018:922, paragraph 1809).
667    Otherwise, the Commission would, at the stage of calculating the amount of the fine, be placed under an obligation which, according to settled case-law, it is not subject for the purposes of applying Article 101 TFEU where the infringement in question has an anticompetitive object (see judgment of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 64 and the case-law cited).
668    In recital 903 of the contested decision, the Commission classified the conduct at issue as a restriction of competition ‘by object’. It was therefore not required to take into consideration the actual impact of the single and continuous infringement on the market
669    The fact remains that, if the Commission considers it appropriate, for the purposes of calculating the amount of the fine, to take account of the actual impact of the infringement on the market, it cannot just put forward a mere presumption but must provide specific, credible and adequate evidence with which to assess what actual influence the infringement may have had on competition in that market (judgment of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 82).
670    Similarly, although the Commission is not required, for the purpose of setting fines, to establish that the infringement in question conferred unlawful gains on the undertakings concerned, or to take into consideration, where appropriate, the absence of such gains, the assessment of the unlawful gains from the infringement may be relevant if the Commission bases itself precisely on such gains for the purpose of setting the gravity factor (see, to that effect, judgment of 15 March 2000, Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraphs 4881 and 4882).
671    In recital 1199 of the contested decision, when setting the gravity factor, the Commission found that the agreements and practices at issue had ‘operated to the benefit of the [incriminated carriers] and to the detriment of their customers and ultimately the general public’. However, it has not adduced any evidence to support that finding.
672    It should be observed, however, that the finding at issue is not an independent reason on which the Commission relied in assessing the gravity of the single and continuous infringement, but one of a number of considerations which it took into account for the purposes of assessing the nature of that infringement in recitals 1199 to 1208 of the contested decision. That consideration does not constitute the necessary basis for the conclusion that that infringement sought to fix elements of the price of the freight services and was, therefore, capable of justifying a gravity factor at the lower limit of the ‘higher end of the scale’ provided for in point 23 of the 2006 Guidelines for the most harmful restrictions of competition. Accordingly, the present argument is not such as to call into question the assessment of the gravity of the infringement in question set out in the contested decision. Consequently, since the applicants have not demonstrated that the gravity factor was not justified in the light of the other factors taken into account in that decision (see paragraphs 658 and 659 above), that argument must be rejected.
673    As regards the additional amount, taking into account paragraph 644 to 646 above, it is sufficient to note that the arguments put forward by the applicants with regard to the additional amount overlap with those raised by them with regard to the gravity factor, which the Court rejected in paragraphs 649 to 672 above. Those arguments must therefore be rejected for reasons similar to those set out in those paragraphs.
674    It follows that this complaint must be rejected.
(2)    The value of sales
675    In the alternative, the applicants complain that the Commission did not consider that, given the scope of the single and continuous infringement, only the revenue generated from the surcharges and the costs avoided as a result of the refusal to pay commission should be included in the value of sales. In response to the Court’s measures of organisation of procedure, the applicants stated, in essence, that it would be disproportionate and contrary to the 2006 Guidelines to penalise the single and continuous infringement as an agreement fixing the full price by applying to it a gravity factor of 16%, while including in the value of sales the entire amount of sales connected with cartelised services.
676    The Commission disputes the applicants’ line of argument.
677    It must be borne in mind that the concept of the value of sales, within the meaning of point 13 of the 2006 Guidelines, reflects the price, excluding tax, charged to the customer for the goods or services which were the subject of the infringement at issue (see, to that effect, judgments of 6 May 2009, KME Germany and Others v Commission, T‑127/04, EU:T:2009:142, paragraph 91, and of 18 June 2013, ICF v Commission, T‑406/08, EU:T:2013:322, paragraph 176 and the case-law cited). Having regard to the objective pursued by that point, reproduced in point 6 of those guidelines, which consists in adopting as the starting point for the calculation of the amount of the fine imposed on an undertaking an amount which reflects the economic significance of the infringement and the relative size of the undertaking’s contribution to it, the concept of the value of sales must thus be understood as referring to sales on the market concerned by the infringement (see judgment of 1 February 2018, Kühne + Nagel International and Others v Commission, C‑261/16 P, not published, EU:C:2018:56, paragraph 65 and the case-law cited).
678    The Commission may therefore use the total price which the undertaking charged its customers on the relevant market for products or services to determine the value of sales, without it being necessary to distinguish or reduce the various elements of that price according to whether or not they were the subject of coordination (see, to that effect, judgment of 1 February 2018, Kühne + Nagel International and Others v Commission, C‑261/16 P, not published, EU:C:2018:56, paragraphs 66 and 67).
679    As the Commission notes, in essence, the FSC and the SSC are not distinct goods or services which may be the subject of an infringement of Articles 101 or 102 TFEU. On the contrary, as is apparent from recitals 17, 108 and 1187 of the contested decision, the FSC and the SSC are only two elements of the price of the services at issue.
680    It follows that, contrary to the applicants’ contention, point 13 of the 2006 Guidelines did not preclude the Commission from taking into account the entire amount of sales related to the services in question, without dividing it into its constituent parts.
681    In addition, it should be observed that the approach advocated by the applicants amounts to considering that those elements of the price which were not specifically coordinated between the incriminated carriers must be excluded from the value of the sales.
682    In that regard, it should be borne in mind that there is no valid reason to exclude from the value of sales any inputs the cost of which is outside the control of the parties to the alleged infringement (see, to that effect, judgment of 6 May 2009, KME Germany and Others v Commission, T‑127/04, EU:T:2009:142, paragraph 91). Contrary to what the applicants maintain, the same applies to price elements which, like rates, were not specifically the subject of that infringement, but form an integral part of the selling price of the product or service in question (see, to that effect, judgment of 15 March 2000 Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraph 5030).
683    To decide otherwise would have the consequence of requiring the Commission not to take gross turnover into account in some cases but to do so in others, on the basis of a threshold which would be difficult to apply and would give scope for endless and insoluble disputes, including allegations of unequal treatment (judgment of 8 December 2011, KME Germany and Others v Commission, C‑272/09 P, EU:C:2011:810, paragraph 53).
684    The Commission therefore did not infringe point 13 of the 2006 Guidelines when it concluded, in recital 1190 of the contested decision, that the entire amount of sales linked to the services at issue should be taken into account, without it being necessary to split it into its constituent elements.
685    As regards the principle of proportionality, it should be recalled that it requires that the measures adopted by the EU institutions must not exceed what is appropriate and necessary for attaining the legitimate objective pursued (judgments of 13 November 1990, Fedesa and Others, C‑331/88, EU:C:1990:391, paragraph 13, and of 12 September 2007, Prym and Prym Consumer v Commission, T‑30/05, not published, EU:T:2007:267, paragraph 223).
686    In the procedures initiated by the Commission in order to penalise infringements of the competition rules, the application of the principle of proportionality requires that the amounts of fines must not be disproportionate to the objectives pursued, that is to say, by reference to compliance with those rules, and that the amount of the fine imposed on an undertaking for an infringement in competition matters must be proportionate to the infringement, seen as a whole, having regard, in particular, to the gravity and the duration thereof (see judgment of 29 February 2016, Panalpina World Transport (Holding) and Others v Commission, T‑270/12, not published, EU:T:2016:109, paragraph 103 and the case-law cited).
687    In order to assess the gravity of an infringement of the competition rules, as stated in paragraph 665 above, the Commission must take account of a large number of factors, the nature and importance of which vary according to the type of infringement and the particular circumstances of the case. Those factors may, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed and the size and economic power of the undertaking and, consequently, the influence which the undertaking was able to exert on the market (judgment of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 96).
688    According to the case-law, the proportion of the overall turnover which derives from the sale of the goods or services which are the subject of the infringement best reflects the economic importance of that infringement (judgment of 29 February 2016, Panalpina World Transport (Holding) and Others v Commission, T‑270/12, not published, EU:T:2016:109, paragraph 106).
689    The value of sales also has the advantage of being an objective criterion which is easy to apply. It thus means that the action of the Commission is more foreseeable for undertakings and enables them, in pursuit of an objective of general deterrence, to assess the size of the fine they are liable to incur when they decide to take part in an unlawful cartel (see, to that effect, judgment of 29 February 2016, Panalpina World Transport (Holding) and Others v Commission, T‑270/12, not published, EU:T:2016:109, paragraph 159).
690    Point 6 of the 2006 Guidelines sets out those principles as follows:
‘… the combination of the value of sales to which the infringement relates and of the duration of the infringement is regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement. Reference to these factors provides a good indication of the order of magnitude of the fine and should not be regarded as the basis for an automatic and arithmetical calculation method.’
691    In recital 1190 of the contested decision, the Commission specifically concluded that account should be taken of the overall turnover from the sale of freight services rather than only of the elements of their price which were specifically the subject of coordination between the incriminated carriers, namely the surcharges.
692    The mere fact that the surcharges represented only a limited proportion of the second applicant’s total revenues from the sale of freight services does not prove that that approach was disproportionate in the light of the economic importance of the single and continuous infringement.
693    The very fact that an undertaking achieves sales at prices of which only one or several elements have been fixed or have been the subject of unlawful exchanges of information entails a distortion of competition affecting the entire relevant market (see, to that effect, judgment of 23 April 2015, LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 62).
694    It follows that the approach followed in recital 1190 of the contested decision, consisting of taking into account the overall turnover deriving from the sale of freight services, is appropriate for the purposes of contributing to the attainment of the first objective referred to in point 6 of the 2006 Guidelines, which is to reflect adequately the economic importance of the single and continuous infringement. Moreover, the applicants do not demonstrate that that approach was inappropriate for the purposes of contributing to the attainment of the second objective referred to in that point, which is to reflect adequately the relative weight of each of the incriminated carriers.
695    Nor can the applicants maintain that the Commission penalised them as if the cartel at issue had covered the full price of freight services. In accordance with the general methodology laid down by the 2006 Guidelines, the nature of the infringement is taken into account at a later stage of calculating the fine, in the determination of the gravity factor, which, pursuant to point 20 of those guidelines, is to be assessed on a case-by-case basis for all types of infringements, taking account of all the relevant circumstances of the case (judgment of 29 February 2016, Schenker v Commission, T‑265/12, EU:T:2016:111, paragraphs 296 and 297).
696    In the present case, it is true that, in recital 1200 of the contested decision, in assessing the nature of the single and continuous infringement for the purposes of determining the gravity factor, the Commission found that the ‘fact that the arrangements did not cover the entire price for the services in question [was] immaterial’. As can be seen from paragraph 643 above, that recital must be read in the context of the categorisation of the conduct at issue as one of the most harmful restrictions of competition by its nature. It must also be read in the light of the very favourable gravity factor which the Commission adopted in the contested decision for undertakings such as the applicants which participated in horizontal price-fixing practices (see paragraph 653 above).
697    The Commission therefore did not infringe the principle of proportionality when it concluded, in recital 1190 of the contested decision, that the entire amount of sales linked to the services at issue should be taken into account, without it being necessary to split it into its constituent elements.
698    The present part of the plea must therefore be rejected.
(b)    The second part of the plea, alleging a breach of the principles of equal treatment, proportionality and fairness, in that the Commission failed to have regard to relevant regulatory measures and the limited combined market share of the incriminated carriers
699    The applicants argue that the Commission failed to have due regard to the limited combined worldwide market shares of the incriminated carriers, which stood at just 34% in 2005 and warranted a lower gravity factor than 16% being applied, given the Commission’s decision-making practice. They add that the Commission also failed to have due regard to the regulatory framework, which had a significant influence on the conduct at issue, in particular by suggesting that it was not unlawful.
700    The Commission disputes the applicants’ line of argument.
701    As is apparent in particular from point 22 of the 2006 Guidelines (see paragraph 650 above), the gravity of an infringement of competition rules must be assessed having regard to a number of factors. Those include, inter alia, the combined market share of all the parties concerned.
702    In recital 1209 of the contested decision, the Commission took account of the combined market share of the incriminated carriers, finding that it stood at 34% worldwide and was at least as high on intra-EEA and EEA‑third country routes.
703    The only argument put forward by the applicants in support of their contention that the principles of equal treatment, proportionality and fairness justified the setting of the gravity factor at a level below 16% in the light of combined market shares of the incriminated carriers, estimated at 34%, is based on a comparison with the gravity factors set in other Commission decisions.
704    It should, however, be recalled that the Commission’s practice in earlier decisions does not itself serve as a legal framework for fines imposed in competition matters, since that framework is defined solely in Regulation No 1/2003 and the 2006 Guidelines (see judgment of 9 September 2011, Alliance One International v Commission, T‑25/06, EU:T:2011:442, paragraph 242 and the case-law cited), and that it has not, in any event, been demonstrated that the facts of those cases gave rise to those decisions, such as the markets, goods, countries, undertakings and periods concerned, were comparable to those of the present case (see, to that effect, judgment of 29 June 2012, E.ON Ruhrgas and E.ON v Commission, T‑360/09, EU:T:2012:332, paragraph 262 and the case-law cited).
705    It follows that the applicants’ argument that the combined market shares of the incriminated carriers, estimated at 34%, precluded the Commission from setting the gravity factor at 16% cannot succeed.
706    As regards the applicable regulatory framework, it must be observed that, although it is not one of the factors listed in point 22 of the 2006 Guidelines, those factors are merely among the factors listed by way of example and do not, therefore, constitute a binding or exhaustive list of criteria to be taken into account when assessing the gravity of an infringement (see, to that effect, judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 198 and the case-law cited).
707    It follows that, depending on the particular circumstances of the case, the Commission may take account of the regulatory regime applicable for the purpose of setting the gravity factor. It is not, however, required to do so if, as in the present case, the proportion chosen is justified by other factors capable of influencing the determination of gravity.
708    The approach adopted by the Commission in setting the gravity factor is all the more justified since it also took account of the applicable regulatory regimes as mitigating circumstances. It thus acknowledged, in recitals 1264 and 1265 of the contested decision, that the conduct at issue had been encouraged by the ‘regulatory regime and in some cases the application of it’ and, consequently, granted the incriminated carriers a reduction of 15% of the basic amount of the fine under point 29 of the 2006 Guidelines.
709    The applicants have failed to indicate in what way that finding is vitiated by a breach of the principles of equal treatment, proportionality and fairness, other than by the general and unsubstantiated assertion that the regulatory measures in question had been ‘significant with regard to the conduct alleged, not least because [they] may well have caused carriers to consider that the conduct they were pursuing was not unlawful’.
710    The present part of the plea must therefore be rejected.
(c)    The third part of the plea, alleging an error of fact and law, a failure to state reasons and breach of the principles of equal treatment and individual liability in the calculation of the basic amount of the fine
711    The applicants argue that the Commission made errors of fact and law, breached its duty to state reasons and breached the principles of equal treatment and individual liability by setting the fine and the percentage to be applied in the same way for all the incriminated carriers, without regard to their varying degrees of involvement and without objective justification. The applicants claim, in particular, that the Commission disregarded the fact that the applicants were the only incriminated carriers to have participated in only one of the three elements of the single and continuous infringement, namely the FSC element.
712    The applicants clarify that the fact of their limited involvement must be taken into account when the basic amount of the fine is calculated, not when the basic amount is adjusted.
713    The Commission disputes the applicants’ line of argument.
714    At the outset, the complaint alleging breach of the obligation to state reasons must be rejected as unfounded. In the light of the relevant case-law (see paragraphs 715 and 716 below), recitals 1208, 1258 and 1259 of the contested decision enable the applicants to ascertain the reasons why the Commission took account of their limited involvement at the stage of the adjusting the basic amount and to enable the Court carry out its review.
715    As regards the merits of the Commission’s approach, it should be borne in mind that among the factors to be taken into account when assessing the gravity of infringements, are the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from the cartel, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union (see judgment of 26 January 2017, Roca Sanitario v Commission, C‑636/13 P, EU:C:2017:56, paragraph 49 and the case-law cited).
716    It should be borne in mind, however, that the taking into account of any differences between the undertakings that have participated in a single infringement need not necessarily occur when the gravity factor is set but may occur at another stage in the setting of the fine, such as when the basic amount of the fine is adjusted in the light of mitigating and aggravating circumstances under points 28 and 29 of the 2006 Guidelines (see, to that effect, judgment of 26 January 2017, Roca v Commission, C‑638/13 P, EU:C:2017:53, paragraph 67 and the case-law cited)
717    In the context of determining the gravity factor, in recital 1208 of the contested decision, the Commission stated that it would assess the ‘fact that certain carriers may have played a minor or passive role … as a mitigating circumstance’. It thus found, in recitals 1258 and 1259 of that decision, that the applicants’ participation in the single and continuous infringement was limited in nature and, consequently, granted them a 10% reduction in the basic amount of the fine on account of mitigating circumstances.
718    It follows that the Commission did not err in taking account of the applicants’ limited participation in the single and continuous infringement only as mitigating circumstances.
719    As regards the alleged breach of the principle of individual liability, suffice it to note that the applicants have failed to indicate how the taking into account of the extent of their participation in the single and continuous infringement as a mitigating circumstance rather than under the gravity factor was such as to prevent the Commission from examining the relative gravity of the participation of each of the incriminated carriers. Similarly, as regards the alleged breach of the principle of equal treatment, it is sufficient to observe that the applicants have in no way explained how the taking into account of the degree of their participation in the single and continuous infringement as a mitigating circumstance rather than under the gravity factor might have led the Commission to treat incriminated carriers which were in a comparable situation differently or to treat in the same way incriminated carriers which were in a different situation.
720    The present part of the plea must therefore be rejected.
(d)    The fourth part of the plea, alleging an error of fact and law, a failure to state reasons and breach of the principles of equal treatment and individual liability in the determination of the reduction in the fine on account of mitigating circumstances
721    The applicants complain that they obtained the same reduction on account of mitigating circumstances as that granted to Air Canada and SAS, even though their involvement in the cartel at issue was more limited, which is disputed by the Commission.
722    In that regard, it should be borne in mind that point 27 of the 2006 Guidelines provides that, in setting the amount of the fine, the Commission may take into account circumstances that result in an increase or decrease in the basic amount, on the basis of an overall assessment which takes account of all the relevant circumstances. Point 29 of those guidelines provides that the basic amount of the fine may be reduced where the Commission finds that mitigating circumstances exist. That point contains an indicative and non-exhaustive list of several types of mitigating circumstances which may be taken into account, including the substantially limited nature of the involvement of the undertaking in question in the infringement.
723    In recitals 1246 to 1290 of the contested decision, the Commission examined the existence of mitigating circumstances. In particular, as stated in paragraph 717 above, in recitals 1258 and 1259 of that decision, it granted the applicants a reduction of 10% in the basic amount of the fine on account of their ‘limited participation in the infringement’.
724    By contrast, in recital 1258 of the contested decision, the Commission rejected the applicants’ argument that they played an allegedly passive role in the single and continuous infringement.
725    The applicants claim that those assessments are vitiated by three errors. The first relates, in essence, to the peripheral nature of their participation in the cartel at issue, the second to the limited number of contacts which they had with other carriers and, the third, to the fact that they directly participated in only one of the three elements of the single and continuous infringement.
726    It is appropriate to examine the first and second alleged errors together before addressing the third.
(1)    The peripheral nature of the applicants’ participation in the cartel at issue and the number of contacts they had with other carriers
727    The applicants complain that the Commission failed to take account of the fact that the second applicant operated even further at the periphery of the cartel than Air Canada and SAS, whose roles were more active and central. The second applicant never played any role in the organisation or coordination of the single and continuous infringement. Its role was principally concerned with the initial implementation of the FSC in 2003 and was limited to contacts with Lufthansa, which was its partner in a joint venture. Subsequently, the second applicant’s contacts were primarily passive and consisted of receiving press releases from Lufthansa. Conversely, the conduct of SAS and Air Canada was intended to coordinate prices in the freight sector and not merely to implement the FSC. Both also participated in various meetings, telephone calls and email exchanges. SAS even initiated coordination with the introduction of the FSC in 1999 by sending an email to competitors.
728    The applicants also complain that the Commission failed to take account of the fact that the contacts in which the second applicant participated were fewer and less frequent than those in which Air Canada and SAS had participated. Thus, those contacts concerned the implementation of its FSC, introduced in 2003, were few in number, were maintained almost exclusively with Lufthansa and took the form primarily of the forwarding of Lufthansa’s public announcements. Conversely, Air Canada and SAS participated in numerous contacts, which took various forms, with their competitors.
729    The Commission replies that it does not accept that playing a passive role is a mitigating circumstance. If it had granted an additional reduction to the applicants on that basis, it would have been open to criticism for not having complied with the 2006 Guidelines. It adds that the applicants cannot describe their participation in the single and continuous infringement as ‘generally passive’. The applicants asked Lufthansa on several occasions for information on the FSC.
730    It should be noted that among the grounds which the Commission set out in recital 1258 of the contested decision to conclude that the applicants’ participation in the single and continuous infringement was limited is the fact that, like SAS and Air Canada, they operated ‘on the periphery of the cartel’ at issue and ‘entered into a limited number of contacts with other carriers’.
731    It is apparent, however, from the contested decision that the nature of the applicants’ involvement in the single and continuous infringement was not comparable to that of Air Canada and SAS’s involvement in the infringement. First of all, it is common ground that the applicants had contacts ‘primarily’ with Lufthansa (see paragraph 470 above). It is true that the Commission maintains that that was also the case with Air Canada and SAS. It should be noted, however, that the latter two had contacts with a greater number of carriers than the applicants, including in the context of professional associations or alliances or large multilateral meetings (recitals 719, 720, 791 and 792 of that decision).
732    Next, it is apparent from recitals 719, 720, 767, 791 and 792 of the contested decision that the Commission found against the applicants only about 30 contacts at issue, compared to approximately 40 such contacts against Air Canada and around 50 against SAS.
733    Lastly, unlike SAS (recital 791 of the contested decision), the applicants did not initiate the coordination on the introduction of the FSC. It was only from 22 July 2005 that the Commission succeeded in establishing their participation in the single and continuous infringement.
734    The applicants are therefore justified in maintaining that, for the purposes of the peripheral nature of their participation in the single and continuous infringement, the Commission did not distinguish sufficiently between their conduct, on the one hand, and that of Air Canada and SAS, on the other.
735    The applicants cannot, however, rely on the passive nature of their participation in the single and continuous infringement. It should be borne in mind that, although ‘an exclusively passive or “follow-my-leader” role [of the undertaking concerned] in the infringement’ at issue was expressly mentioned as a possible mitigating circumstance in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3), it is no longer among the mitigating circumstances listed in the 2006 Guidelines. This reflects a deliberate political choice no longer to ‘encourage’ passive conduct by those participating in an infringement of the competition rules (judgment of 12 July 2018, Sumitomo Electric Industries and J-Power Systems v Commission, T‑450/14, not published, EU:T:2018:455, paragraph 114), which falls within the Commission’s discretion in determining and implementing competition policy (see, to that effect, judgment of 9 September 2015, Toshiba v Commission, T‑104/13, EU:T:2015:610, paragraph 207).
736    The fact remains that, in so far as the list set out in point 29 of the 2006 Guidelines was not exhaustive, the exclusively passive or ‘follow-my-leader’ role of an undertaking in the infringement cannot, contrary to the Commission’s contention, be excluded from the circumstances which might lead to a reduction in the basic amount of a fine (judgment of 25 October 2011, Aragonesas Industrias y Energía v Commission, T‑348/08, EU:T:2011:621, paragraph 281).
737    According to the case-law, an ‘exclusively passive or “follow-my-leader”’ role in the infringement implies, by definition, that it adopted a ‘low profile’, that is to say, that it did not actively participate in the creation of any anticompetitive agreements or concerted practices. Among the factors capable of demonstrating that the undertaking concerned played such a role are circumstances, inter alia, where its participation in the collusion is significantly more sporadic than that of the ‘ordinary’ members of the cartel; another is where a representative of another undertaking which has participated in the infringement makes an express declaration regarding the role played by that undertaking in the cartel (see judgment of 9 July 2003, Cheil Jedang v Commission, T‑220/00, EU:T:2003:193, paragraphs 167 and 168 and the case-law cited).
738    By contrast, the fact that an undertaking limited itself to receiving information passed on unilaterally by a competitor, without expressing any reservations or objections, cannot play any part in establishing that that undertaking had a passive role within the cartel (see, to that effect, judgment of 15 March 2000, Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraph 1849).
739    In the present case, the applicants participated, albeit passively, in a not inconsiderable number of anticompetitive contacts, without ever expressing any reservations or objections, as is apparent inter alia from recitals 410, 474, 487, 516, 538 and 893 of the contested decision, and sometimes even took the initiative (see, inter alia, recitals 474 and 538 of that decision) and actively participated in that framework in anticompetitive discussions or exchanges of information (see, inter alia, recitals 516 and 538 of that decision). In so doing, the applicants gave the impression to their competitors that they were taking part in the cartel at issue and thus contributed to encouraging it.
740    The fact that other carriers at issue played a more active role in the single and continuous infringement than the applicants does not mean that the applicants had an exclusively passive or follow-my-leader role.
741    The Commission cannot therefore be criticised for not finding that the applicants’ role in the single and continuous infringement was exclusively passive.
742    The present complaints must therefore be upheld only in so far as it is alleged that the Commission did not, for the purposes of assessing the peripheral nature of their participation in the single and continuous infringement and the number of contacts with other carriers, sufficiently differentiate the applicants’ conduct from that of Air Canada and SAS.
(2)    The fact that the applicants directly participated in only one of the three elements of the infringement
743    The applicants complain that the Commission disregarded the fact that, unlike Air Canada and SAS, the second applicant had directly participated in only one of the three elements of the single and continuous infringement, namely the FSC element. The applicants add that, in the event that that fact should not result in the calculation of a lower basic amount of the fine, it would be appropriate to apply a larger reduction to that amount, pursuant to point 29 of the 2006 Guidelines.
744    The Commission disputes the applicants’ line of argument. It submits that the fact that the second applicant’s contacts were limited to the FSC does not in any way diminish the gravity of its participation in the single and continuous infringement.
745    According to the case-law, an undertaking whose liability is established in relation to several branches of a cartel contributes more to the effectiveness and the seriousness of the cartel than an offender involved in only one branch of it. Thus, the first undertaking commits a more serious infringement than the second (see judgment of 15 July 2015, Trafilerie Meridionali v Commission, T‑422/10, EU:T:2015:512, paragraph 103 and the case-law cited).
746    In recital 1258 of the contested decision, the Commission, for the purposes of assessing the limited nature of the participation in the single and continuous infringement of the second applicant, SAS and Air Canada, took account of the fact that they ‘did not participate in all elements of the infringement’.
747    The degree of participation in the single and continuous infringement by the second applicant, SAS and Air Canada is described in recitals 882 and 883 of the contested decision. In those recitals, the Commission found that the applicants and Air Canada had participated directly in only one or two of the three elements of the single and continuous infringement, but could also be held liable for those elements in which they had not directly participated, on the ground that they were aware of them or could reasonably have foreseen them and were prepared to accept the risk.
748    In the context of the examination of the first plea, it has been held that the Commission erred in finding that the applicants had knowledge, proven or presumed, of the elements of the single and continuous infringement relating to the SSC and the refusal to pay commission and could therefore be held liable for it. Unlike Air Canada and SAS, the applicants could therefore be held liable for only one of the elements of that infringement. In accordance with the case-law referred to in paragraph 745 above, the Commission should therefore have recognised that the applicants had contributed to the effectiveness and seriousness of the cartel at issue to a lesser extent than Air Canada and SAS and had therefore committed a less serious infringement than Air Canada and SAS.
749    It must therefore be concluded that the Commission vitiated the contested decision by illegality by not granting the applicants a reduction of more than 10% in the basic amount of the fine on account of their limited participation in the single and continuous infringement.
750    Article 3(i) of the contested decision must therefore be annulled in so far as the Commission did not grant the applicants a reduction in the basic amount of the fine of more than 10% for their limited participation in that infringement.
751    In the light of all the foregoing considerations, the Court must uphold the first part of the third plea in law, the second plea in law in so far as the Commission erred in holding the applicants liable for the single and continuous infringement, in its element relating to the FSC, before 22 July 2005, the first plea in law and the fourth part of the seventh plea. Consequently, Article 1(1)(i) and (j), (3)(i) and (j) and (4)(i) and (j) of the contested decision must be annulled, as must Article 1(2)(i) and (j) of that decision, in so far as it imputes to the applicants that infringement, first, in its elements relating to the SSC and the refusal to pay commission and, second, in its element relating to the FSC before 22 July 2005. Article 3(i) of that decision must also be annulled on the ground that the Commission did not grant the applicants a reduction of more than 10% in the basic amount of the fine on account of their limited participation in that infringement.
752    By contrast, it cannot be held that those illegalities are such as to entail the annulment of the contested decision in its entirety. Although the Commission, first, infringed the rules on limitation by penalising the applicants for that infringement in respect of intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes and, second, committed errors of assessment by imputing to the applicant the infringement at issue in its elements relating to the SSC and the refusal to pay commission and in its element relating to the FSC before 22 July 2005, it must be held that it has not been established in the context of the present action that the Commission erred in finding that it had participated in the infringement at issue.
753    The other heads of claim seeking annulment must be dismissed.
B.      The claim for a reduction of the amount of the fine imposed on the applicants
754    The applicants ask the Court, in essence, to exercise its unlimited jurisdiction to reduce the amount of the fine imposed on them in the event that it finds that there is no need to annul the contested decision in so far as they are concerned.
755    As a preliminary point, it should be noted that the applicants have failed to identify expressly the complaints which they intend to raise in support of the present claim. However, in the introductory paragraph of the seventh plea, they stated that they were seeking a reduction of the fine imposed on them ‘[to] the extent that the Court does not find that the [contested decision] should be annulled’. It follows that the applicants rely, in support of this head of claim, on arguments which are essentially identical to those which they put forward in support of the seventh plea in their claim for annulment. In addition to those arguments, the applicants rely, in their replies to the measures of organisation of procedure of the Court, on an argument concerning the sales made on non-EU EEA‑Switzerland routes.
756    The first argument relied on by the applicants in support of this claim concerns, in essence, the calculation of the value of sales. According to that argument, amounts other than the revenue generated by the surcharges and the costs avoided by the refusal to pay commission should be excluded from the value of sales.
757    The second to sixth arguments relied on by the applicants in support of this claim concern, in essence, the gravity factor and the additional amount:
–        by their second argument, in response to the measures of organisation of procedure of the Court, the applicants claim that the exclusion from the geographical scope of the single and continuous infringement of non-EU EEA‑Switzerland routes is such as to justify a reduction of the gravity factor and the additional amount;
–        by their third argument, the applicants claim that the fact that the single and continuous infringement did not cover the full price of freight services is such as to justify a reduction in the gravity factor and the additional amount;
–        by their fourth argument, the applicants claim that account should be taken of the limited combined worldwide market shares of the incriminated carriers;
–        by their fifth argument, the applicants claim that account should be taken of the regulatory regimes of third countries;
–        by their sixth argument, the applicants claim that it is necessary to take into account the very varying degrees of involvement of the incriminated carriers in the single and continuous infringement.
758    The seventh argument on which the applicants rely in support of this claim concerns, in essence, the mitigating circumstances. According to that argument, the second applicant’s participation in the single and continuous infringement was even more limited than that of Air Canada and SAS. They played a more active and central role than the second applicant and, unlike the latter, directly participated in more than one element of the single and continuous infringement.
759    The Commission submits that those claims should be rejected.
760    In EU competition law, the review of legality is supplemented by the unlimited jurisdiction which the Courts of the European Union are afforded by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the Courts of the European Union, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the amount of the fine or penalty payment imposed (see judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 63 and the case-law cited).
761    That exercise involves, in accordance with Article 23(3) of Regulation No 1/2003, taking into consideration, with respect to each undertaking sanctioned, the seriousness and duration of the infringement at issue, in compliance with the principles of, inter alia, adequate reasoning, proportionality, the individualisation of penalties and equal treatment, and without the Courts of the European Union being bound by the indicative rules defined by the Commission in its guidelines (see, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 90). It must, however, be pointed out that the exercise of unlimited jurisdiction provided for in Article 261 TFEU and Article 31 of Regulation No 1/2003 does not amount to a review of the Court’s own motion, and that proceedings before the Courts of the European Union are inter partes. With the exception of pleas involving matters of public policy which the Courts are required to raise of their own motion, it is therefore for the applicant to raise pleas in law against the decision at issue and to adduce evidence in support of those pleas (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 64).
762    It is thus for the applicant to identify the impugned elements of the contested decision, to formulate grounds of challenge in that regard and to adduce evidence – direct or circumstantial – to demonstrate that its objections are well founded (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 65).
763    In order to satisfy the requirements of Article 47 of the Charter when conducting a review in the exercise of their unlimited jurisdiction with regard to the fine, the Courts of the European Union are, for their part, bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement (see judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 75 and the case-law cited; judgment of 26 January 2017, Villeroy & Boch Austria v Commission, C‑626/13 P, EU:C:2017:54, paragraph 82).
764    Lastly, in order to determine the amount of the fine, it is for the Courts of the European Union to assess for themselves the circumstances of the case and the nature of the infringement in question (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 89) and to take into account all of the factual circumstances (see, to that effect, judgment of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 86), including, where appropriate, additional information which is not mentioned in the Commission decision imposing the fine (see, to that effect, judgments of 16 November 2000, Stora Kopparbergs Bergslags v Commission, C‑286/98 P, EU:C:2000:630, paragraph 57, and of 12 July 2011, Fuji Electric v Commission, T‑132/07, EU:T:2011:344, paragraph 209).
765    In the present case, it is for the Court, in the exercise of its unlimited jurisdiction, to determine, in the light of the arguments put forward by the parties in support of this claim, the amount of the fine which it considers most appropriate, having regard in particular to the findings made when examining the pleas raised in support of the claim for annulment and the plea raised of the Court’s own motion, and taking into account all the relevant factual circumstances.
766    The Court considers that it is not appropriate, in order to determine the amount of the fine to be imposed on the applicants, to depart from the method of calculation followed by the Commission in the contested decision, which it has not previously determined to be vitiated by illegality, as follows from the examination of the seventh plea above. Although it is for the Court, in the exercise of its unlimited jurisdiction, to assess for itself the circumstances of the case and the nature of the infringement in question in order to determine the amount of the fine, the exercise of unlimited jurisdiction cannot result, when the amount of the fines to be imposed is determined, in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 101(1) TFEU, Article 53 of the EEA Agreement and Article 8 of the EC‑Switzerland Air Transport Agreement. Accordingly, the guidance which can be drawn from the Guidelines is, as a general rule, capable of guiding the Courts of the European Union in their exercise of that jurisdiction where the Commission has applied those guidelines for the purposes of calculating the fines imposed on the other undertakings penalised by the decision which those Courts are asked to examine (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 80 and the case-law cited).
767    In those circumstances, first of all, it should be noted that the total value of the sales made by the applicants in 2005 was EUR 62 604 661. That value does not include any revenue from non-EU EEA‑Switzerland routes, in respect of which the Court held in paragraphs 77 to 102 above that they did not fall within the scope of the single and continuous infringement. It follows from the applicants’ replies to the measures of organisation of procedure of the Court that they did not achieve any turnover on those routes during 2005.
768    Nor does the value of sales used in the contested decision include revenue from intra-EEA routes, EU‑Switzerland routes and non-EU EEA‑third country routes, in respect of which the Court has held in paragraphs 104 to 141 above that the applicants could not be held liable for the single and continuous infringement. The applicants did not achieve any turnover on those routes in 2005.
769    By contrast, the turnover achieved on EU‑third country routes in 2005 must be included in the value of sales, although the applicants’ participation in the single and continuous infringement cannot be established before 22 July 2005 and concerns only the FSC. In accordance with point 13 of the 2006 Guidelines, account must be taken of the sales made by the applicants during the last full business year of the single and continuous infringement, namely 2005.
770    Furthermore, it must be observed that the first argument, which relates, in essence, to the inclusion of the full price of freight services in the value of sales, refers to the second complaint of the first part of the seventh plea raised in support of the claim for annulment. The Court rejected that complaint in paragraphs 675 to 698 above and nothing in the arguments put forward by the applicants in support of that complaint makes it possible to consider that the inclusion in the value of sales of the full price of freight services was such as to result in an inappropriate value of sales being used. On the contrary, excluding the price elements of freight services other than surcharges from the value of sales would have the effect of artificially minimising the economic importance of the single and continuous infringement.
771    Next, it should be noted that, for the reasons set out in recitals 1198 to 1212 of the contested decision, the single and continuous infringement merits a gravity factor of 16%.
772    The second to sixth arguments do not demonstrate the contrary. The second argument presupposes that the Court upheld the plea raised of its own motion. As is apparent from paragraphs 77 to 102 above, the Court rejected that plea in its entirety. As for the third to sixth arguments, they refer, in essence, to the first to third parts of the seventh plea in law which the applicants raised in support of their claim for annulment. However, the Court rejected those parts of that plea in paragraphs 635 to 720 above and there is no reason to consider that those arguments justify a gravity factor lower than 16%.
773    As regards the additional amount, for the same reasons as those set out in recitals 1198 to 1212 of the contested decision and in the light of the considerations set out in paragraphs 644 to 646 above, the Court considers that an additional amount of 16% is appropriate.
774    Furthermore, it must be observed that, since the applicants’ participation in the single and continuous infringement cannot be legally established as regards intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes, the multipliers used in recitals 1214, 1216 and 1217 of the contested decision cannot be taken into account for the purposes of calculating the amount of the fine.
775    However, it must be borne in mind that, in the absence of turnover achieved by the applicants on intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes and taking account of the method used by the Commission in the contested decision consisting of allocating, to each category of routes concerned, a specific value of sales calculated on the basis of the turnover achieved by the undertaking on that category of routes (see paragraph 52 above), the value of sales used, respectively, for intra-EEA routes, non-EU EEA‑third country routes and for EU‑Switzerland routes is, so far as the applicants are concerned, zero. Accordingly, the multiplier in respect of the duration of the applicants’ involvement in the single and continuous infringement is to be set, as regards intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes, against a base of zero. Consequently, the fact that the Court, in not departing from the method described, nevertheless refrained from taking account of the multipliers set out in recitals 1214, 1216 and 1217 of the contested decision is not such as to reduce the amount of the fine imposed on the applicants. In other words, by the method which the Commission used to calculate the amount of the fine imposed on the applicants, the applicants have already largely avoided the imposition of a fine on the basis of their liability for the single and continuous infringement in so far as it concerns intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes.
776    As for the multiplier in respect of EU-third country routes, it must be set at 6/12. The applicants’ participation in the single and continuous infringement in so far as concerns those routes has been legally established only for a period of six months (see paragraphs 580 to 582 above).
777    The basic amount of the fine must therefore be set at EUR 15 025 118.
778    Therefore, the basic amount of the fine after application of the general 50% reduction, which applies only to the basic amount in so far as it relates to EU‑third country routes (see recital 1241 of the contested decision), which the applicants have not disputed in the context of the claim for annulment and which is not inappropriate, must be fixed, after rounding down, at EUR 7 500 000. In that regard, the Court considers it appropriate to round that basic amount down to the two first digits, unless this leads to a reduction of more than 2% of the amount before rounding, in which case that amount is rounded down to the first three digits. That method is objective, enables all the incriminated carriers who have brought an action against the contested decision to benefit from a reduction and avoids unequal treatment (see, to that effect, judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 166).
779    Finally, as regards the adjustments to the basic amount of the fine, it should be recalled that the applicants benefited from the general 15% reduction, the appropriateness of which is not disputed.
780    Furthermore, as regards the seventh argument on which the applicants rely in support of this claim, it should be borne in mind that, in recitals 1258 and 1259 of the contested decision, the Commission granted the applicants, SAS and Air Canada a 10% reduction in the basic amount of the fine on the ground that they ‘operated on the periphery of the cartel, entered into a limited number of contacts with other carriers, and … did not participate in all elements of the [single and continuous] infringement’. It should be borne in mind, however, that the applicants operated even more on the periphery of the cartel at issue than Air Canada and SAS, entered into even fewer contacts with other carriers than them and could be held liable for only one of the three elements of the single and continuous infringement (see paragraphs 721 to 749 above).
781    It should also be borne in mind that the single and continuous infringement could not be imputed to the applicants in so far as it concerns the intra-EEA routes, non-EU EEA‑third country routes and EU‑Switzerland routes (paragraphs 134 to 139 above).
782    It must therefore be held that the applicants’ participation in the single and continuous infringement was significantly more limited than the Commission found for the purpose of examining mitigating circumstances and justifies a reduction in the amount of the fine significantly above 10%.
783    In those circumstances, the Court considers that it is appropriate to grant the applicants a reduction of 56% of the amount of the fine on account of their limited participation in the single and continuous infringement, that level of reduction taking account of the specific features of the case referred to in paragraph 775 above.
784    In addition, it must be held that the 20% reduction granted to the applicants under the leniency programme remains appropriate.
785    In the light of all the foregoing considerations, the amount of the fine imposed on the applicants must be calculated as follows: first, the basic amount is determined by applying, in view of the gravity of the single and continuous infringement, a percentage of 16% to the value of sales made by the applicants in 2005 on EU‑third country routes, then, in respect of the duration of the infringement, a multiplier 6⁄12, and, lastly, an additional amount of 16%, resulting in an intermediate amount of EUR 15 025 118. After applying the general 50% reduction, that amount, rounded down, must be set at EUR 7 500 000. Next, after applying the general 15% reduction and an additional reduction of 56% on account of the applicants’ limited involvement in the single and continuous infringement, that amount must be set at EUR 2 805 000. Lastly, the latter amount must be reduced by 20% under the leniency programme, which results in a fine of a final amount of EUR 2 244 000.
IV.    Costs
786    Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order each party to bear its own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.
787    In the present case, the applicants have been successful in respect of the essential aspects of their claims. In those circumstances, it is a fair assessment of the circumstances of the case to order the Commission to pay the costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber, Extended Composition)
hereby:
1.      Annuls Article 1(1)(i) and(j),(3)(i) and (j), and (4)(i) and (j) 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);
2.      Annuls Article 1(2)(i) and (j) of that decision in so far as it finds that Latam Airlines Group SA and Lan Cargo SA participated, first, in the elements of the single and continuous infringement relating to the security surcharge and the refusal to pay commission and, second, in the element of the single and continuous infringement relating to the fuel surcharge before 22 July 2005;
3.      Annuls Article 3(i) of that decision;
4.      Sets the fine imposed jointly and severally on Latam Airlines Group and Lan Cargo at EUR 2 244 000;
5.      Dismisses the action as to the remainder;
6.      Orders the European Commission to pay the costs.
Kanninen
Schwarcz
Iliopoulos
Spielmann
Reine
Delivered in open court in Luxembourg on 30 March 2022.
E. Coulon
H. Kanninen
Registrar
President
Table of contents
I. Background to the dispute
A. Administrative procedure
B. The Decision of 9 November 2010
C. Action challenging the Decision of 9 November 2010 before the Court
D. The contested decision
II. Procedure and forms of order sought
III. Law
A. The claim for annulment
1. The plea, raised of the Court’s own motion, alleging lack of jurisdiction on the part of the Commission under the ECSwitzerland Air Transport Agreement to find and penalise an infringement of Article 53 of the EEA Agreement on non-EU EEASwitzerland routes
2. The third plea in law, alleging errors in the imputation to the applicants of the single and continuous infringement on intra-EEA routes, non-EU EEAthird country routes and EUSwitzerland routes
(a) The first part of the plea, alleging the expiry of the limitation period
(b) The second part of the plea, alleging a lack of jurisdiction and infringements of the obligation to state reasons and of the principles ne bis in idem and ‘international comity’
(1) The first complaint
(2) The second complaint
(3) The third complaint
(c) The third part of the plea, alleging a breach of the principle ne bis in idem
3. The sixth plea in law, alleging a breach of the rights of the defence and failure to state reasons
(a) The first part, alleging an infringement of the applicants’ right to be heard with respect to certain findings and certain documents relied on against them in the contested decision
(1) The applicable principles
(2) The first complaint, alleging an infringement of the right to be heard as regards the second applicant’s awareness of the elements of the single and continuous infringement relating to the SSC and the refusal to pay commission
(3) The second complaint, alleging an infringement of the right to be heard as regards the arguments supporting the finding of a worldwide cartel
(4) The third complaint, alleging an infringement of the right to be heard as to the importance of certain items of evidence relied on against the applicants in the contested decision
(i) The second applicant’s internal email of 22 August 2005
(ii) The second applicant’s internal email of 11 February 2006
(b) The second part of the plea, alleging discrepancies between the grounds of the contested decision and its operative part
(c) The third part of the plea, alleging a breach of the obligation to state reasons and of the right to be heard as regards the abandonment of certain objections set out in the Statement of Objections
4. The fourth plea in law, alleging errors of fact and law and a failure to state reasons in connection with the finding of a worldwide cartel
(a) The first part of the plea, alleging a lack of evidence of the worldwide scope of the cartel at issue
(b) The second part of the plea, alleging, in essence, an error in the assessment of the scope of the single and continuous infringement and breach of the obligation to state reasons
(1) Hong Kong
(2) Japan
(3) Thailand
(4) Other third countries
(5) Dubai
(c) The third part of the plea, alleging a lack of jurisdiction and breach of the duty to state reasons in connection with the geographical scope of the single and continuous infringement
(d) The fourth part of the plea, alleging a contradiction between the grounds and the operative part of the contested decision and manifest error of assessment as regards the nature and scope of the single and continuous infringement
5. The fifth plea in law, alleging errors of fact and law and a breach of the duty to state reasons in connection with the finding of a single and continuous infringement
(a) The first part of the plea, alleging a failure to demonstrate a single anticompetitive aim
(b) The second part of the plea, alleging that the conduct in question did not relate to a single service
(c) The third part of the plea, alleging an error in the Commission’s identification of a group of undertakings with a common interest in so far as concerns the three elements of the single and continuous infringement and an error in the conclusions which the Commission draws
(d) The fourth part of the plea, alleging a failure to demonstrate that the infringement had a single and continuous nature
(e) The fifth part of the plea, alleging a failure to demonstrate that discussions were held in parallel concerning the various elements of the single and continuous infringement
(f) The sixth part of the plea, alleging a failure to demonstrate that the refusal to pay commission was anticompetitive and a failure to carry out an assessment under Article 101(3) TFEU
6. The second plea in law, alleging errors of law and of fact in the finding that the second applicant participated in the single and continuous infringement, in so far as it relates to the FSC
(a) The evidence in the first category at issue
(1) The ‘admissions’ from the applicants’ oral statements
(2) The ‘admissions’ in the applicants’ reply to the Statement of Objections
(b) The evidence in the third category at issue
(1) The announcements of an increase in the FSC sent to the second applicant and to other carriers
(2) The second applicant’s internal email of 22 August 2005
(3) The meeting of 21 September 2005 between the second applicant and Lufthansa
(c) The evidence in the fourth category at issue
(d) The evidence in the fifth category at issue
(e) The overall assessment of the body of evidence
7. The first plea in law, alleging errors of law and fact in the finding that the second applicant participated in the single and continuous infringement in so far as it relates to the SSC and the refusal to pay commission
(a) The first part, alleging errors in the finding that the second applicant’s participated in the single and continuous infringement in so far as it relates to the refusal to pay commission
(b) The second part of the plea, alleging errors in establishing the second applicant’s participation in the single and continuous infringement, as regards the SSC
(c) Conclusion as regards the first plea in law
8. The seventh plea in law, alleging errors of law and fact and a failure to state reasons in connection with the calculation of the fine
(a) The first part of the plea, alleging an error in the assessment of the gravity of the single and continuous infringement and a failure to state reasons
(1) The gravity factor and the additional amount
(2) The value of sales
(b) The second part of the plea, alleging a breach of the principles of equal treatment, proportionality and fairness, in that the Commission failed to have regard to relevant regulatory measures and the limited combined market share of the incriminated carriers
(c) The third part of the plea, alleging an error of fact and law, a failure to state reasons and breach of the principles of equal treatment and individual liability in the calculation of the basic amount of the fine
(d) The fourth part of the plea, alleging an error of fact and law, a failure to state reasons and breach of the principles of equal treatment and individual liability in the determination of the reduction in the fine on account of mitigating circumstances
(1) The peripheral nature of the applicants’ participation in the cartel at issue and the number of contacts they had with other carriers
(2) The fact that the applicants directly participated in only one of the three elements of the infringement
B. The claim for a reduction of the amount of the fine imposed on the applicants
IV. Costs
*      Language of the case: English.