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 Switzerland on Air Transport – Coordination of elements of the price of air freight services (fuel surcharge, security surcharge, payment of commission on surcharges) – Exchange of information – Territorial jurisdiction of the Commission – Single and continuous infringement – Equal treatment – Obligation to state reasons – Amount of the fine – Value of sales – Gravity of the infringement – Extenuating circumstances – Anticompetitive conduct encouraged by the national authorities – Proportionality – Unlimited jurisdiction)
In Case T‑325/17,
Koninklijke Luchtvaart Maatschappij NV, established in Amstelveen (Netherlands), represented by M. Smeets, lawyer,
applicant,
v
European Commission, represented by A. Dawes and C. Vollrath, acting as Agents, and by B. Doherty, Barrister,
defendant,
APPLICATION under 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 applicant and, in the alternative, for the partial annulment of the decision and a reduction in the fine imposed on the applicant,
THE GENERAL COURT (Fourth Chamber, Extended Composition),
composed of H. Kanninen (Rapporteur), President, J. Schwarcz, C. Iliopoulos, D. Spielmann and I. Reine, Judges,
Registrar: S. Bukšek Tomac, Administrator,
having regard to the written part of the procedure and further to the hearing on 2 July 2019,
gives the following
Judgment
I.      Background to the dispute
1        The applicant, Koninklijke Luchtvaart Maatschappij NV, is an air transport company. It operates in the market for airfreight services (‘freight’) through its KLM Cargo division.
2        In the freight sector, airlines provide for the carriage of cargo by air (‘the carriers’). As a general rule, carriers supply freight services to freight forwarders, who arrange the transport of that cargo on behalf of shippers. In return, those freight forwarders pay those carriers a price consisting, on the one hand, of rates calculated on a per kilogram basis and 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: (i) those which exclusively operate dedicated freighter airplanes, (ii) those with cargo capacity on passenger flights, (iii) those with both dedicated freighter airplanes and with cargo capacity on passenger flights (combination airlines) and (iv) 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, in particular, 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 a number of 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 applicant, 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 applicant (‘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.      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’);
–        the applicant;
–        British Airways plc;
–        Cargolux Airlines International SA (‘Cargolux’);
–        Cathay Pacific Airways Ltd (‘CPA’);
–        Japan Airlines Corp.;
–        Japan Airlines;
–        Lan Airlines SA;
–        Lan Cargo SA;
–        Lufthansa Cargo;
–        Lufthansa;
–        Swiss;
–        Martinair Holland NV (‘Martinair’);
–        Qantas Airways Ltd;
–        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 related to the applicant, read as follows:
‘Article 1
The following undertakings infringed Article 101 of the TFEU and Article 53 of the EEA Agreement by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports within the EEA, for the following periods:
…
(c)      [the applicant] from 21 December 1999 until 14 February 2006;
…
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 [freight] services on routes between airports within the European Union and airports outside the EEA, for the following periods:
…
(d)      [the applicant] from 1 May 2004 until 14 February 2006;
…
Article 3
The following undertakings infringed Article 53 of the EEA Agreement by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and third countries, for the following periods:
…
(d)      [the applicant] from 19 May 2005 until 14 February 2006;
…
Article 4
The following undertakings infringed Article 8 of the [EC-Switzerland Air Transport Agreement] by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports within the European Union and airports in Switzerland, for the following periods:
…
(c)      [the applicant] from 1 June 2002 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:
…
(c)      [the applicant]: EUR 2 720 000;
(d)      [the applicant] and [AF-KLM] jointly and severally: EUR 124 440 000;
…
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 Registry of the General Court on 24 January 2011, the applicant brought an action seeking annulment of the Decision of 9 November 2010 in so far as it concerned the applicant and, in the alternative, the reduction of the amount of the fine imposed on it. The other carriers incriminated in the Decision of 9 November 2010, with the exception of Qantas Airways, 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 the Decision of 9 November 2010, in whole or in part, in so far as it concerned Air Canada, the applicant, Japan Airlines and Japan Airlines Corp., CPA, Cargolux, Latam Airlines Group SA (formerly Lan Airlines) and Lan Cargo, SAC and SIA, Lufthansa, Lufthansa Cargo and Swiss, British Airways, SAS Cargo, SAS Consortium and SAS, AF-KLM, AF and Martinair, respectively. The Court found 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 only to the carriers which, as regards the routes mentioned in Articles 1 to 4 of that 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 that 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 interpretations, the internal contradictions of that decision were likely to undermine the applicant’s 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 applicant 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 applicant had not been able to understand the line of reasoning that had led the Commission to find it liable for an infringement, including in respect of routes which it did not operate within the parameters defined by each article of the Decision of 9 November 2010.
D.      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 the latter 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 on 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 applicant, 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;
–        the applicant;
–        British Airways;
–        Cargolux;
–        CPA;
–        Japan Airlines;
–        Latam Airlines Group;
–        Lan Cargo;
–        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 for 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 carriers 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, and 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 carrier representatives 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 those relied on against the applicant is set out in recitals 731 to 736 of that decision.
35      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 to 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, ‘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’.
36      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 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), were of 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).
37      In recital 881 of the contested decision, the Commission added that ‘the majority of the parties’, including the applicant, were involved in all three elements of the single infringement.
38      Third, in recital 884 of the contested decision, the Commission concluded that the infringement at issue was continuous.
39      Fourth, 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.
40      Fifth, in recitals 972 to 1021 of the contested decision, the Commission examined the regulatory systems in place in seven third countries, which several of the incriminated carriers maintained had required them to collude on surcharges, thereby impeding the application of the relevant competition rules. The Commission considered that those carriers had failed to prove that they had acted under duress from those third countries.
41      Sixth, 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 of the EEA Agreement and between Contracting Parties to the EC-Switzerland Air Transport Agreement.
42      Seventh, 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, Article 101 TFEU to agreements and practices prior to 1 May 2004 concerning routes between airports within the European Union and airports outside the EEA (‘EU-third country routes’); next, Article 53 of the EEA Agreement to agreements and practices prior to 19 May 2005 concerning EU-third country routes and routes between airports in countries that are Contracting Parties of the EEA Agreement but are not EU Member States and airports in third countries (‘non-EU EEA-third country routes’ and, 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 prior to 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’.
43      Second, 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 had exceeded the limits of its territorial jurisdiction under the rules of public international law by finding and penalising an infringement of those two provisions on routes from third countries to the EEA (‘inbound routes’) and, as regards freight services offered on those routes, ‘inbound freight services’). 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).’
44      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, anticompetitive 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 anticompetitive 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.’
45      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.
46      In so far as the applicant is concerned, the Commission found that the duration of the infringement was from 21 December 1999 to 14 February 2006.
47      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.
48      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 any 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’).
49      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 degree of gravity of the infringement, multiplied by the number of years of its participation in the infringement, plus an additional amount of between 15% and 25% of the value of sales (‘the additional amount’).
50      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 to the European Union of new Member States in 2004.
51      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 high on 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%.
52      In recitals 1214 to 1217 of the contested decision, the Commission determined the duration of the applicant’s participation in the single and continuous infringement as follows, in relation to each of the various categories of routes concerned:
–        in so far as concerned intra-EEA routes, from 21 December 1999 to 14 February 2006, equating to six years and one month and giving rise to a multiplier of 61⁄12;
–        in so far as 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 19⁄12;
–        in so far as concerned EU-Switzerland routes, from 1 June 2002 to 14 February 2006, equating to three years and eight months and giving rise to a multiplier of 38⁄12;
–        in so far as 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.
53      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 51 above, the additional amount should be set at 16% of the value of sales.
54      Consequently, in recitals 1240 to 1242 of the contested decision, the basic amount to be imposed on the applicant was assessed at EUR 368 000 000 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 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 occur outside that territory, the basic amount of the applicant’s fine was fixed at EUR 187 000 000.
55      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 the basic amount of the fine of 15% (‘the general 15% reduction’) on the ground that certain regulatory regimes had encouraged the cartel at issue.
56      Consequently, in recital 1293 of the contested decision, the Commission set the basic amount of the applicant’s fine, after adjustment, at EUR 158 950 000.
57      In recitals 1323 to 1330 of the contested decision, the Commission took account of AF-KLM’s contribution in the context of its 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 applicant was set at EUR 127 160 000.
58      The operative part of the contested decision, in so far as it relates to the present dispute, reads as follows:
‘Article 1
By coordinating their pricing behaviour in the provision of [freight] 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:
…
(d)      [the applicant] from 21 December 1999 until 14 February 2006;
…
(2)      The following undertakings infringed Article 101 of the TFEU as regards [EU-third country] routes for the following periods:
…
(d)      [the 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:
…
(d)      [the 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:
…
(d)      [the applicant] from 1 June 2002 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:
…
(c)      [the applicant]: EUR 2 720 000;
(d)      [the applicant] and [AF-KLM] jointly and severally: EUR 124 440 000;
…
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 applicant]
…’
II.    Procedure and forms of order sought
59      By application lodged at the Court Registry on 29 May 2017, the applicant brought the present action.
60      The Commission lodged its defence at the Court Registry on 29 September 2017.
61      The applicant lodged its reply at the Court Registry on 2 January 2018.
62      The Commission lodged its rejoinder at the Court Registry on 1 March 2018.
63      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.
64      On 14 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 parties replied within the prescribed period.
65      By letter of 27 June 2019, the parties were invited to submit their observations on the possible joinder of the present case with Case T‑323/17, Martinair v Commission, for the purposes of the oral part of the procedure. The parties replied that they had no objections to such joinder.
66      By decision of 1 July 2019, the present case and Case T‑323/17, Martinair v Commission, were joined for the purposes of the oral part of the procedure.
67      At the hearing on 2 July 2019, the parties presented oral argument and answered the questions put by the Court.
68      By order of 13 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.
69      The parties replied within the prescribed period to a series of questions put by the Court on 15 July 2020, and then submitted observations on their respective replies.
70      By decision of 30 October 2020, the Court again closed the oral part of the procedure.
71      The applicant claims that the Court should:
–        annul the contested decision in its entirety, in so far as it relates to the applicant;
–        in the alternative, annul Article 1(2)(d) and (3)(d) of the contested decision, in so far as the Commission held the applicant liable for an infringement on inbounds routes;
–        annul Article 1, Article 1(1)(d), (2)(d), (3)(d) and (4d) and Article 3(c) and (d) of the contested decision, in so far as the Commission found that the single and continuous infringement included the refusal to pay commission;
–        also in the alternative, reduce the fine imposed on it in Article 3(c) and (d) of the contested decision;
–        order the Commission to pay the costs.
72      The Commission contends, in essence, that the Court should:
–        dismiss the action;
–        alter the amount of the fine imposed on the applicant by withdrawing the benefit of the general 15% reduction, should the Court find that the turnover from the sale of inbound freight services could not be included in the value of sales;
–        order the applicant to pay the costs.
III. Law
73      Before setting out the pleas in law which it formally raises in support of the present action, the applicant submits observations on the giving of effect to the judgment of 16 December 2015, Koninklijke Luchtvaart Maatschappij v Commission (T‑28/11, not published, EU:T:2015:995) by the adoption of the contested decision. The Court considers it appropriate to address those observations (see paragraphs 74 to 89 below) before examining, in particular, the pleas relied upon in support of the claim for annulment (see paragraphs 90 to 378 below) and those relied upon in support of the claims for alteration of the amount of the fine (see paragraphs 379 to 409 below).
A.      The observations on the giving of effect to the judgment of 16 December 2015, Koninklijke Luchtvaart Maatschappij v Commission (Case T‑28/11)
74      As a preliminary point, the applicant makes a number of observations on the giving of effect to the judgment of 16 December 2015, Koninklijke Luchtvaart Maatschappij v Commission (T‑28/11, not published, EU:T:2015:995) through the adoption of the contested decision.
75      The applicant observes that, in the grounds of the contested decision, the Commission does not confine itself to setting out the facts relating to the four sets of routes covered by the single and continuous infringement penalised in the operative part of that decision. According to the applicant, that raises two questions. The first question is how the ‘jurisdictional delineation’ in that operative part can be reconciled with the broader factual descriptions in those grounds, and in particular with the references to a ‘worldwide cartel’. The applicant argues that these grounds indicate that the scope of that decision does not extend to finding infringements of the competition rules other than those which relate to the routes and periods referred to in Article 1 of the contested decision. Unless that decision is to be regarded as contradictory, those references may therefore be understood only as a purely factual description of the conduct of the incriminated carriers, given solely to evidence the single and continuous infringement of narrower geographic scope found in that article. The applicant claims that it is also apparent from the Dutch-language version of the operative part of the contested decision that the expression ‘on a global basis’ (wereldwijd) refers less to the coordination among the addressees of the contested decision than to the ‘provision of freight services’. That wording emphasises that the ‘worldwide’ aspect of the case primarily reflects the fact that the FSC and the SSC were not, in principle, route-specific.
76      The applicant emphasises that the first question is of great importance in connection with actions for damages brought before national courts on the basis of the contested decision (‘actions for damages’). The applicant’s exposure in respect of those actions would increase considerably if it were to be held that the contested decision also covered routes and periods other than those referred to in Article 1 thereof. The assessment of the effect of that decision on those actions falls within the scope of the review which the Court must carry out.
77      The second question is whether, in so far as the operative part of the contested decision no longer makes any distinction between the liability of the addressees concerning routes (or sets of routes) for which they are held liable, the concept of damages based on the existence of a protection price can apply to all routes beyond the specific routes (or sets of routes) referred to in that operative part. On this point, the applicant states that the present action is based on a reading of the contested decision according to which the scope of that decision is strictly limited to the routes and periods which are found, in Article 1 of that operative part, to come within the single and continuous infringement of the competition rules. The applicant submits that that decision and the references to the global scope of the cartel at issue cannot be interpreted as meaning that infringements in connection with other routes or periods may be ascribed to it or that they provide grounds for the award of umbrella damages based on the existence of a protection price in respect of such routes.
78      The Commission replies that the applicant’s observations regarding the giving of effect to the judgment of 16 December 2015, Koninklijke Luchtvaart Maatschappij v Commission (T‑28/11, not published, EU:T:2015:995), are not linked to any plea in law or any legal argument. In its rejoinder, the Commission adds that, in reality, the applicant is seeking to discuss the relationship between the grounds of the contested decision and the operative part thereof, so as to improve its position in actions for damages. However, it is not the task of the General Court, in an annulment action, to interpret a contested act in order to provide guidance to national courts hearing actions for damages. Such national courts can, if necessary, refer a question to the Court of Justice for a preliminary ruling.
79      In that connection, first, in so far as, in its observations on the giving of effect to the judgment of 16 December 2015, Koninklijke Luchtvaart Maatschappij v Commission (T‑28/11, not published, EU:T:2015:995), the applicant sets out its views as to the scope of the contested decision, it should be noted that the applicant does not draw any conclusions from those observations for the purposes of reviewing the lawfulness of the contested decision. It has failed to explain how those observations relate to the pleas and complaints on which it relies in support of its action. The observations in question should therefore be rejected as inadmissible.
80      In any event, the Court cannot, in a declaratory judgment, provide clarification as to the scope of the contested decision. It should be borne in mind that there is no legal remedy in the field of litigation within the European Union which would allow the courts to take a position in this way (see, to that effect, judgments of 15 December 2005, Infront WM v Commission, T‑33/01, EU:T:2005:461, paragraph 171 and the case-law cited, and of 21 March 2012, Fulmen and Mahmoudian v Council, T‑439/10 and T‑440/10, EU:T:2012:142, paragraph 41 and the case-law cited).
81      The applicant’s argument that ‘the impact of the contested decision on [actions for damages] falls within the scope of the judicial review [of the Court]’ does not alter that conclusion. It should be recalled, as the Commission does, that the present proceedings have been brought under Article 263 TFEU, and that the purpose thereof is therefore not to provide the applicant with clarifications that it may consider useful for the purposes of defending itself in actions for damages, but rather solely to review the lawfulness of the contested decision (see, to that effect, order of 25 October 2011, Air France v Commission, T‑63/11, not published, EU:T:2011:629, paragraph 27).
82      Second, in so far as, by its observations on compliance with the judgment of 16 December 2015, Koninklijke Luchtvaart Maatschappij v Commission (T‑28/11, not published, EU:T:2015:995), the applicant relies, in essence, on a contradiction between the grounds of the contested decision and Article 1 of that decision, it should be recalled that the principle of effective judicial protection is a general principle of EU law which is 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 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).
83      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).
84      In the present case, it must be observed at the outset that, contrary to the applicant’s claims, the Commission did not conclude, in the operative part of the contested decision, that there was a worldwide infringement. The reference to the coordination of the incriminated carriers’ ‘pricing behaviour in the provision of [freight] services on a global basis’ in the introductory paragraph of Article 1 of that decision is simply a finding of fact which the Commission classifies in Article 1(1) to (4) as an infringement of the competition rules applicable in respect of those routes which the Commission regarded, for the periods at issue, as falling within the scope of its jurisdiction. These are intra-EEA routes between 7 December 1999 and 14 February 2006 (Article 1(1)), EU-third country routes between 1 May 2004 and 14 February 2006 (Article 1(2)), non-EU EEA-third country routes between 19 May 2005 and 14 February 2006 (Article 1(3)), and EU-Switzerland routes between 1 June 2002 and 14 February 2006 (Article 1(4)).
85      It follows that the operative part of the contested decision is not vitiated either by a contradiction or by a lack of clarity or precision.
86      Since the operative part of the contested decision leaves no room for doubt, it is solely for the sake of completeness that the Court adds that the grounds of the contested decision support that finding. Those grounds thus refer, on the one hand, to an infringement of the competition rules applicable, the geographical scope of which is confined to specific types of route (recitals 1146 and 1187) and, on the other hand, to a ‘worldwide cartel’ (recitals 74, 112, 832 and 1300), a cartel of ‘worldwide nature’ (recital 887) or a cartel ‘implemented globally’ (recital 1046).
87      Recital 1210 of the contested decision does, admittedly, deviate 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 [at issue] 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.’
88      Consequently, far from being inconsistent with the statement of reasons for the contested decision, the finding of the existence of tariff coordination for the provision of freight services worldwide reflects the position expressed by the Commission, throughout the contested decision, on the geographic scope of the cartel at issue.
89      The present observations must therefore, in any event, be rejected.
B.      The claim for annulment
90      The applicant formally raises four pleas in law in support of its claim for annulment. Those pleas allege:
–        first, breach of the ‘prohibition of arbitrariness’, the principle of equal treatment and the obligation to state reasons;
–        second, a lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services;
–        third, a defective statement of reasons and a manifest error of assessment;
–        fourth, infringements of Article 101 TFEU, Article 49 of the Charter and the 2006 Guidelines in setting the amount of the fine.
91      The Court deems it appropriate to examine, in the first place, the second plea; in the second place, the plea raised of the Court’s own motion alleging lack of jurisdiction on the part of the Commission in the light of the EC-Switzerland Air Transport Agreement to find and penalise an infringement on routes between airports in the EEA Contracting Parties not being Member States and airports in Switzerland (‘non-EU EEA-Switzerland routes’); and, lastly, the first, third and fourth pleas in law in turn.
1.      The second plea in law, alleging lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services
92      The present plea, by which the applicant claims that the Commission did not have jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services, consists, in essence, of three parts. The first of these alleges incorrect interpretation of Council Regulation (EC) No 411/2004 of 26 February 2004 repealing Regulation (EEC) No 3975/87 and amending Regulation (EEC) No 3976/87 and Regulation No 1/2003 as regards air transport between the Community and third countries (OJ 2004 L 68, p. 1), the second alleges misapplication of the implementation test, and the third alleges misapplication of the qualified effects test.
(a)    The first part of the plea, alleging incorrect interpretation of Regulation No 411/2004
93      The applicant submits that the Commission’s interpretation of Regulation No 411/2004 according to which it is clear from that regulation that Article 101 TFEU applies to anticompetitive practices relating to flights on inbound and outbound routes is ‘not at all apparent’. According to the applicant, on the one hand, the reference to ‘air transport between [the European Union] and third countries’ in that regulation does not necessarily include flights on inbound routes. On the other hand, and in any event, the Commission may not be granted powers by regulation, but only by the provisions of the FEU Treaty and public international law.
94      The Commission disputes the applicant’s line of argument.
95      As a preliminary point, it should be recalled that Article 103(1) TFEU confers on the Council of the European Union the power to adopt the appropriate regulations or directives to give effect to the principles set out in Articles 101 and 102 TFEU.
96      In the absence of such legislation, Articles 104 and 105 TFEU apply and impose, in essence, the obligation to apply Articles 101 and 102 TFEU on the authorities of the Member States, and limit the Commission’s powers in this area to investigating, on application by a Member State or on its own initiative, and in conjunction with the competent authorities of the Member States which lend their assistance to it, cases of suspected infringement of the principles laid down by those provisions and, where appropriate, proposing appropriate measures to bring them to an end (judgment of 30 April 1986, Asjes and Others, 209/84 to 213/84, EU:C:1986:188, paragraphs 52 to 54 and 58).
97      On 6 February 1962, the Council adopted, on the basis of Article [103 TFEU], Regulation No 17, First Regulation implementing Articles [101] and [102 TFEU] (OJ, English Special Edition 1959-1962, p. 87).
98      However, Regulation No 141 of the Council of 26 November 1962 exempting transport from the application of Council Regulation No 17 (OJ, English Special Edition 1959-1962, p. 291) removed the whole of the transport sector from the scope of Regulation No 17 (judgment of 11 March 1997, Commission v UIC, C‑264/95 P, EU:C:1997:143, paragraph 44). In those circumstances, in the absence of legislation such as that provided for in Article 103(1) TFEU, Articles 104 and 105 TFEU initially continued to apply to air transport (judgment of 30 April 1986, Asjes and Others, 209/84 to 213/84, EU:C:1986:188, paragraphs 51 and 52).
99      The consequence thereof was a division of powers between the Member States and the Commission for the application of Articles 101 and 102 TFEU as described in paragraph 96 above.
100    It was only in 1987 that the Council adopted a regulation on air transport pursuant to Article 103(1) TFEU. This was Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ 1987 L 374, p. 1), which conferred on the Commission the power to apply Articles 101 and 102 TFEU to international air transport between airports within the European Union, to the exclusion of international air transport between the airports of a Member State and those of a third country (judgment of 11 April 1989, Saeed Flugreisen and Silver Line Reisebüro, 66/86, EU:C:1989:140, paragraph 11). The latter remained subject to Articles 104 and 105 TFEU (see, to that effect, judgment of 12 December 2000, Aéroports de Paris v Commission, T‑128/98, EU:T:2000:290, paragraph 55).
101    The entry into force, in 1994, of Protocol 21 to the EEA Agreement on the implementation of competition rules applicable to undertakings (OJ 1994 L 1, p. 181) extended those rules to the implementation of the competition rules laid down in the EEA Agreement, thus precluding the Commission applying Articles 53 and 54 of the EEA Agreement to international air transport between airports of States party to the EEA which are not members of the European Union and those of a third country.
102    Regulation No 1/2003 and Decision of the EEA Joint Committee No 130/2004 of 24 September 2004 amending Annex XIV (Competition), Protocol 21 (on the implementation of the competition rules applicable to undertakings) and Protocol 23 (on cooperation between surveillance authorities) to the EEA Agreement (OJ 2005 L 64, p. 57), which subsequently incorporated that regulation into the EEA Agreement, initially left that scheme intact. Article 32(c) of that regulation provided that the latter ‘[did not] apply to air transport between [European Union] airports and third countries’.
103    Regulation No 411/2004, Article 1 of which repealed Regulation No 3975/87 and Article 3 of which repealed Article 32(c) of Regulation No 1/2003, conferred on the Commission the power to apply Articles 101 and 102 TFEU to EU-third country routes as from 1 May 2004.
104    Decision of the EEA Joint Committee No 40/2005 of 11 March 2005 amending Annex XIII (Transport) and Protocol 21 (on the implementation of competition rules applicable to undertakings) to the EEA Agreement (OJ 2005 L 198, p. 38) incorporated Regulation No 411/2004 into the EEA Agreement, conferring on the Commission the power to apply Articles 53 and 54 of the EEA Agreement to non-EU EEA-third country routes from 19 May 2005.
105    In the present case, the parties disagree, in essence, on whether the scope of Regulation No 411/2004 and Decision of the EEA Joint Committee No 40/2005 extends to inbound freight services.
106    In that connection, first of all, it should be noted that, since Regulation No 411/2004 repealed Regulation No 3975/87 and removed Article 32(c) of Regulation No 1/2003, there is no longer an express legal basis that would be such as to justify that inbound freight services remain excluded from the rules introduced by Regulation No 1/2003 and thus continue to be subject to the rules laid down in Articles 104 and 105 TFEU.
107    Next, there is nothing in the wording or general scheme of Regulation No 411/2004 to suggest that the legislature intended to maintain the exclusion of inbound freight services from the scope of Regulation No 1/2003. On the contrary, both the title and recitals 1 to 3, 6 and 7 of Regulation No 411/2004 expressly refer to ‘air transport between the [European Union] and third countries’, without any distinction according to whether (i) they are from or to the European Union or (ii) they concern freight or the carriage of passengers.
108    The purpose of Regulation No 411/2004 also argues in favour of including inbound freight services within the scope of that regulation. It is clear from recital 3 of that regulation that the extension of the scope of Regulation No 1/2003 to air transport between the European Union and third countries is based on a twofold finding. First, ‘anti-competitive practices in air transport between the [European Union] and third countries may affect trade between Member States’. Second, ‘mechanisms enshrined in [the latter regulation] are equally appropriate for applying the competition rules to air transport between the [European Union] and third countries’. The applicant has neither demonstrated nor even alleged that inbound freight services are, by their very nature, incapable of affecting trade between Member States or are not appropriate for implementing the mechanisms provided for by that regulation.
109    Lastly, the travaux préparatoires for Regulation No 411/2004 confirm that the EU legislature did not intend to draw a distinction either between inbound and outbound routes or between freight and passenger transport. It is thus clear from point 10 of the explanatory memorandum of the proposal for the Council regulation repealing Regulation No 3975/87 and amending Regulation (EEC) No 3976/87 and Regulation No 1/2003, in connection with air transport between [the European Union] and third countries (COM/2003/0091 final – CNS 2003/0038), that, ‘the extension of the competition enforcement rules to include also international air transport to and from the [European Union] would afford [carriers] the clear benefit of a common EU-wide enforcement system as to the legality of their agreement under the [EU] competition rules’. In the same paragraph, reference is made to the desire to ensure ‘the airline industry’s need for a level playing field for all air transport activities’.
110    It follows that, contrary to the applicant’s claim, inbound freight services fall within the scope of Regulation No 411/2004 and Decision of the EEA Joint Committee No 40/2005. The Commission did not therefore err in finding, in recital 1041 of the contested decision, that Article 101 TFEU was applicable to air transport between the European Union and third countries ‘in both directions’; the same considerations apply to Article 53 of the EEA Agreement with regard to non-EU EEA-third country routes.
111    Accordingly, the first part of the present plea must be rejected.
(b)    The second and third parts, alleging, respectively, an error in the application of the implementation test and an error in the application of the qualified effects test
112    It should be observed, as the applicant does, that, as regards conduct adopted outside the territory of the EEA, the mere existence of directives or regulations covered by Article 103(1) TFEU is not sufficient to establish the Commission’s jurisdiction under public international law to find and penalise an infringement of Article 101 TFEU or of Article 53 of the EEA Agreement.
113    The Commission must also be able to establish that jurisdiction on the basis of the implementation test or the qualified effects test (see, to that effect, judgments of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 40 to 47, and of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraphs 95 to 97).
114    Those tests are alternative and not cumulative (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 98; see also, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 62 to 64).
115    In recitals 1043 to 1046 of the contested decision, the Commission relied on both the implementation test and the qualified effects test in order to establish its jurisdiction under public international law to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes.
116    Since the applicant alleges an error in the application of each of those two tests, the Court considers it appropriate to examine, first of all, whether the Commission was entitled to avail itself of the qualified effects test. In accordance with the case-law cited in paragraph 114 above, it is only in the negative that it will be necessary to ascertain whether the Commission was entitled to rely on the implementation test.
117    The applicant claims that the contested decision is based on the incorrect assumption that the single and continuous infringement, in so far as it concerned inbound freight services, had a substantial, immediate and foreseeable effect on competition in the EEA.
118    According to the applicant, the Commission erred in recital 1045 of the contested decision by concluding that the anticompetitive practices relating to inbound routes had, ‘by their nature’, had an effect on competition in the European Union or the EEA, since the increased costs of transport that resulted from those practices had had an effect on the price of the transported goods. The applicant argues, on the one hand, that the Commission, on which the burden of proof rests, was merely making an assumption for which there was no evidence and which, in any event, was too general.
119    The judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632) does not call that conclusion into question. The applicant submits that it is in fact clear from that judgment that, where the Commission claims that its jurisdiction is based on certain effects, those effects must be ‘probable’. However, in recital 917 of the contested decision, the Commission stated that it was not making any assessment of the anticompetitive effects of the anticompetitive practices at issue.
120    On the other hand, the applicant submits that the Commission disregarded three factors which were capable of calling its conclusions into question. First, it cannot be maintained that an increase in surcharges leads to a quasi-automatic increase in the price of the goods transported, nor, a fortiori, that such an increase is a ‘natural’ consequence. Since the infringement related solely to the FSC and the SSC, freight forwarders were still able to exercise buying power over the other elements of the total price. It is apparent from an economic study that there is a substantial negative correlation between the level of surcharges and the level of the other elements of the total price, such that, if surcharges increase, rates decrease.
121    Second, it is not at all a given (‘by its nature’) that any impact on the overall price of cargo transport caused by the infringement on surcharges was actually carried over to the price that shippers were charged. Given the characteristics of the market in question, that would have depended entirely on freight forwarders, which apparently deviate from the price elements of the applicant and include higher surcharges than those charged by the applicant. It is apparent, moreover, from Commission Decision C(2012) 1959 final of 28 March 2012 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/39462 – Transit) (‘the Transit Decision’), that at least part of the prices charged by freight forwarders to shippers during the period in question was itself the result of infringements of the competition rules, with the result that the causal link between the applicant’s conduct and the effects of that conduct is uncertain. The applicant submits that this also suggests that freight forwarders were able to exercise buying power over the applicant through other elements of the price.
122    Third, it is not at all obvious that any effects of the infringement within the EEA were substantial. First, according to the applicant, there is a substantial negative correlation between the level of the surcharges and the level of other elements of the total price. The applicant claims, second, that the total value of the surcharges which it applied during the relevant period was, on average, approximately 20% of the total price that it charged freight forwarders, and was part of a much larger package of services provided by freight forwarders.
123    In its reply, the applicant also observes that the Commission’s argument relates to the functioning of a market other than that covered by the contested decision and on which the applicant markets its services to its customers.
124    Again at the reply stage, the applicant adds that the Court cannot, without infringing its rights of defence, accept that the Commission had jurisdiction over flights on inbound routes in the light of the ‘effects theory’ on the basis of the observations set out in the defence. According to the applicant, the latter were not part of the Statement of Objections. The Transit Decision had not yet been issued at the time of the administrative procedure.
125    At the hearing, the applicant also claimed that the Commission was not entitled to conclude that the qualified effects test could apply in the light of the conduct at issue taken as a whole rather than in the light of the coordination relating to inbound freight services taken in isolation. The applicant argues that the case giving rise to the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), on which the Commission’s line of argument is based, is different from the present case. Thus that case concerned a foreclosure strategy, in which the customers of the dominant undertaking were ‘vectors’. In addition, the applicant maintains that the Commission’s decision-making practice does not support the finding that there is a worldwide freight market, and disputes the ‘overall logic of the worldwide infringement’. Furthermore, in the applicant’s submission, there is no evidence to show that the competitive structures in the EEA market were modified as a result of the conduct of freight forwarders outside the EEA.
126    The Commission disputes the applicant’s arguments.
127    As a preliminary point, it should be observed that the applicant is not entitled to criticise the Commission for relying, in its defence, on information which was not included in the Statement of Objections. The only element of that nature to which the applicant refers is the Commission’s reference to the Transit Decision in that defence, which the applicant itself relied on in the application, and which the Commission merely quoted in its pleadings in order to defend itself.
128    Next, in the contested decision, the Commission relied, in essence, on three separate grounds in order to find that the qualified effects test was satisfied in the present case.
129    The first two grounds are set out in recital 1045 of the contested decision. As the Commission confirmed in reply to the written and oral questions put by the Court, those grounds concern the effects of coordination in relation to inbound freight services taken in isolation. The first ground is that the ‘increased costs of air transport to the EEA, and consequently the higher prices of imported goods [were], by their very nature, liable to have effects on consumers in the EEA’. The second ground concerns the effects of coordination in relation to inbound freight services ‘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’.
130    The third ground is set out in recital 1046 of the contested decision and concerns, as is apparent from the Commission’s answers to the written and oral questions put by the Court, the effects of the single and continuous infringement taken as a whole.
131    The Court deems it appropriate to examine both the effects of coordination in relation to inbound freight services taken in isolation and the effects of the single and continuous infringement taken as a whole, starting with the former.
(1)    The effects of coordination in relation to inbound freight services taken in isolation
132    It is appropriate to examine, first of all, the merits of the first of the grounds on which the Commission’s conclusion that the qualified effects test is satisfied in the present case (‘the effect at issue’) is based.
133    In that connection, it should be recalled that, as is apparent from recital 1042 of the contested decision, the qualified effects test allows the application of the EU and EEA competition rules to be justified under public international law when it is foreseeable that the conduct at issue will have an immediate and substantial effect in the internal market or within the EEA (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 49; see also, to that effect, judgment of 25 March 1999, Gencor v Commission, T‑102/96, EU:T:1999:65, paragraph 90).
134    In the present case, the applicant disputes the relevance of the effect at issue (see paragraphs 135 to 154 below), and its foreseeability (see paragraphs 155 to 174 below), its substantiality (see paragraphs 175 to 185 below) and its immediacy (see paragraphs 186 to 194 below).
(i)    The relevance of the effect at issue
135    It is clear from the case-law that the fact that an undertaking participating in an agreement or a concerted practice is situated in a third country does not prevent the application of Article 101 TFEU and Article 53 of the EEA Agreement, if that agreement or practice is operative, respectively, in the internal market or within the EEA (see, to that effect, judgment of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 11).
136    The purpose of applying the qualified effects test is precisely to prevent conduct which, while not adopted within the EEA, has anticompetitive effects liable to have an impact in the internal market or within the EEA (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 45).
137    Contrary to what the applicant claims, that test does not require it to be established that the conduct at issue produced effects which actually materialised in the internal market or within the EEA. On the contrary, according to the case-law and as the applicant acknowledges in its reply, it is sufficient to take account of the probable effects of that conduct on competition (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 51).
138    It is for the Commission to ensure the protection of competition in the internal market or within the EEA against threats to the effective functioning thereof.
139    Where conduct has been found by the Commission, as in the present case, to reveal a degree of harmfulness to competition in the internal market or within the EEA such that it could be classified as a restriction of competition ‘by object’ within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement, the application of the qualified effects test also cannot require the demonstration of the actual effects which classification of conduct as a restriction of competition ‘by effect’ within the meaning of those provisions presupposes.
140    In that connection, it should be recalled, as the applicant submits, that the qualified effects test is enshrined in the wording of Article 101 TFEU and Article 53 of the EEA Agreement, which are intended to prevent agreements and practices which limit competition in the internal market and within the EEA, respectively. Those provisions prohibit agreements and practices of undertakings which have as their object or effect the prevention, restriction or distortion of competition ‘within the internal market’ and ‘within the territory covered by [the EEA Agreement]’, respectively (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 42).
141    It is settled case-law that the anticompetitive object and effect are not cumulative conditions, but alternative conditions for assessing whether conduct falls within the prohibitions laid down in Article 101 TFEU and Article 53 of the EEA Agreement (see, to that effect, judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 28 and the case-law cited).
142    It follows that, as the Commission observed in recital 917 of the contested decision, there is no need to take account of the actual effects of the conduct at issue once its anticompetitive object has been established (see, to that effect, judgments of 13 July 1966, Consten and Grundig v Commission, 56/64 and 58/64, EU:C:1966:41, p. 342, and of 6 October 2009, GlaxoSmithKline Services and Others v Commission and Others, C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, EU:C:2009:610, paragraph 55).
143    In those circumstances, interpreting the qualified effects test, as the applicant appears to advocate, as requiring proof of the actual effects of the conduct at issue even where there is a restriction of competition ‘by object’, would amount to making the Commission’s jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement subject to a condition which has no basis in the wording of those provisions.
144    The applicant cannot therefore validly claim that the Commission erred in finding that the qualified effects test was satisfied, even though it stated, in recitals 917, 1190 and 1277 of the contested decision, that it was not required to make an assessment of the anticompetitive effects of the conduct at issue in the light of the anticompetitive object thereof. Nor can the applicant deduce from those recitals that the Commission did not carry out any analysis of the effects produced by that conduct in the internal market or within the EEA for the purposes of applying that test.
145    In recital 1045 of the contested decision, the Commission considered, in essence, that the single and continuous infringement, in so far as it related to inbound routes, was liable to increase the amount of the surcharges and, consequently, the total price of inbound freight services and that freight forwarders had passed on that additional cost to shippers based in the EEA, who had had to pay a higher price for the goods they had purchased than would have been charged in the absence of that infringement.
146    None of the applicant’s arguments permits the inference that the effect at issue was not among the effects produced by the conduct at issue which the Commission is entitled to take into account for the purposes of applying the qualified effects test.
147    In the first place, contrary to what the applicant appears to claim, there is nothing in the wording, scheme or purpose of Article 101 TFEU to suggest that the effects taken into account for the purposes of applying the qualified effects test must occur on the same market as that concerned by the infringement at issue rather than on a downstream market, as in the present case (see, to that effect, judgment of 9 September 2015, Toshiba v Commission, T‑104/13, EU:T:2015:610, paragraphs 159 and 161).
148    In the second place, the applicant is incorrect in claiming that the conduct at issue, in so far as it related to inbound routes, was not capable of restricting competition in the EEA, on the ground that that conduct took place only in third countries where the freight forwarders who sourced inbound freight services from the incriminated carriers are established.
149    In that connection, it should be noted that the qualified effects test must be applied in the light of the economic and legal context of the conduct at issue (see, to that effect, judgment of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 13).
150    In the present case, it is apparent from recitals 14, 17 and 70 of the contested decision and from the parties’ replies to the Court’s measures of organisation of procedure that the carriers sell their freight services exclusively or almost exclusively to freight forwarders. As regards inbound freight services, almost all those sales take place at the point of origin of the routes in question, outside the EEA, where those freight forwarders are established. It is apparent from the applicant’s replies to the Court’s measures of organisation of procedure that, between 1 May 2004 and 14 February 2006, it made only a negligible proportion of its sales of inbound freight services to customers based in the EEA.
151    It must, however, be observed that, although freight forwarders purchase those services, they do so in particular as intermediaries, in order to consolidate them into a package of services, the purpose of which is, by definition, to organise the integrated transport of goods to the territory of the EEA on behalf of shippers. As is apparent from recital 70 of the contested decision, the latter may in particular be the purchasers or owners of the goods transported. It is therefore at the very least likely that they are established in the EEA.
152    It follows that, provided that the freight forwarders pass any additional costs resulting from the cartel at issue on to the price of their service packages, it is in particular on competition that occurs between freight forwarders in order to attract those shippers as customers that the single and continuous infringement, in so far as it concerns inbound routes, is liable to have an impact and, consequently, it is in the internal market or within the EEA that the effect at issue is liable to materialise.
153    Consequently, the additional cost which shippers might have had to pay and the higher prices of the goods imported into the EEA which may have resulted are among the effects produced by the conduct at issue on which the Commission was entitled to rely for the purposes of applying the qualified effects test.
154    In accordance with the case-law cited in paragraph 133 above, the question is therefore whether that effect has the required foreseeability, substantiality and immediacy.
(ii) The foreseeability of the effect at issue
155    The requirement of foreseeability seeks to ensure legal certainty by guaranteeing that the undertakings concerned may not be penalised on account of effects which might indeed result from their conduct, but which they could not reasonably expect to occur (see, to that effect, Opinion of Advocate General Kokott in Otis Gesellschaft and Others, C‑435/18, EU:C:2019:651, point 83).
156    Effects the occurrence of which the members of the cartel at issue ought reasonably to take into consideration on the basis of practical experience thus satisfy the requirement of foreseeability, unlike effects which result from an entirely extraordinary train of events and, therefore, ensue via an atypical causal chain (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, point 42).
157    It is apparent from recitals 846, 909, 1199 and 1208 of the contested decision that what is at issue in the present case is collusive horizontal price-fixing behaviour, experience of which shows that it leads inter alia to price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (see, to that effect, judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 51).
158    It is also apparent from recitals 846, 909, 1199 and 1208 of the contested decision that the conduct related to the FSC, the SSC and the refusal to pay commission.
159    In the present case, it was therefore foreseeable for the incriminated carriers that the horizontal fixing of the FSC and the SSC would lead to an increase in the level of those charges. As is apparent from recitals 874, 879 and 899 of the contested decision, the refusal to pay commission was liable to reinforce such an increase. It amounted to a concerted refusal to grant freight forwarders discounts on surcharges, by which the incriminated carriers ‘ensured that pricing uncertainty, which could have arisen from competition on commission payments [in the context of negotiations with freight forwarders], remained suppressed’ (recital 874 of that decision) and thus aimed to eliminate competition in respect of surcharges (recital 879 of that decision).
160    It is apparent from recital 17 of the contested decision that the price of freight services is made up of rates and surcharges, including the FSC and SSC. Unless it were considered that an increase in the FSC and the SSC would, as a result of a sufficiently probable ‘waterbed effect’, be offset by a corresponding reduction in rates and other surcharges, such an increase was, in principle, liable to lead to an increase in the total price of inbound freight services. The applicant has failed to demonstrate that a ‘waterbed effect’ was so probable as to render the effect at issue unforeseeable.
161    In the present case, the applicant admittedly infers from an economic report given in the context of the actions for damages that there is ‘a substantive negative correlation between the level of surcharges, and the level of “rates”, to the effect that if surcharges went up, the rates went down’.
162    In so far as the applicant thus seeks to maintain that the ‘waterbed’ effect was sufficiently probable as to render the effect at issue unforeseeable, it should be noted that the economic report on which the applicant relies concludes, on the basis of assumptions as to the operation of the freight sector, that it was theoretically ‘likely’ that the ‘waterbed effect’ would materialise in the present case.
163    The assumptions on which the economic report in question is based include, in particular, the assumption that the rates were sufficiently ‘flexible’ to offset any supra-competitive increase in surcharges by a corresponding reduction. According to that report, there are three types of rates. Rates of the first type are negotiated on a specific basis and determined on a daily basis. They may therefore be subject to immediate adjustments. The second and third types of rates, which represented a sizeable majority of the turnover from the sale of freight services during the infringement period, are, respectively, those based on prices published twice a year and those negotiated bilaterally for a period of one to 12 months. That report acknowledges that those types of rates cannot be subject to immediate adjustments, but concludes that the response time thereof remains sufficiently low to give rise to the ‘waterbed effect’. However, that report does not contain, beyond vague and general assertions, any specific data capable of substantiating that conclusion.
164    In those circumstances, the members of the cartel at issue could reasonably have foreseen that the effect of the single and continuous infringement, in so far as it concerned inbound freight services, would be an increase in the price of freight services on inbound routes.
165    The question is therefore whether it was foreseeable for the incriminated carriers that freight forwarders would pass on such additional costs to their own customers, namely shippers.
166    In that connection, it should be observed at the outset that the applicant is not justified in criticising the Commission for having found that such an effect was ‘quasi automatic’ or akin to a ‘“natural” consequence of the [single and continuous] infringement’. In recital 1045 of the contested decision, the Commission merely observed that the conduct at issue was ‘liable’ to have the requisite effects in view of the ‘increased costs of air transport to the EEA and consequently higher prices of imported goods’. The reference to the ‘nature’ of the conduct at issue, which is set out in the same recital, is intended solely to describe the capacity of the increased cost of imported goods to affect ‘consumers in the EEA’.
167    Furthermore, it is apparent from recitals 14 and 70 of the contested decision that the price of freight services is an input for freight forwarders. That is a variable cost, the increase in which has, in principle, the effect of increasing the marginal cost in the light of which freight forwarders set their own prices.
168    The applicant does not put forward any evidence demonstrating that the circumstances of the present case were not conducive to passing on the additional costs resulting from the single and continuous infringement on inbound routes to shippers downstream.
169    In those circumstances, it was reasonably foreseeable for the incriminated carriers that freight forwarders would pass on such additional costs to shippers through an increase in the price of freight-forwarding services.
170    As is apparent from recitals 70 and 1031 of the contested decision, the cost of goods the integrated transportation of which is generally organised by freight forwarders on behalf of shippers incorporates the price of freight-forwarding services, and in particular the cost of freight services, which are a constituent element thereof.
171    In the light of the foregoing, it was therefore foreseeable for the incriminated carriers that the single and continuous infringement would have the effect, in so far as it related to inbound routes, of increasing the price of imported goods.
172    For the reasons set out in paragraph 151 above, it was equally foreseeable for the incriminated carriers that, as is apparent from recital 1045 of the contested decision, that effect would occur in the EEA.
173    Since the effect at issue was part of the normal course of events and economic rationale, it was not, contrary to what the applicant maintained at the hearing, in any way necessary for the applicant to have precise knowledge of the functioning of the downstream markets in order to be able to foresee it.
174    It must therefore be concluded that the Commission has established to the requisite standard that the effect at issue was foreseeable.
(iii) The substantiality of the effect at issue
175    The assessment of whether effects produced by the conduct at issue are substantial must be carried out in the light of all the relevant circumstances of the case. Those circumstances include, inter alia, the duration, nature and scope of the infringement. Other circumstances, such as the size of the undertakings which participated in that conduct, may also be relevant (see, to that effect, judgments of 9 September 2015, Toshiba v Commission, T‑104/13, EU:T:2015:610, paragraph 159, and of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 112).
176    Where the effect under consideration relates to an increase in the price of a finished product or service derived from or containing the cartelised service, the proportion of the price of the finished product or service represented by the cartelised service may also be taken into account.
177    In the present case, in the light of all the relevant circumstances, it must be held that the effect at issue, relating to the increase in the price of goods imported into the EEA, is substantial.
178    In the first place, it is apparent from recital 1146 of the contested decision that the duration of the single and continuous infringement amounts to 21 months in so far as it concerned EU-third country routes, and 8 months in so far as it concerned the non-EU EEA-third country routes. It is apparent from recitals 1215 and 1217 of that decision that this is also the duration of all the incriminated carriers’ participation, with the exception of Lufthansa Cargo and Swiss.
179    In the second place, as regards the scope of the infringement, it is apparent from recital 889 of the contested decision that the FSC and the SSC were ‘measures of general application that [were] not route specific’ and ‘were intended to be applied on all routes, on a worldwide basis, including routes to … the EEA’.
180    In the third place, as regards the nature of the infringement, it is apparent from recital 1030 of the contested decision that the object of the single and continuous infringement was to restrict competition between the incriminated carriers, inter alia on EEA-third country routes. In recital 1208 of that decision, the Commission concluded that the ‘fixing of various elements of the price, including particular surcharges, constitute[d] one of the most harmful restrictions of competition’ and therefore found that the single and continuous infringement merited the application of a gravity factor ‘at the higher end of the scale’ provided for in the 2006 Guidelines.
181    For the sake of completeness, as regards the proportion of the price of the cartelised service in the product or service which is derived from it or contains it, it should be noted that, contrary to what the applicant submits, during the infringement period the surcharges represented a significant proportion of the total price of freight services.
182    It is thus apparent from a letter of 8 July 2005 from the Hong Kong Association of Freight Forwarding & Logistics to the Chairman of the Cargo Sub-Committee of the Hong Kong Board of Airline Representatives, that the surcharges represent a ‘very significant part’ of the total price of the air waybills which freight forwarders were required to pay. Similarly, in the application and the annexes thereto, it is stated that the surcharges represented 22% of the price of the applicant’s freight services during the 2004/2005 financial year.
183    As is apparent from recital 1031 of the contested decision, the price of freight services was itself a ‘significant cost element of the goods transported that has an impact on their sale’.
184    Again for the sake of completeness, as regards the size of the undertakings that participated in the conduct at issue, it is apparent from recital 1209 of the contested decision that the combined market share of the incriminated carriers on the ‘worldwide market’ was 34% in 2005 and was ‘at least as high for freight services provided on EEA-third country routes’, which includes both outbound and inbound routes. Moreover, during the period of the infringement, the applicant itself achieved a significant turnover on inbound routes, in excess of EUR 471 000 000 in 2005.
185    It must therefore be concluded that the Commission has established to the requisite standard that the effect at issue was substantial.
(iv) The immediacy of the effect at issue
186    The requirement of immediacy of the effects produced by the conduct at issue relates to the causal link between the conduct at issue and the effect under consideration. The purpose of that requirement is to ensure that the Commission cannot, in order to justify its jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement, rely on all the possible effects, however remote, for which that conduct might have been the cause in the sense of a conditio sine qua non (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, points 33 and 34).
187    The direct causal link must not, however, be regarded as being the same as a single causal link, which would mean always finding as a matter of course that the chain of causality is broken where the action of a third party was a contributory cause of the effects at issue (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, points 36 and 37).
188    In the present case, the intervention of freight forwarders in respect of which it was foreseeable that, with complete independence, they would pass on to shippers the additional costs that they had had to pay, is indeed capable of having contributed to the occurrence of the effect at issue. However, that intervention was not, in itself, such as to break the causal chain between the conduct at issue and that effect and thus deprive it of its immediacy.
189    On the contrary, where it is not wrongful, but objectively results from the cartel at issue, in accordance with the normal functioning of the market, such an intervention does not break the causal chain (see, to that effect, judgment of 14 December 2005, CD Cartondruck v Council and Commission, T‑320/00, not published, EU:T:2005:452, paragraphs 172 to 182), but continues it (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, point 37).
190    In the present case, the applicant submits, admittedly, that the anticompetitive practices for which the Commission penalised the freight forwarders place ‘great uncertainty’ on the causal link between the conduct at issue and the effect at issue. According to the applicant, there are ‘concrete indications that at least some of the prices charged by freight forwarders to shippers in the relevant period were themselves the result of [those practices]’. It must, however, be observed that the applicant has neither established nor even alleged that, in the context of those practices, the freight forwarders unlawfully coordinated in order to pass on to the shippers the additional cost that they had to pay. Nor does the applicant demonstrate that those practices were such as to prevent the freight forwarders from passing that additional cost on to the shippers.
191    The applicant’s argument that the level of the additional costs which freight forwarders charged shippers exceeded that of the surcharges which they paid to the incriminated carriers does not call that conclusion into question. First, the applicant has failed to substantiate that argument, merely referring, without elaborating further, to the evidence that was provided to it in the context of the actions for damages. Second, it has failed to explain why freight forwarders could not have passed on both the additional costs resulting from the single and continuous infringement to shippers and invoiced the latter for surcharges of a total amount greater than that of the surcharges which they themselves had to pay to the incriminated carriers.
192    It cannot therefore be considered that the foreseeable passing on of the additional cost to shippers located in the EEA is the result of the anticompetitive practices in respect of which the Commission penalised the freight forwarders and is, consequently, wrongful or extraneous to the normal functioning of the market.
193    As regards the ‘buying power’ that the freight forwarders allegedly exercised, the applicant has failed to adduce evidence of this or even to explain how it was such as to break the causal chain between the conduct at issue and the occurrence of the effect at issue.
194    It follows that the effect at issue has the required immediacy.
195    It is clear from the foregoing that the effect at issue is foreseeable, substantial and immediate and that the first ground on which the Commission relied in order to conclude that the qualified effects test was satisfied is well founded. It must therefore be held that the Commission could, without making any error, find that the test was satisfied as regards coordination in relation to inbound freight services taken in isolation, without there being any need to examine the merits of the second ground relied on in recital 1045 of the contested decision.
(2)    The effects of the single and continuous infringement taken as a whole
196    It should be noted at the outset that there is nothing to prevent an assessment of whether the Commission has the necessary jurisdiction to apply, in each case, EU competition law in the light of the conduct of the undertaking or undertakings in question, viewed as a whole (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 50).
197    According to the case-law, Article 101 TFEU may be applied to practices and agreements that serve the same anticompetitive objective, provided that it is foreseeable that, taken together, they will have immediate and substantial effects in the internal market. Undertakings cannot be allowed to avoid the application of the EU competition rules by combining a number of types of conduct that pursue the same objective, each of which, taken on its own, is not capable of producing an immediate and substantial effect in that market, but which, taken together, are capable of producing such an effect (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 106).
198    Contrary to what the applicant maintained at the hearing, it is in no way necessary for that objective to relate specifically to a ‘foreclosure’ or ‘squeezing out’ strategy or to rely on the intentional participation of the customers of the participants in the infringement at issue. The Court has held that the Commission was entitled to apply the qualified effects test in the light of the conduct at issue taken as a whole in a case concerning market sharing between competitors (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 108).
199    The Commission may thus base its jurisdiction to apply Article 101 TFEU to a single and continuous infringement as found in the decision at issue on the foreseeable, immediate and substantial effects of that infringement in the internal market (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 105).
200    Those considerations apply, mutatis mutandis, in respect of Article 53 of the EEA Agreement.
201    In recital 869 of the contested decision, the Commission characterised the conduct at issue as a single and continuous infringement, including in so far as it concerned inbound freight services. The applicant does not dispute that characterisation generally, or the finding that there was a single anticompetitive objective of distorting competition within the EEA on which that characterisation is based.
202    In recital 1046 of the contested decision, the Commission, as is apparent from its answers to the written and oral questions put by the Court, examined the effects of that infringement taken as a whole. It thus found, inter alia, that its investigation had revealed ‘a cartel [that] was implemented globally’, whose ‘arrangements concerning inbound routes formed an integral part of the single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement’. It added that the ‘uniform application of the surcharges on a world wide scale was a key element of the cartel [at issue]’. As the Commission stated in reply to the written questions put by the Court, the uniform application of the surcharges forms part of an overall strategy designed to neutralise the risk that the freight forwarders could circumvent the effects of that cartel by opting for indirect routes which would not be subject to coordinated surcharges in order to transport goods from the point of origin to the point of destination. The reason for that is not, as the applicant suggested at the hearing, the hypothetical worldwide dimension of the freight market but rather that, as is apparent from recital 72 of the contested decision, ‘there is not the same time sensitivity associated with [freight] transport as there is with passenger transport’, so that freight ‘may be routed with a higher number of stopovers’ and that indirect routes can, therefore, be substituted for direct routes.
203    The applicant did, admittedly, dispute the existence of such a strategy at the hearing. However, it merely made assertions.
204    Under those circumstances, the Commission is correct in contending that prohibiting it from applying the qualified effects test to the conduct at issue taken as a whole would lead to an artificial fragmentation of comprehensive anticompetitive conduct, capable of affecting the market structure within the EEA, into a collection of separate forms of conduct which might escape the European Union’s jurisdiction (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 57).
205    It must therefore be held that the Commission was entitled, in recital 1046 of the contested decision, to examine the effects of the single and continuous infringement taken as a whole.
206    As regards agreements and practices which, first, had the object of restricting competition at least in the European Union, the EEA and Switzerland (recital 903 of that decision), second, brought together carriers with significant market shares (recital 1209 of that decision) and, third, a significant part of which related to intra-EEA routes for a period of more than six years (recital 1146 of that decision), there can be little doubt that it was foreseeable that, taken as a whole, the single and continuous infringement would produce immediate and substantial effects in the internal market or within the EEA.
207    It follows that the Commission was also entitled to find, in recital 1046 of the contested decision, that the qualified effects test was satisfied as regards the single and continuous infringement taken as a whole.
208    Since the Commission has thus established to the requisite legal standard that it was foreseeable that the conduct at issue would produce a substantial and immediate effect in the EEA, the present complaint must be rejected, as, consequently, must the present plea in its entirety, without it being necessary to examine the second part thereof, alleging errors in the application of the implementation test.
2.      The plea, raised of the Court’s own motion, alleging lack of jurisdiction on the part of the Commission, in the light of 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
209    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).
210    However, 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 of M v EMEA, C‑197/09 RX-II, EU:C:2009:804, paragraph 57 and the case-law cited).
211    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 regard in the context of the measures of organisation of procedure.
212    The applicant claims that the reference to ‘third countries’ in Article 1(3) of the contested decision includes the Swiss Confederation. The latter is, in the applicant’s view, a third country within the meaning of the EEA Agreement, the infringement of which is established in that article. The applicant infers 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.
213    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.
214    The Commission adds that, if it were to be held that it found the applicant 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.
215    It is necessary to determine whether, as the applicant maintains, 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, if necessary, whether it thus exceeded the limits of its jurisdiction under the EC-Switzerland Air Transport Agreement.
216    In that regard, it should be recalled that, as has been observed in paragraph 83 above, it is the operative part, and not the statement of reasons, which is important in determining the scope and nature of the infringements penalised.
217    In Article 1(3) of the contested decision, the Commission found that the applicant 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.
218    It is therefore necessary to ascertain whether the Swiss Confederation comes under the ‘third countries’ referred to in Article 1(3) of the contested decision.
219    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 applicant observes, the Swiss Confederation is not party to the EEA Agreement and therefore numbers amongst the third countries to that agreement.
220    It must however be borne in mind that, given the requirements of unity and consistency in the EU legal order, the same words used in the same measure must be presumed to have the same meaning.
221    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 in Switzerland, even though the Swiss Confederation is not party to the EEA Agreement and its airports should therefore 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’.
222    In accordance with the principle recalled in paragraph 220 above, it must therefore be presumed that the phrase ‘airports in third countries’ used in Article 1(3) of the contested decision has the same meaning as the terms ‘airports outside the EEA’ used in Article 1(2) and, therefore, excludes airports in Switzerland.
223    In the absence of the slightest 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 concluded that the concept of ‘third countries’ in Article 1(3) thereof excludes the Swiss Confederation.
224    It therefore cannot be held that the Commission found the applicant 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.
225    Since the operative part of the contested decision leaves no room for doubt, it is thus solely for the sake of completeness that the Court adds that the grounds of that decision do not contradict that finding.
226    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 (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’.
227    Admittedly, 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 to that of ‘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 expressions 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’.
228    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.
229    Contrary to what the applicant claims, 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 [it] 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.
230    The Commission also acknowledged 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 a request for information of 26 January 2009 concerning certain turnover figures, 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.
231    It must nevertheless be found, as the Commission did, that those aspects concerned only the revenues to be taken into account for the purposes of calculating the basic amount of the fine, not the definition of the geographic scope of the single and continuous infringement at issue here.
232    The present plea must therefore be rejected.
3.      The first plea, alleging infringement of the prohibition on arbitrariness, the principle of equal treatment and the obligation to state reasons
233    The applicant claims that the Commission acted arbitrarily and infringed the principle of equal treatment by penalising it for the single and continuous infringement while failing to do the same in respect of the non-incriminated carriers and for the 47 carriers which were not addressees of the Statement of Objections, but which are mentioned in the grounds of the contested decision, even though those carriers also participated in the cartel at issue (‘the 47 carriers’).
234    The applicant argues that the grounds of the contested decision contain references to the 47 carriers which are such as to suggest that the Commission adopted a position on their liability. Those grounds do not make it possible to identify any difference between the actions of those carriers and those of the incriminated carriers. Nor do those grounds contain any objective justification for the different legal consequences of that decision for those two categories of carrier. The applicant emphasises, in that connection, the effects of that unequal treatment in terms of the risk of being considered a ‘repeat offender’ if it engages in similar behaviour, expiry of the statute of limitations, and exposure to actions for damages.
235    The applicant also claims that the present case differs from the cases in which the Courts of the European Union held that the Commission was under no obligation to set out the reasons why it had decided to address a decision to certain undertakings and not to others. The applicant argues, first of all, that the account of the facts and the legal assessment thereof in the grounds of the contested decision raise questions concerning its ‘relative liability’, and not evidence on the file or the substance of its submissions. It is also a question of the material liability for an infringement and not how the geographic scope of such a market-sharing infringement should be delineated. Next, in the light of the expiry of the applicable limitation period, it is no longer conceivable that the 47 carriers should receive a fine. Lastly, as is confirmed, in the applicant’s view, by the judgment of 16 December 2015, Koninklijke Luchtvaart Maatschappij v Commission (T‑28/11, not published, EU:T:2015:995, paragraph 44), civil liability incurred as a result of infringement of the competition rules has become a relevant factor in the analysis of ‘relative liability’.
236    In its reply, the applicant adds that there are inconsistencies in the defence which raise the question whether the alleged difference in treatment constitutes a failure to comply with the obligation to state reasons. The applicant argues that the Commission thus stated that it did not rule on the liability of the 47 carriers, while maintaining that it assessed the evidence concerning those carriers and reached the conclusion that it was not appropriate to hold them liable for their conduct.
237    The Commission disputes the applicant’s line of argument.
238    It must be recalled that the principle of equal treatment, which is a general principle of EU law, enshrined in Article 20 of the Charter, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 51 and the case-law cited).
239    Breach of the principle of equal treatment as a result of different treatment thus presupposes that the situations concerned are comparable, having regard to all the elements which characterise them. The elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in the light of the subject matter and purpose of the EU act which makes the distinction in question (see judgment of 20 May 2015, Timab Industries and CFPR v Commission, T‑456/10, EU:T:2015:296, paragraph 202 and the case-law cited).
240    In the present case, the applicant claims, in essence, that the Commission breached the principle of equal treatment by penalising it while refraining from finding all the 47 carriers liable and from consequently penalising them.
241    The applicant has in no way established that the 47 carriers were in a situation similar to its own. It merely asserts that ‘there is no (apparent) difference between [their] actions’ and that the fact that it made a leniency application is irrelevant. However, it fails to demonstrate that the Commission had a body of evidence against the carriers in question that was comparable to that which it had against the applicant.
242    Furthermore, even if the 47 carriers were in a situation similar to that of the applicant, and even if the Commission committed an unlawful act by not holding them liable, such an unlawful act, which is not the subject of the present action before the Court, cannot under any circumstances lead it to find that the applicant has been the subject of discrimination and therefore of an unlawful act. It follows from the case-law that the principle of equal treatment must be reconciled with the principle of legality, according to which a person may not rely, to his or her benefit, on an unlawful act committed in favour of a third party (judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 55).
243    Contrary to the applicant’s claim, the present case does not present any particularity that would justify not applying that case-law. In that connection, the fact that a finding of liability against other undertakings may, where appropriate, have an effect on the applicant’s ‘relative liability’ for the single and continuous infringement and for the payment of compensation, in the context of actions for damages, in respect of the damage suffered by the victims as a result, is not in any way particular to the present case. As to the circumstance that the Commission’s exercise of its power to impose penalties on the non-incriminated carriers would be time-barred, it is not apparent from the case-law that infringement of the principle of equal treatment would be precluded only in so far as the Commission retained the possibility of subsequently penalising undertakings which it has not already held liable for the infringement at issue.
244    The complaint alleging breach of the principle of equal treatment must therefore be rejected.
245    As regards the allegedly arbitrary nature of the Commission’s involvement, it is clear in particular from recitals 731 to 736 of the contested decision that the Commission duly set out the reasons why it held the applicant liable for the single and continuous infringement and penalised it on that account. The applicant has neither demonstrated nor alleged that those grounds are arbitrary.
246    As regards the absence of any finding of infringement or penalty against the 47 carriers, it should be noted that, in recital 716 of the contested decision, the Commission stated that it ‘[did] not necessarily hold every recital … and every single item of evidence contained therein to be of equal value. Rather, the recitals to which reference [was] made form[ed] part of the overall body of evidence the Commission [would] rely on and [had to] be evaluated in this context’.
247    That approach is consistent with the case-law – which, moreover, the applicant does not claim to be arbitrary – according to which the Commission is entitled to proceed on the basis of a body of evidence, assessed as a whole, in order to arrive at the firm conviction that the undertaking in question took part in the infringement, and which explains that the Commission was entitled to find, in the present case, that an overall assessment of the contacts at issue relied on as regards the applicant was sufficient to incriminate it, while taking the view that there was no sufficiently convincing body of evidence for other carriers concerned by some of the contacts referred to in the contested decision (see, to that effect, judgment of 26 January 2017, Commission v Keramag Keramische Werke and Others, C‑613/13 P, EU:C:2017:49, paragraph 51).
248    It follows that the complaint alleging infringement of the prohibition on arbitrariness must be rejected.
249    Lastly, as regards the alleged infringement of the obligation to state reasons, it must 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 other undertakings were neither pursued nor 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).
250    In the present case, the applicant specifically relies on the Commission’s failure to explain why undertakings which were in a situation similar to its own were not held liable for the single and continuous infringement.
251    It follows that the present complaint cannot succeed.
252    In the light of all of the foregoing, the present plea must be rejected.
4.      The third plea in law, alleging breach of the obligation to state reasons and a manifest error of assessment in the treatment of the refusal to pay commission as a separate element of the single and continuous infringement
253    The present plea, by which the applicant takes issue with the Commission for having treated the refusal to pay commission as an element of the single and continuous infringement distinct from the FSC and the SSC, falls into two parts. The first alleges a contradictory statement of reasons, and the second, a manifest error of assessment.
(a)    The scope of the third plea
254    In its application, the applicant emphasises that it advances its third plea ‘in part because it expects the precise [classification] of [the refusal to pay commission] to play a role in the ongoing [action for] damages proceedings’. In the reply, it states however that that plea directly concerns the operative part of the contested decision and sets out preliminary considerations on the interpretation to be made of that operative part in so far as it relates to the refusal to pay commission. It alleges that the contested decision might be taken to mean that there was a breach of the competition rules in connection with such a refusal irrespective of the jurisdictions concerned. The statement of reasons for that decision does not expressly indicate that the issue of the refusal to pay commission related solely to the FSC and the SSC, or that it is an element of the infringement that is not separate from, but complementary to the agreements and concerted practices relating to the FSC and the SSC. The applicant argues, lastly, that it follows from the above that the commissions on the surcharges were payable.
255    In its defence, the Commission contends that the third plea in law is put forward with a view to actions for damages. That, however, is not the purpose of an action for annulment brought before the Court. In its rejoinder, the Commission accepts that the applicant has a legitimate interest in advancing this third plea, but it argues that the interpretation of the operative part of the contested decision on which the applicant relies is wrong and that, in any event, there is no manifest error or breach of the obligation to state reasons.
256    It should be observed that, since the present plea has been put forward in support of the claim for annulment, the applicant’s preliminary remarks on the interpretation to be made of the operative part of the contested decision in so far as it relates to the refusal to pay commission, since they do not support either of the two parts of the plea, must be regarded as inadmissible for reasons similar to those set out in paragraph 79 above. In any event, even if such remarks could be interpreted as inviting the Court to comment on the scope to be given to that operative part inasmuch as it relates to that refusal, it would then be necessary for the applicant to seek a declaratory judgment, which does not fall within the Court’s jurisdiction (see paragraph 80 above).
(b)    The first part of the plea, alleging contradictory reasoning
257    The applicant claims that, in order to classify the refusal to pay commission as an element of the single and continuous infringement which is separate from the introduction of the surcharges, the Commission relied on two contradictory assumptions, namely that (i) the commissions ‘would otherwise have been payable if part of rates’ (recital 879 of the contested decision) and (ii) the commissions are in fact rebates or discounts on surcharges (recitals 5 and 879 of that decision). According to the applicant, contrary to the second, the first assumption rests on the notion that freight forwarders are agents performing a specific service in relation to the surcharges, for which they are remunerated by way of pre-agreed commissions. The applicant claims that it is clear, moreover, from a judgment of the Tribunale di Milano (District Court, Milan, Italy) that it is specious to claim that commissions would have been due if it were not for the infringement.
258    The Commission disputes the applicant’s arguments.
259    In that regard, it should be recalled that 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 that measure (judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 151).
260    A contradiction in the statement of the reasons on which a decision is based constitutes a breach of the obligation to state reasons, such as to affect the validity of the measure in question if it is established that, as a result of that contradiction, 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).
261    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.’
262    Similarly, in recital 879 of the contested decision, the Commission found that the commissions were ‘in fact’ discounts on the surcharges, thus showing that it did not endorse the existence of an agency model between carriers and freight forwarders by its use of the word ‘commission’.
263    It is apparent from those two recitals that the Commission analysed the refusal to pay commission as a tariff coordination measure, the objective of which was to align the conduct of the incriminated carriers which had to respond to requests for discounts or rebates from their freight-forwarder customers.
264    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 [the surcharges had been] part of rates’.
265    However, contrary to the applicant’s submission, that sentence does not contradict the passages from the contested decision cited in paragraphs 261 and 262 above.
266    On the one hand, it is apparent from recital 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 phrase ‘commission’ or ‘remuneration’, as is shown in particular by recitals 681 to 683, 685, 695, 696, 698 and 700 of that decision.
267    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 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.
268    The reference to ‘commission on surcharges’ in recital 879 of the contested decision cannot, therefore, be regarded as contradicting the reference, in that recital and elsewhere in that decision, to ‘discounts on the surcharges’.
269    On the other hand, it should be noted that the reference, in recital 879 of the contested decision, to the fact that commission would have been payable if the surcharges had been part of the 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.
270    Thus, the reference in question, which does not concern discounts on surcharges but rather discounts on rates, does not, contrary to what the applicant claims, relate to the nature of the ‘commission on surcharges’ and does not, in particular, support the conclusion that it was agreed upon in advance in the context of an agency relationship.
271    In the light of the foregoing, this part of the plea must therefore be rejected.
(c)    The second part of the plea, alleging manifest error of assessment
272    The applicant submits that the Commission made a manifest error of assessment by finding that the element of the single and continuous infringement relating to the refusal to pay commission could be distinguished from that relating to the FSC and the SSC. According to the applicant, no specific aspect of the element of the single and continuous infringement relating to the refusal to pay commission is sufficiently distinctive to support that finding. Thus, the three elements of the single and continuous infringement pursued the same objective of coordinating the effective price of the FSC and the SSC and, in view of their periods of application, form part of a ‘continuum’. Lastly, the content and methods of those elements were similar.
273    The Commission contends that this part of the plea is inadmissible, on the ground that it does not comply with the requirements of Article 76(d) of the Rules of Procedure. It also disputes the merits of the applicant’s arguments.
(1)    The admissibility of the present part
274    Pursuant to the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that Statute, and of Article 76(d) of the Rules of Procedure of the General Court, an application must, inter alia, contain the subject matter of the proceedings and a summary of those pleas in law. That information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and sound administration of justice, it is necessary, for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (orders of 28 April 1993, De Hoe v Commission, T‑85/92, EU:T:1993:39, paragraph 20, and of 21 May 1999, Asia Motor France and Others v Commission, T‑154/98, EU:T:1999:109, paragraph 49).
275    It is sufficiently clear and precise from the applicant’s arguments that the applicant claims that the Commission committed a manifest error of assessment by finding that the element of the single and continuous infringement relating to the refusal to pay commission could be distinguished from the two other elements of that infringement, even though it did not have a sufficiently distinctive character. The explanations which the Commission has put forward in order to challenge the substance of this complaint show, moreover, that it was able to understand the arguments relied on in support of it.
276    The present plea of inadmissibility must therefore be rejected.
277    Furthermore, although the Commission refrained from relying on it in the rejoinder (see paragraph 255 above), it is necessary to examine the plea of inadmissibility on grounds of public policy alleging the applicant’s lack of interest in raising this part of the plea.
278    When questioned on the plea of inadmissibility in the context of the Court’s measures of organisation of procedure, the applicant claimed that it had an interest in raising this part of the plea, in so far as it supported its claims for annulment and was linked to the first part of the third plea.
279    In particular, the applicant submits that, by the two parts of the third plea, it disputes the inclusion of the refusal to pay commission in the single and continuous infringement in respect of which it was found liable, and seeks to have the reference, in Article 1 of the contested decision, to that part of that infringement deleted.
280    The applicant states that it would clearly derive an advantage from the deletion of the reference at issue in the operative part of the contested decision, in so far as that would cease to have legal effects with respect to the conduct relating to the refusal to pay commission, in particular under Article 4 thereof, requiring it to refrain, in the future, from any similar conduct, and that its ‘relative liability’ for the single and continuous infringement would be diminished, with consequences in particular for the amount of the fine that should be imposed on it.
281    The applicant adds that this part of the plea is linked to the first part of the third plea, in so far as, if it were established that no commission was payable, there would then be no basis for maintaining the finding of a separate element relating to the refusal to pay commission. The present part of the plea is therefore not limited to the issue of the distinct nature of that element, but seeks to establish that it cannot be included within the scope of the single and continuous infringement.
282    The Commission, in its answers to the written questions put by the Court, again contends that the applicant cannot rely on a legitimate interest in raising this part of the plea solely from the point of view of actions for damages.
283    The Commission points out, as regards the benefits which the applicant derives from raising this part of the plea in so far as concerns the effects of the contested decision, that Article 4 thereof is purely declaratory in nature and not such as to establish an interest in obtaining annulment of that decision. As to the argument relating to the impact on the amount of the fine, it is new and out of time and should therefore be rejected as inadmissible.
284    It must be borne in mind that a plea for annulment is inadmissible on the ground that the applicant does not have an interest in bringing proceedings in that regard where, even if it were well founded, annulment of the contested act on the basis of that plea would not give the applicant satisfaction (judgment of 9 June 2011, Evropaïki Dynamiki v ECB, C‑401/09 P, EU:C:2011:370, paragraph 49; see also judgment of 26 October 2010, CNOP and CCG v Commission, T‑23/09, EU:T:2010:452, paragraphs 25 and 26).
285    According to the case-law, the interest in bringing proceedings must be vested and present and is evaluated as at the date on which the action is brought. An applicant cannot therefore rely on future and uncertain situations to justify his or her interest in seeking the annulment of the contested act (see, to that effect, judgment of 20 September 2007, Salvat père & fils and Others v Commission, T‑136/05, EU:T:2007:295, paragraphs 34 and 47).
286    In the present case, it should be observed that the applicant, by its arguments, does not challenge the truth of the facts underlying the refusal to pay commission or the fact that they are anticompetitive in nature.
287    Nor does the applicant call into question the Commission’s findings in recitals 872 to 883 of the contested decision in order to establish that the infringement at issue was a single infringement. Thus, the applicant agrees, in paragraph 85 of the application, with the description of the anticompetitive objective and the single nature of the conduct at issue, in that it all contributed to price coordination in freight matters (recitals 872 to 876 and 879 of the decision). The applicant also agrees, in paragraphs 86 and 87 of the application, with the finding as to the identity of the undertakings (recitals 878 and 881 to 883 of that decision) and individuals (recital 900 of that decision) involved, as well as the finding of parallels between the discussions in which those individuals took part (recital 880 of the decision in question).
288    In so far as the applicant claims, in response to the written questions put by the Court, that the element relating to the refusal to pay commission cannot be included within the scope of the single and continuous infringement, it must be observed that the applicant raises a new plea, the inadmissibility of which is obvious in the light of Article 84(1) of the Rules of Procedure, in so far as that complaint is not an amplification of a plea set out in the application and is not justified by the emergence of new matters of fact or law. It cannot be considered that this plea overlaps with the present part of the plea, which relates not to the inclusion in the single and continuous infringement of the conduct relating to the refusal to pay commission, but to the question whether that conduct must be differentiated from the elements of the single and continuous infringement relating to the surcharges. It should be added that the written questions put by the Court after the reopening of the oral part of the procedure had a precisely defined purpose, as is apparent from paragraphs 68 and 278 above, which it is not for the applicant to ignore in the observations that it submitted in response.
289    In so far as the applicant raises the issue of the differentiation between the element of the single and continuous infringement relating to the refusal to pay commission and its elements relating to the surcharges, it disputes neither the existence of the single and continuous infringement nor its characterisation or scope. It disputes the way in which the Commission presented its various elements within that scope. The applicant seeks, in this part of the plea, to have the reference to the refusal to pay commission redacted from the operative part of the contested decision.
290    Even if the reference to the refusal to pay commission were to be redacted from the operative part of the contested decision, the findings in that decision relating to the conduct underpinning the establishment of that element of the single and continuous infringement, its anticompetitive nature and inclusion in the scope of that infringement would be maintained, since none of that conduct is disputed. In other words, the content of that decision would be unchanged, the only difference being that the anticompetitive conduct covered by the references in that operative part to the refusal to pay commission would then covered by the references to the FSC and the SSC read in the light of the reasons which constitute its essential basis.
291    Thus, the partial annulment of the contested decision on the basis of the present part of the plea would have no effect on the applicant’s liability for the single and continuous infringement, or on the gravity or duration thereof. Consequently, that annulment would also have no effect on the amount of the fine imposed on the applicant or on the scope of the order made in Article 4 of that decision. The applicant’s argument in that regard must therefore be rejected. As to the positive consequences which would ensue for the actions for damages brought against it in connection with the conduct to which the contested decision relates, it should be borne in mind that those consequences cannot, by themselves, form the basis of an interest in raising the present part of the plea (see, to that effect, paragraph 81 above). Furthermore, those consequences are based on the hypothesis that the national court would interpret the operative part of that decision in accordance with the conjecture put forward by the applicant (see paragraph 254 above), which hypothesis the applicant itself accepts is uncertain and cannot, therefore, form the basis of an interest that was vested and present on the day the action was brought. Moreover, as has been found in paragraphs 84 to 88 above, it is apparent from the decision at issue that the geographic scope of that infringement, including that of the element relating to the refusal to pay commission, did not have a worldwide dimension, contrary to the interpretation put forward by the applicant, but was instead limited to the routes which the Commission regarded as falling within its jurisdiction.
292    In the light of the foregoing, it must be concluded that the partial annulment of the contested decision on the basis of this part of the plea would not procure an advantage for the applicant capable of forming the basis of its interest in bringing proceedings.
293    That conclusion is not called into question by the fact that the present part and the first part of the third plea are connected. It must be held that those parts are distinct, one based on infringement of an essential procedural requirement and the other based on a manifest error of assessment. The applicant has neither alleged nor demonstrated that the effects likely to follow from the acceptance of each of those parts are indissociable to such an extent that the finding of the admissibility of one of the parts should necessarily lead to that of the other.
294    In the light of the foregoing, this part of the plea must be declared inadmissible. It is therefore purely for the sake of completeness that the Court will examine the merits of that part.
(2)    The merits of the present part of the plea
295    It is apparent from the contested decision, and in particular from recitals 675 to 702 thereof, that the refusal to pay commission can be distinguished from the other two elements of the single and continuous infringement. Thus, it is one thing, for the carriers, to coordinate themselves directly on the application and value of the FSC and the SSC, but quite another for them to agree to deny freight forwarders a discount on the amount of those surcharges, once the principle of the application and amount thereof have been agreed upon.
296    It follows that the present part of the plea must be rejected as inadmissible and, in any event, unfounded.
297    Accordingly, the present plea in law must be rejected.
5.      The fourth plea in law, alleging infringements of Article 101 TFEU, of Article 49 of the Charter and of the 2006 Guidelines in setting the amount of the fine
298    The present plea, by which the applicant claims that the Commission erred in setting the amount of the fine, is divided into three parts, the first of which alleges infringement of Article 49 of the Charter and of the 2006 Guidelines, in that all of the revenue generated by the sale of freight services were taken into account for the purpose of calculating the value of sales; the second alleges infringement of Article 101 TFEU, Article 49 of the Charter and the 2006 Guidelines, in that sales to customers located outside the EEA were included in the value of sales; and the third claims that the general 15% reduction is insufficient.
(a)    The first part of the plea, alleging errors relating to the inclusion of all of the revenue generated by the sale of freight services in the value of sales
299    The applicant submits that the Commission determined the value of sales by reference to the turnover generated by the sale of freight services in general, rather than by reference to the specific revenues derived from the FSC and the SSC, with which the single and continuous infringement was associated. It relies, in essence, on three complaints, alleging (i) infringement of point 13 of the 2006 Guidelines; (ii) infringement of the principle of proportionality; and (iii) infringement of the principle of legality.
(1)    The first complaint, alleging infringement of point 13 of the 2006 Guidelines
300    The applicant maintains that the single and continuous infringement concerns only the FSC, the SSC and the refusal to pay commission, with the result that, in the light, in particular, of the intermediary nature of the freight services, the relevant parameter for determining the value of sales is ‘logically’ that of the revenue generated by the FSC and the SSC. There is nothing in the judgment of 6 May 2009, KME Germany and Others v Commission (T‑127/04, EU:T:2009:142) that suggests that the turnover relating to a component part of the end price is by definition inappropriate as a basis or point of reference for fines. Article 49 of the Charter implies that this question can only be answered on a strict case-by-case basis.
301    Referring to the judgment of 4 June 2009, T-Mobile Netherlands and Others (C‑8/08, EU:C:2009:343, paragraphs 25 to 35), the applicant adds that the question is not that of whether there is a market for surcharges, but rather one of determining the extent to which the undertakings in question restricted their commercial autonomy in order to determine the level of the surcharges. Coordination of the level of surcharges can, in the applicant’s submission, coexist with competitive behaviour in connection with other elements of the pricing of freight services, the determination of which is, moreover, a matter for decision-making centres that are functionally and geographically separate.
302    The Commission disputes the applicant’s arguments.
303    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, judgment 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 aim pursued by that point, set out 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 therefore be understood as referring to the sales made 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).
304    The Commission may therefore use the total price which the undertaking charged its customers on the relevant market for goods or services to determine the value of sales, without it being necessary to distinguish or deduct 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).
305    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 Article 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 pricing of the services at issue.
306    It follows that, contrary to what the applicant claims, point 13 of the 2006 Guidelines does not preclude the Commission taking into account the entire amount of the sales linked to the services at issue, without splitting that amount into its component elements.
307    Paragraphs 25 to 35 of the judgment of 4 June 2009, T-Mobile Netherlands and Others (C‑8/08, EU:C:2009:343), to which the applicant refers, do not invalidate that finding. Those paragraphs in fact concern the assessment as to whether a concerted practice is anticompetitive. However, they in no way relate to the concept of the value of sales, within the meaning of point 13 of the 2006 Guidelines.
308    Moreover, it should be observed that the approach advocated by the applicant amounts to considering that the price elements which were not the subject of coordination between the incriminated carriers must be excluded from the value of sales.
309    In that connection, it must 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 applicant maintains, the same applies to price elements which, like rates, were not specifically the subject of coordination, but form an integral part of the sale 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).
310    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).
311    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 freight services should be taken into account without splitting that amount into its component elements.
312    The present complaint must therefore be rejected.
(2)    The second complaint, alleging infringement of the principle of proportionality
313    The applicant claims that basing the value of sales on the total price of freight services rather than on the revenue generated by the surcharges alone leads to ‘disproportionate fines between the [incriminated carriers]’. Thus, in so far as the rates vary considerably from route to route and may depend on the market share which national governments are willing to grant to carriers through the landing rights granted, two carriers which generate identical revenue from the FSC and the SSC could be subject to significantly different fines on the sole ground that they operated on different routes during the period in question. In support of its arguments, the applicant refers to an economic analysis set out in Annex A.9 to the application.
314    The applicant adds that the Commission should have taken account of the ‘relatively low’ economic impact of the single and continuous infringement on the EEA market.
315    The Commission disputes the applicant’s arguments.
316    It must be recalled that the principle of proportionality requires that measures adopted by EU institutions must not exceed what is appropriate and necessary for attaining the legitimate aim 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).
317    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 fines must not be disproportionate to the objectives pursued, that is to say, to compliance with those rules, and that the amount of the fine imposed on an undertaking for an infringement in competition matters should be proportionate to the infringement, viewed as a whole, having regard, in particular, to its gravity and its duration (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).
318    In order to assess the gravity of an infringement of the competition rules, the Commission must take account of a large number of factors, the nature and importance of which vary according to the type of infringement in question 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).
319    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. Contrary to what the applicant claims, that case-law is not inapplicable to the goods or services which the applicant characterises as intermediary. At most it could be inapplicable to services which are confined to mere intermediation (judgment of 29 February 2016, Panalpina World Transport (Holding) and Others v Commission, T‑270/12, not published, EU:T:2016:109, paragraphs 106, 128 and 194), which is not the case for freight.
320    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).
321    Point 6 of the 2006 Guidelines reiterates 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.’
322    In recital 1190 of the contested decision, the Commission specifically found that the overall turnover from the sale of freight services should be taken into account, without splitting this into the component elements of the price of those services which specifically were the subject of coordination between the incriminated carriers, namely the surcharges.
323    Contrary to what the applicant maintains, the mere fact that the surcharges represented only a limited percentage of its turnover from the sale of freight services on EEA-third country routes for the 2004/2005 financial year is not such as to demonstrate that that approach was disproportionate in the light of the economic importance of the single and continuous infringement.
324    The very fact that an undertaking achieves sales at prices of which one or more elements have been fixed or 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).
325    As to the allegedly low impact of the single and continuous infringement on the EEA market, it must be borne in mind that the determination of the value of sales does not take account of criteria such as the actual impact of the infringement on the market or the damage caused (see, to that effect, judgments of 29 February 2016, UTi Worldwide and Others v Commission, T‑264/12, not published, EU:T:2016:112, paragraph 259, and of 12 July 2018, Viscas v Commission, T‑422/14, not published, EU:T:2018:446, paragraph 193).
326    It is only at the separate and later stage of determining the gravity factor that the Commission can, where appropriate, take account of such a criterion (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 94).
327    The applicant does not, in the context of the present plea, dispute the gravity factor applied in the contested decision.
328    As to the applicant’s claim that the approach followed in the contested decision results in ‘disproportionate fines among the [incriminated carriers]’, it should be observed that this is purely hypothetical. The applicant has failed to identify so much as one incriminated carrier which would have drawn from the surcharges revenue that was identical or even similar to the applicant’s own, and which would have received, on the sole ground that it operated on different routes during the period in question, a significantly lower fine than that imposed on the applicant. Moreover, the economic analysis set out in Annex A.9 to the application, on which the applicant bases that claim, concerns only the data for KLM Cargo.
329    It follows that the approach taken in recital 1190 of the contested decision, which consists in taking into account the overall turnover deriving from the sale of freight services, is appropriate for contributing to the attainment of the first objective referred to in point 6 of the 2006 Guidelines, which consists in adequately reflecting the economic importance of the single and continuous infringement. Furthermore, the applicant has failed to demonstrate that that approach was inappropriate for contributing to the achievement of the second objective referred to in that point, which is adequately to reflect the relative weight of each of the incriminated carriers.
330    The present complaint must therefore be rejected.
(3)    The third complaint, alleging breach of the principle of legality
331    It follows from the case-law cited in paragraph 274 above that the application initiating proceedings must specify the nature of the grounds on which the action is based, which means that a mere abstract statement of the grounds does not satisfy the requirements of those rules. Similar requirements apply where a submission is made in support of a plea in law (judgment of 14 May 1998, Mo och Domsjö v Commission, T‑352/94, EU:T:1998:103, paragraph 333).
332    However, the present complaint is not supported by any independent arguments. As it has not been explained, it must be rejected as manifestly inadmissible.
333    Since the three complaints relied on in support of this part of the plea have thus been rejected, this part of the plea must be rejected in its entirety.
(b)    The second part of the plea, alleging infringement of Article 101 TFEU, of Article 49 of the Charter and of the 2006 Guidelines
334    The applicant claims, in essence, that the Commission infringed Article 101 TFEU, Article 49 of the Charter, and point 13 of the 2006 Guidelines by including the turnover from KLM Cargo’s sales of freight services outside the EEA in the value of sales.
335    In the first place, the applicant observes that point 13 of the 2006 Guidelines does not provide for the inclusion of sales outside the EEA. As regards infringements the scope of which, as in the present case, exceeds the territory of the EEA, the re-assessment of the value of sales under point 18 of those guidelines is, in the applicant’s submission, to be carried out in the light of sales within the EEA. The latter point provides explicitly, moreover, that it applies in the event of market sharing. The applicant argues that this thus reflects not the cross-border nature of the services which are the subject of the infringement, but rather the fact that the cartel at issue implies an agreement between its members not to make cross-border sales.
336    In the second place, the applicant takes the view that the concept of ‘indirect sales’ within the meaning of point 13 of the 2006 Guidelines cannot be interpreted as meaning that it allows turnover generated outside the EEA to be included in the value of sales. According to the applicant, that point refers expressly to sales made ‘within the EEA’. The applicant argues, furthermore, that as the example mentioned in footnote 1 to those guidelines shows, any adjustment of indirect sales would relate to the total sales made by the undertaking in question within the EEA.
337    In the third place, the applicant claims that the reasoning set out in recital 1194 of the contested decision regarding the ‘specificities’ of freight services on EEA-third country routes is based on two assumptions which are erroneous in the light of the characteristics of the freight sector and of the facts of the present case.
338    The first of those assumptions is that the intercontinental characteristics of the services provided by the applicant could justify the geographic allocation of sales, whereas the latter depends solely on the place where those sales are made. The fact that the goods transported are delivered to an airport situated within the EEA also does not suggest that the value of the relevant sales should be divided equally between the country of origin and the country of destination.
339    The second of the assumptions in question is that a coordinated increase in surcharges would in itself increase the cost of the goods which the applicant had transported to the EEA from other continents. Moreover, even if that argument were substantiated, the ‘basic methodology’ of the 2006 Guidelines would not allow sales made outside the EEA to be included in the value of relevant sales on the basis of the existence of such an effect.
340    In the fourth place, the applicant claims that the general 50% reduction in no way alters its analysis. According to the applicant, the Commission claims ‘in principle’ to maintain the ‘basic methodology’ of the 2006 Guidelines and refers to point 37 thereof only in the context applying that reduction to what sales within the EEA would be.
341    In the fifth place, the applicant observes that the Commission never previously included turnover from sales outside the EEA in the value of sales, and that the approach taken in the contested decision constitutes a manifest infringement of its decision-making practice in relation to turnover which must be taken into account for the purposes of determining its jurisdiction in air transport matters in accordance with Regulation No 139/2004. In that connection, the applicant cites several Commission decisions and refers to the Consolidated Jurisdictional Notice.
342    In the sixth place, the applicant claims that the approach followed in the contested decision leads to a difference in treatment as compared with other industries, since the nature of the freight sector in no way justifies deviation from the basic concept of sales within the EEA. Neither the global nature of the air transport network nor the fact that the cost of production at the place of destination may have increased as a result of increased transport costs justifies that deviation.
343    The Commission disputes the applicant’s arguments.
344    In that connection, it should be borne in mind that point 13 of the 2006 Guidelines makes the inclusion of sales of the goods or services of the undertaking concerned subject to the condition that the sales in question were ‘goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA’.
345    Point 13 of the 2006 Guidelines thus does not refer to ‘sales negotiated’ or ‘sales invoiced’ within the EEA, but refers solely to ‘sales’ within the EEA. It follows that, contrary to what the applicant maintains, that point does not preclude the Commission from using sales to customers established outside the EEA, or require account to be taken of sales negotiated or invoiced in the EEA. Otherwise, an undertaking participating in an infringement would merely have to ensure that it negotiates its sales with subsidiaries of its customers located outside the EEA or invoices those sales to them in order to ensure that those sales would not be taken into account in the calculation of a potential fine, which would therefore be much smaller (see, to that effect, judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission, C‑615/15 P, not published, EU:C:2017:190, paragraph 55).
346    Contrary to the applicant’s further submission, the Commission is likewise not required, for the purposes of applying point 13 of the 2006 Guidelines, to opt for the criteria which may have been deemed relevant in the field of the control of concentrations, inter alia those identified in the notice referred to in paragraph 341 above. The aim of the latter is to provide guidance on jurisdictional issues arising in the context of merger control. It therefore does not bind the Commission as regards the method to be adopted for calculating the amount of fines in cartel cases, which is based on specific aims (judgment of 29 February 2016, Kühne + Nagel International and Others v Commission, T‑254/12, not published, EU:T:2016:113, paragraph 252; see also, to that effect, judgment of 9 September 2015, Samsung SDI and Others v Commission, T‑84/13, not published, EU:T:2015:611, paragraph 206).
347    As to the interpretation of the concept of ‘sales … within the EEA’ which the applicant seeks to draw from previous Commission decisions, it is sufficient to note that the Commission’s previous decision-making practice does not in itself serve as a legal framework for fines 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 it has not, in any event, been demonstrated that the facts of the cases in those other decisions, such as the markets, products, countries, undertakings and periods concerned, are comparable to those of the present case (see, to that effect, judgment of 29 June 2021, E.ON Ruhrgas and E.ON v Commission, T‑360/09, EU:T:2012:332, paragraph 262 and the case-law cited).
348    That concept must be interpreted in the light of the objective of point 13 of the 2006 Guidelines. As is clear from paragraphs 303 and 329 above, that objective is to take as a starting point for the calculation of fines an amount which reflects, inter alia, the economic significance of the infringement on the market concerned, since the turnover from the goods or services in respect of which the infringement was committed constitutes an objective criterion giving a proper measure of the harm which that practice does to normal competition (see judgment of 28 June 2016, Portugal Telecom v Commission, T‑208/13, EU:T:2016:368, paragraph 236 and the case-law cited).
349    It is thus for the Commission, for the purposes of determining whether sales were made ‘within the EEA’, within the meaning of point 13 of the 2006 Guidelines, to opt for a criterion which reflects the reality of the market, that is to say, which is the best for ascertaining the effects of the cartel on competition in the EEA.
350    In recitals 1186 and 1197 of the contested decision, the Commission stated that, in calculating the value of sales, it had taken into account the turnover from the sale of freight services on intra-EEA routes, EU-third country routes, EU-Switzerland routes and non-EU EEA-third country routes. As is apparent from recital 1194 of that decision, the sales relating to EU-third country and non-EU EEA-third country routes included both sales of freight services on outbound routes and sales of inbound freight services.
351    In the same recital, in order to justify the inclusion of turnover from the sale of those services in the value of sales, the Commission referred to the need to take account of their ‘specificities’. It thus observed, inter alia, that the single and continuous infringement related to those services and that the ‘anticompetitive arrangements [were] likely to have a negative impact on the internal market in respect of both [of them]’.
352    As is clear from paragraphs 112 to 208 above and contrary to what the applicant claims, it was foreseeable that the single and continuous infringement, including in so far as it related to inbound routes, would have substantial and immediate effects in the internal market or within the EEA and were thus liable to harm normal competition within the EEA. In recitals 1194 and 1241 of the contested decision, the Commission nevertheless recognised that part of the ‘harm’ relating to the conduct at issue on EEA-third country routes was likely to fall outside the EEA. It also emphasised that part of those services were provided outside the EEA. It therefore relied on point 37 of the 2006 Guidelines and granted the incriminated carriers a 50% reduction in the basic amount of the fine in respect of EEA-third country routes, the merits of which the applicant does not dispute.
353    In those circumstances, to hold that the Commission could not include in the value of sales 50% of the turnover achieved on those routes would amount to prohibiting it from taking into account, for the purposes of calculating the amount of the fine, sales which fall within the scope of the single and continuous infringement and which were liable to harm competition within the EEA.
354    It follows that the Commission was entitled to use 50% of the turnover generated on EEA-third country routes as an objective criterion giving a proper measure of the harm which the applicant’s participation in the cartel at issue did to normal competition, provided that that turnover resulted from sales having a link with the EEA (see, to that effect, judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 47).
355    Such a link exists in the present case as regards inbound routes, since, as is apparent from recitals 1194 and 1241 of the contested decision and as the Commission maintains in its written pleadings, inbound freight services are in part provided within the EEA. As stated in paragraph 172 above, inbound freight services are intended precisely to enable the transport of goods from third countries to the EEA. As the Commission rightly observes, part of their ‘physical’ service is by definition carried out in the EEA, where part of the transport of those goods takes place and the cargo plane lands.
356    In those circumstances, the Commission was entitled to find that the sales of inbound freight services had been made within the EEA within the meaning of point 13 of the 2006 Guidelines. Accordingly, point 18 of those guidelines, which was not applied in the contested decision and which the applicant acknowledges is not applicable in the present case, is irrelevant.
357    None of the applicant’s arguments is such as to invalidate that finding.
358    First, it should be observed that the applicant’s argument alleging that the Commission never previously included the turnover generated by sales made outside the EEA in the value of sales must be rejected for two reasons. On the one hand, that argument is based on the premiss that the sales of inbound services were made outside the EEA. As is apparent from paragraphs 344 to 356 above, that premiss is incorrect. On the other hand, in so far as that argument must be understood as meaning that the interpretation of the concept of ‘sales … within the EEA’ adopted in the contested decision is unprecedented, it should be observed that the Commission cannot be deprived of the possibility of taking account of the specificities of a particular case for the purposes of applying the 2006 Guidelines. On the contrary, as is apparent from paragraph 349 above, it is for the Commission to opt, for the purposes of applying point 13 of those guidelines, for a criterion that is a reflection of the reality of the market. To hold otherwise would tantamount to undermining the effective application of EU competition rules.
359    Second, as regards the difference in treatment which, the applicant alleges, results from the taking into account of the sales of inbound freight services, it should be recalled that it is for the party relying on an infringement of the principle of equal treatment clearly to identify comparable situations which, in its view, have been treated differently or different situations which have been treated identically (see, to that effect, judgment of 12 April 2013, Du Pont de Nemours (France) and Others v Commission, T‑31/07, not published, EU:T:2013:167, paragraph 311). In the present case, the applicant has failed to identify any sector of activity that has characteristics comparable to those of the freight sector and has nevertheless been treated differently by the Commission. The reference to ‘many half products or intermediary services [which] are delivered at a location other than the point of sale where competition for the product or service takes place’ is too vague to mitigate that omission. As to the liquid crystal display (LCD) panels to which the applicant refers, it is sufficient to observe that it has failed to demonstrate in any way that those panels can be assimilated to transport services such as those at issue in the present case.
360    Furthermore, inasmuch as the applicant relies on the infringement of Article 101 TFEU and of Article 49 of the Charter, it is sufficient to find that its argument is not at all supported and must, accordingly, be rejected.
361    This part of the plea must therefore be rejected.
(c)    The third part of the plea, alleging that the general 15% reduction is insufficient
362    The applicant claims that the general 15% reduction does not correspond to the degree of government intervention during the period of the single and continuous infringement. It takes the view that the South American and Asian markets represent a considerable proportion of the total freight market, which means that the general 15% reduction is disproportionate to the value of sales affected by the regulatory regime which the carriers faced. It points out that, previously, the Commission granted higher percentage reductions linked to the regulatory regime applicable. The same was true, it is argued, of the Court of Justice in its judgment of 16 December 1975, Suiker Unie and Others v Commission (40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, EU:C:1975:174). Furthermore, the applicant claims that the reduction in the present case was granted on the basis of the assessment of the operation of the air services agreements in general, without the particular circumstances relating to the routes or the addressees having been taken into account. A more substantial reduction in the fine would be more appropriate. Regard should be had to the jurisdictions in which regulatory pressures played a role and to the relative weight of those jurisdictions in relation to the infringement. Lastly, according to the applicant, the Commission and the Council took a position in favour of maintaining the application of the anticompetitive pricing provisions in the international air services agreements (‘the ASAs’).
363    When questioned by the Court regarding its criticism of the undifferentiated application of the general 15% reduction to all of the incriminated carriers, whereas ‘some countries raised most of the discussions on the implications of the regulatory frameworks’, the applicant stated that it did not intend thus to raise a separate complaint as to a breach of the principle of equal treatment in relation to the incriminated carriers who carried out a smaller proportion of their commercial activity in the territories or countries in question.
364    In essence, the applicant takes the view, in the light of the nature and context of the application of the general 15% reduction, that the Commission could act only in accordance with one of two alternatives, that is to say, either by concluding that ‘all’ inbound and outbound freight services were ‘also’ affected by regulatory regimes, or by taking into account the relative ‘weight’ in the single and continuous infringement of third countries in which those regulatory pressures played a part. It states that Japan, Hong Kong, India, Thailand, Singapore, Korea and Brazil accounted for almost a quarter of its commercial activity during the reference year for the calculation of the value of sales. A reduction greater than 15% should therefore have been granted irrespective of which of the two alternatives was selected.
365    The Commission disputes the applicant’s line of argument.
366    In that connection, 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.
367    Point 29 of the 2006 Guidelines provides that the basic amount may be reduced where the Commission finds that mitigating circumstances exist. That point sets out an indicative and non-exhaustive list of five types of mitigating circumstances which may be taken into account, including the authorisation or encouragement of the anticompetitive conduct in question by public authorities or by legislation.
368    In recital 1263 of the contested decision, the Commission found that there was no regulatory regime which required the incriminated carriers to collude on their tariffs. However, it found, in recitals 1264 and 1265 of that decision, that some regulatory regimes had encouraged the incriminated carriers to engage in anticompetitive conduct and, consequently, granted them the general 15% reduction, in accordance with point 29 of the 2006 Guidelines.
369    The applicant’s argument is not capable of calling those findings into question.
370    From the outset, it must be found that the first alternative set out in paragraph 364 above is based on an incorrect reading of the contested decision. It should be noted that, in recital 1265 of that decision, the Commission recognised that ‘certain regulatory regimes have encouraged certain aspects of the anti-competitive conduct’. It therefore did not consider that ‘all’ inbound and outbound freight services were ‘also’ affected by regulatory regimes.
371    As regards the second alternative, the infringement of the principle of proportionality is due, according to the applicant, to the fact that the general 15% reduction did not take due account of the proportion of sales in respect of which the single and continuous infringement was committed, which were made under regulatory regimes encouraging anticompetitive conduct.
372    If the aim of the general 15% reduction was to recognise that certain regulatory regimes had encouraged certain aspects of the anticompetitive conduct at issue (see paragraph 370 above), the fact remains that, in the absence of any irresistible constraint or pressures, those aspects constituted an infringement of the competition rules and was liable, as such, to be penalised. In that context, the applicant’s argument that the rate of reduction should be close to the proportion of sales concerned by the incentives in those regulatory regimes is based on an incorrect premiss, in that it seeks to deny the gravity of the anticompetitive conduct carried out in connection with sales in respect of which incentives were offered by States.
373    The fact that the Commission applied the same reduction rate to all of the incriminated carriers is not, as such, contrary to its obligation to take into account the relative gravity of the applicant’s participation in the single and continuous infringement. It is common ground that, in the present case, all the incriminated carriers operated in third countries and territories in which the regulatory regimes encouraged anticompetitive conduct. Furthermore, the applicant itself agrees that ‘logic dictates’ that the weight, in the commercial activity, of the countries and territories referred to in the contested decision in respect of incentives provided by their regulatory regimes ‘will not be greatly dissimilar’ depending on the incriminated carrier concerned. It thus states that ‘in particular Japan, Hong Kong, the Republic of Korea and Singapore are very important markets for all the [incriminated carriers]’.
374    As to the applicant’s argument relating to decisions by which the Commission ‘sometimes’, under Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air service agreements between Member States and third countries (OJ 2004 L 157, p. 7), allowed Member States to maintain anticompetitive pricing provisions set out in ASAs, it should be noted that the only decision referred to concerns the ASA concluded between the Netherlands and Surinam. The only element of that decision cited by the applicant seeks specifically to emphasise that ‘such agreements on tariffs … entered into directly by the carriers concerned [by the ASA] consist … of a restriction of competition by object within the meaning of Article [101 TFEU]’. Furthermore, as the Commission observes in particular in recital 1019 of the contested decision, without being contradicted on this point by the applicant, ‘to the extent that there are tariff provisions in the ASAs these are 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’. First, the Commission did not refer, in the latter decision, to the conduct of the applicant and any other carriers concerned on routes covered by the ASA concluded between the Netherlands and Surinam. Second, the contacts relating to the EEA-third country routes which the Commission identified against the applicant included a large number of multilateral discussions (see, in particular recitals 146, 152, 393, 394, 503 and 504 of the contested decision). Accordingly, the decision adopted by the Commission under Regulation No 847/2004, on which the applicant relies, cannot constitute an incentive for the latter to adopt the anticompetitive conduct at issue. It is, in any event, of particular importance in relation to the worldwide dimension of the cartel at issue.
375    As to the position taken by the Council, which, in its conclusions of 27 and 28 June 2005 on external relations in the aviation sector, ‘expressly held that commercial interests were relevant in assessing whether or not airlines should observe anticompetitive provisions of ASAs’ according to the applicant, it must be observed that that position has no binding legal effects and that the applicant, which has the necessary means to obtain precise and accurate legal information, cannot rely on that position in order to mitigate the gravity of its own conduct (see, to that effect, judgment of 29 March 2012, Telefónica and Telefónica de España v Commission, T‑336/07, EU:T:2012:172, paragraph 458).
376    As regards the references to previous Commission decisions, it is sufficient to recall that the mere fact that the Commission has in its previous decisions granted a certain rate of reduction for specific conduct does not imply that it is required to grant the same reduction when assessing similar conduct in a subsequent administrative procedure (see judgment of 6 May 2009, KME Germany and Others v Commission, T‑127/04, EU:T:2009:142, paragraph 140 and the case-law cited). The applicant cannot, therefore, rely on the reduction in the amount of fines granted in those other cases.
377    As to the applicant’s reliance on the judgment of 16 December 1975, Suiker Unie and Others v Commission (40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, EU:C:1975:174), it must be held that the case which gave rise to that judgment differs from the present case. In particular, the legislation at issue in that case ‘left competition only a residual area’, which is neither alleged nor, a fortiori, demonstrated in the present case as regards freight services.
378    This part of the plea must therefore be rejected, as, accordingly, must the fourth plea. The claims for annulment must, as a consequence, be rejected in their entirety.
C.      The claim for alteration of the amount of the fine imposed on the applicant
379    The applicant is asking the Court, in essence, to exercise its unlimited jurisdiction to reduce the amount of the fine imposed on it in the event that it finds that there is no need to annul the contested decision in so far as it concerns the applicant.
380    As a preliminary point, it should be noted that the applicant has failed expressly to identify the complaints on which it intends to rely in support of its claim. It merely refers to ‘its pleas for annulment’ – more specifically the first, second and fourth pleas –and states that the fourth plea relied on in support of the claim for annulment seeks, in the alternative, a reduction in the amount of the fine. It must therefore be held that the applicant relies, in support of this claim, on arguments which are essentially identical to those on which it relied in support of its claim for annulment, in so far as these are relevant for the purposes of the exercise of the Court’s unlimited jurisdiction. In addition to those arguments, there are two more on which the applicant relies in its replies to the Court’s measures of organisation of procedure and which concern sales on non-EU EEA-Switzerland routes.
381    The first four arguments essentially concern the calculation of the value of sales:
–        by its first argument, the applicant claims that account should be taken of the value of the surcharges only and not the total price of freight services (first part of the fourth plea);
–        by its second argument, the applicant claims that the turnover from inbound freight services cannot be included in the value of sales (second plea and second part of the fourth plea);
–        by its third argument, the applicant takes the view that account should be taken of the ‘relatively low’ economic impact of the single and continuous infringement on the EEA market (first part of the fourth plea);
–        by its fourth argument, in response to the Court’s measures of organisation of procedure, the applicant claims that the revenues generated from freight services, which it made on non-EU EEA-Switzerland routes, cannot be included in the value of sales.
382    The fifth and sixth arguments relate, in essence, to the gravity factor. The fifth argument refers to the alleged lack of jurisdiction on the part of the Commission to find and penalise an infringement of competition rules on inbound routes (second plea). By the sixth argument, put forward in response to the Court’s measures of organisation of procedure, the applicant claims, in essence, that the exclusion from the geographic scope of the single and continuous infringement of non-EU EEA-Switzerland routes is such as to justify a reduction in the gravity factor.
383    The seventh argument relates, in essence, to the adjustments to be made to the basic amount (third part of the fourth plea). According to that argument, the general 15% reduction is inappropriate. In response to the Court’s measures of organisation of procedure, the applicant adds that, if the plea raised by the Court of its own motion were upheld, the relevant context, in the light of the findings of the Swiss Competition Commission concerning the ASA between the Kingdom of Norway and the Swiss Confederation, strengthens its arguments in favour of an additional reduction in the level of the fine on the basis of the regulatory regimes.
384    The Commission contends that the applicant’s claims should be rejected and requests, in essence, that the benefit of the general 15% reduction be withdrawn from it, should the Court hold that the turnover from the sale of inbound freight services cannot be included in the value of sales.
385    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 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).
386    That exercise involves, in accordance with Article 23(3) of Regulation No 1/2003, taking into consideration, with respect to each undertaking sanctioned, the gravity 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 in 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 for the applicant to raise pleas in law against that decision 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).
387    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).
388    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).
389    Lastly, in order to determine the amount of the fine imposed, 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 take into account all of the factual circumstances (see, to that effect, 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).
390    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.
391    The Court considers that it is not appropriate, in order to determine the amount of the fine to be imposed on the applicant, 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 fourth 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 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).
392    In those circumstances, first of all, it should be observed that the total value of sales made by the applicant in 2005 was EUR 833 845 177, taking into account the accession of 10 new Member States as from May 2004. It should be noted that that value included revenues of EUR 5 595 generated on non-EU EEA-Switzerland routes which the Court has held, in paragraphs 209 to 232 above, did not fall within the scope of the single and continuous infringement. That sum of EUR 5 595 must therefore be excluded from the total value of sales, in accordance with the fourth argument.
393    As regards the infringement period found against the applicant prior to May 2004, as the Commission observed in recital 1197 of the contested decision, it is necessary to take as a basis, on the intra-EEA routes and the EU-Switzerland routes, values of sales amounting to EUR 5 539 430 and EUR 820 043, respectively, taking into account only those States which were already Contracting Parties of the EEA Agreement or Member States of the European Union before May 2004.
394    Moreover, as regards the first argument, which essentially concerns the inclusion of the full price of freight services in the value of sales, this refers back to the first part of the fourth plea on which the applicant relied in support of the claim for annulment. The Court has examined and rejected that part of the plea in paragraphs 299 to 333 above, and nothing in the arguments raised by the applicant in support thereof makes it possible to consider that the inclusion of the full price of freight services in the value of sales was such as to arrive at an inappropriate value of sales. On the contrary, to exclude elements of the price of freight services, other than surcharges, from the value of sales would be tantamount to artificially minimising the economic significance of the single and continuous infringement.
395    In so far as concerns the second argument, which relates to the inclusion of turnover from the sale of inbound freight services in the value of sales, it should be noted that this refers back to the second part of the fourth plea on which the applicant relies in support of the claim for annulment. The Court has examined and rejected that plea in paragraphs 334 to 361 above and nothing in the arguments put forward in support thereof suggests that the inclusion in the value of sales of turnover from the sale of inbound freight services was such as to arrive at an inappropriate value of sales. On the contrary, to exclude that turnover from the value of sales would prevent a fine being imposed on the applicant which is a proper measure of the harm which its participation the cartel at issue does to normal competition (see, to that effect, judgment of 28 June 2016, Portugal Telecom v Commission, T‑208/13, EU:T:2016:368, paragraph 236).
396    As to the third argument, which relates to the allegedly minor impact of the single and continuous infringement on the EEA market, it is sufficient to recall that the amount of a fine cannot be regarded as inappropriate solely because it does not reflect the economic harm which has been or which may have been caused by the alleged infringement (judgment of 29 February 2016, Schenker v Commission, T‑265/12, EU:T:2016:111, paragraph 287) That argument therefore does not justify a reduction of the gravity factor.
397    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%.
398    The fifth and sixth arguments do not demonstrate the contrary. Those arguments presupposed that the Court would uphold the second plea and the plea raised of the Court’s own motion, respectively. Since these have been rejected, those arguments must be rejected.
399    As regards the additional amount, it must be borne in mind that point 25 of the 2006 Guidelines provides that irrespective of the duration of an undertaking’s participation in the infringement, the Commission is to include in the basic amount a sum of between 15% and 25% of the value of sales in order to deter undertakings from entering into horizontal price-fixing, market-sharing and output-limitation agreements. That point states that, in order to decide on the proportion of the value of sales to be taken into account in a given case, the Commission is to have regard to a number of factors, in particular those referred to in point 22 of those guidelines. These factors are those 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 undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.
400    The Courts of the European Union have inferred from this that, even if the Commission did not give specific 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 to assess the gravity of the infringement was sufficient in that regard (judgment of 15 July 2015, SLM and Ori Martin v Commission, T‑389/10 and T‑419/10, EU:T:2015:513, paragraph 264).
401    In recital 1219 of the contested decision, the Commission found that the ‘percentage to be applied for the additional amount should be 16%’ in the light of the ‘specific circumstances of the case’ and the criteria used to determine the gravity factor.
402    It follows that, on the same grounds as those set out in recitals 1198 to 1212 of the contested decision, the Court finds that an additional amount of 16% is appropriate.
403    Moreover, it is clear from recitals 1214 to 1217 of the contested decision that the duration for which the applicant is held liable for the single and continuous infringement amounts to six years and one month on intra-EEA routes, one year and nine months on EU-third country routes, three years and eight months on EU-Switzerland routes and eight months on non-EU EEA-third country routes. Since the Commission has lawfully established the duration of the applicant’s participation in the single and continuous infringement, it is appropriate to apply multipliers of 61⁄12, 19⁄12, 38⁄12 and 8⁄12, respectively.
404    The basic amount of the fine must therefore be set at EUR 368 617 828.
405    Consequently, the basic amount of the fine after applying the general 50% reduction, which applies only to the basic amount in so far as it concerns non-EU EEA-third country routes and EU-third country routes (see recital 1241 of the contested decision), which the applicant has not disputed in the claim for annulment and which is not inappropriate, should be set, after rounding off, at EUR 187 000 000. In that regard, the Court considers it appropriate to round that basic amount downwards to the first two digits, except where that reduction represents more than 2% of the amount before rounding off, in which case that amount is rounded up to the first three digits. This method is objective, affords all the incriminated carriers which have brought an action against the contested decision a reduction and avoids any unequal treatment (see, to that effect, judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 166).
406    Lastly, as regards adjustments to the basic amount of the fine, it should be borne in mind that the applicant was granted the general 15% reduction, the sufficiency of which it disputes in the third part of the fourth plea relied on in support of the claim for annulment, as well as in the seventh argument. First, for reasons similar to those set out in paragraphs 362 to 378 above, it must be held that nothing in the arguments relied on in that context is capable of demonstrating that that reduction is inappropriate. Second, routes between Switzerland and Norway fall outside the scope of the single and continuous infringement (see paragraphs 209 to 232 above). The obligations arising from the ASA between the Kingdom of Norway and the Swiss Confederation cannot therefore be taken into account for the purposes of examining the appropriateness of the general 15% reduction. Conversely, the Commission’s request that the benefit of that reduction be withdrawn from the applicant cannot be upheld. As is apparent from the rejoinder, that request assumes that the Court would hold that the turnover from the sale of inbound freight services could not be included in the value of sales. The Court has declined to do so in paragraph 395 above.
407    Furthermore, it must be held that the 20% leniency reduction granted to the applicant remains appropriate.
408    It follows that the final amount of the fine to be imposed on the applicant is EUR 127 160 000, for payment of which it is jointly and severally liable with AF-KLM for EUR 124 440 000 and solely liable for EUR 2 720 000 in respect of its participation in the single and continuous infringement before 5 May 2004, the date on which AF acquired control of KLM, as is apparent from recital 1089 of the contested decision.
409    Since the amount of the fines imposed by the Commission in the contested decision is identical to that which the Court has set in the exercise of its unlimited jurisdiction, there is no need, therefore, to alter the amount of the fines set by the Commission in Article 3(c) and (d) of the contested decision. Consequently, the claim for alteration of the amount of the fine imposed on the applicant must be rejected.
IV.    Costs
410    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
411    Under Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his or her own, or even that he or she is not to be ordered to pay any. Furthermore, under Article 135(2) of those rules, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if that party has made the opposite party incur costs which the Court holds to be unreasonable or vexatious.
412    In the present case, the applicant has been unsuccessful and the Commission has expressly applied for costs. However, the Court considers that the circumstances of the case justify ordering the Commission to bear one third of its own costs and the applicant to bear its own costs and pay two thirds of those incurred by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber, Extended Composition)
hereby:
1.      Dismisses the action;
2.      Orders the European Commission to bear one third of its own costs;
3.      Orders Koninklijke Luchtvaart Maatschappij NV to bear its own costs and pay two thirds of those incurred by the Commission.
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. Decision of 9 November 2010
C. Action challenging the Decision of 9 November 2010 before the Court
D. Contested decision
II. Procedure and forms of order sought
III. Law
A. The observations on the giving of effect to the judgment of 16 December 2015, Koninklijke Luchtvaart Maatschappij v Commission (Case T28/11)
B. The claim for annulment
1. The second plea in law, alleging lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services
(a) The first part of the plea, alleging incorrect interpretation of Regulation No 411/2004
(b) The second and third parts, alleging, respectively, an error in the application of the implementation test and an error in the application of the qualified effects test
(1) The effects of coordination in relation to inbound freight services taken in isolation
(i) The relevance of the effect at issue
(ii) The foreseeability of the effect at issue
(iii) The substantiality of the effect at issue
(iv) The immediacy of the effect at issue
(2) The effects of the single and continuous infringement taken as a whole
2. The plea, raised of the Court’s own motion, alleging lack of jurisdiction on the part of the Commission, in the light of 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
3. The first plea, alleging infringement of the prohibition on arbitrariness, the principle of equal treatment and the obligation to state reasons
4. The third plea in law, alleging breach of the obligation to state reasons and a manifest error of assessment in the treatment of the refusal to pay commission as a separate element of the single and continuous infringement
(a) The scope of the third plea
(b) The first part of the plea, alleging contradictory reasoning
(c) The second part of the plea, alleging manifest error of assessment
(1) The admissibility of the present part
(2) The merits of the present part of the plea
5. The fourth plea in law, alleging infringements of Article 101 TFEU, of Article 49 of the Charter and of the 2006 Guidelines in setting the amount of the fine
(a) The first part of the plea, alleging errors relating to the inclusion of all of the revenue generated by the sale of freight services in the value of sales
(1) The first complaint, alleging infringement of point 13 of the 2006 Guidelines
(2) The second complaint, alleging infringement of the principle of proportionality
(3) The third complaint, alleging breach of the principle of legality
(b) The second part of the plea, alleging infringement of Article 101 TFEU, of Article 49 of the Charter and of the 2006 Guidelines
(c) The third part of the plea, alleging that the general 15% reduction is insufficient
C. The claim for alteration of the amount of the fine imposed on the applicant
IV. Costs
*      Language of the case: English.