JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

29 February 2016 ( *1 )

‛Competition — Agreements, decisions and concerted practices — International air freight forwarding services — Decision finding an infringement of Article 101 TFEU — Price fixing — Surcharges and charging mechanisms affecting the final price — Evidence contained in an application for immunity — Protection of the confidentiality of communications between lawyers and clients — Code of Conduct rules on duty of loyalty and prohibition on double representation — Fiduciary duties — Whether trade between Member States affected — Whether unlawful conduct can be attributed — Choice of companies — Fines — Proportionality — Gravity of the infringement — Mitigating circumstances — Equal treatment — Cooperation — Settlement — 2006 Guidelines on the method of setting fines’

In Case T‑265/12,

Schenker Ltd, established in Feltham (United Kingdom), represented by F. Montag, B. Kacholdt and F. Hoseinian, lawyers, and by D. Colgan and T. Morgan, Solicitors,

applicant,

v

European Commission, represented initially by A. Dawes and N. von Lingen, and subsequently by A. Dawes and G. Meessen, acting as Agents, and by B. Kennelly and H. Mussa, Barristers,

defendant,

APPLICATION for annulment of 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 — Freight forwarding), in so far as it concerns the applicant, and for variation of the fine imposed on it in that decision,

THE GENERAL COURT (Ninth Chamber),

composed of G. Berardis, President, O. Czúcz (Rapporteur) and A. Popescu, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 24 September 2014,

gives the following

Judgment

Background to the dispute and the contested decision

1 By 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 — Freight forwarding) (‘the contested decision’), the European Commission found that companies active in the sector of international air freight forwarding services had, in periods between 2002 and 2007, participated in various agreements and concerted practices in the sector of international air freight forwarding services, giving rise to four separate infringements of Article 101(1) TFEU and Article 53(1) of the Agreement on the European Economic Area (EEA).

2 The applicant, Schenker Ltd, is owned by Deutsche Bahn AG (‘DB’), a joint-stock company governed by German law and wholly owned by the Federal Republic of Germany. DB is the holding company of a group of companies (‘the DB group’) providing mobility and logistics services worldwide. Under the brand DB Schenker, and in particular via the Schenker group of companies, consisting of a number of entities, including the applicant, the DB group provides, in particular, air freight forwarding services. [confidential] ( 1 ) The Brink’s Company (‘Brink’s’) sold to DB a group of companies run by Bax Global Inc., one of which was Bax Global Ltd (UK). After its business was transferred to the applicant, Bax Global (UK) ceased trading and ceased to exist.

3 This case concerns only one of the four infringements referred to in paragraph 1 above, namely the new export system (‘NES’) cartel. This case does not concern the currency adjustment factor (‘CAF’) cartel, the advanced manifest system (‘AMS’) cartel and the peak season surcharge (‘PSS’) cartel. In so far as, by the contested decision, the Commission penalised other companies in the DB group for their participation in the CAF, AMS and PSS cartels, those companies have brought a separate action, which forms the subject matter of Case T‑267/12.

4 The cartels referred to in paragraph 3 above concern the market in international air freight forwarding services. According to the Commission’s description of that sector in recitals 3 to 71 of the contested decision, freight forwarding services may be defined as the organisation of transportation of items, which may also include activities such as customs clearance, warehousing or ground services, on behalf of customers according to their needs. The freight forwarding business has been segmented into domestic and international freight forwarding and into freight forwarding by air, land and sea (recital 3 of the contested decision).

5 The description which the Commission provided of the NES cartel in recitals 92 to 114 of the contested decision may be summarised as follows: the NES is a pre-clearance system for exports from the United Kingdom to countries outside the European Economic Area which was introduced by the United Kingdom authorities in 2002. At a meeting, several freight forwarders agreed to introduce a surcharge for NES declarations, agreed on the levels of the surcharge and on the timing of its application. Following that meeting, those freight forwarders exchanged several emails in order to monitor the implementation of the agreement on the market. The anticompetitive contacts lasted from 1 October 2002 until 10 March 2003.

6 The discussions concerning the AMS cartel and the monitoring of its implementation took place, in particular, in the context of the Freight Forward International Association (known as Freight Forward Europe before 1 January 2004; ‘the FFI Association’).

7 It is stated in recital 72 of the contested decision that the Commission began its investigation following the application for immunity submitted by Deutsche Post AG (‘DP’) under the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the 2006 Leniency Notice’). DP supplemented its application for immunity by oral statements and documentary evidence. By letter of 24 September 2007, the Commission granted conditional immunity to DP with respect to an alleged cartel among the private providers of international air freight forwarding services, aimed at fixing or passing on various fees and surcharges.

8 The Commission carried out unannounced inspections between 10 and 12 October 2007.

9 [confidential] DB and its subsidiaries submitted an application for immunity or, failing that, an application for a reduction of the fine pursuant to the leniency programme (recital 76 of the contested decision).

10 On 5 February 2010 the Commission sent a statement of objections to the applicant, to which it replied (recitals 87 and 89 of the contested decision).

11 Between 6 and 9 July 2010, the Commission held a hearing, in which the applicant took part (recital 89 of the contested decision).

12 In the contested decision, having regard to the evidence in its possession, the Commission held that, as the economic successor of Bax Global (UK), the applicant was liable for the participation of Bax Global (UK) in the NES cartel.

13 In Article 1(1)(a) of the contested decision, the Commission found that, in relation to the NES cartel, as an economic successor of Bax Global (UK), the applicant had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating from 1 October 2002 until 10 March 2003 in a single and continuous infringement in the air freight forwarding services sector which covered the territory of the United Kingdom, and which consisted in fixing prices or other trading conditions. Article 2(1)(a) of the contested decision provides that, for that infringement, a fine amounting to EUR 3673000 was imposed on the applicant. The applicant received no reduction of its fine for cooperation with the Commission.

14 It is stated in recital 856 of the contested decision that the fine imposed was calculated on the basis of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’).

Procedure before the General Court and forms of order sought

15 By application lodged at the Court Registry on 12 June 2012, the applicant brought this action.

16 On the proposal of the Judge-Rapporteur, the Court (Ninth Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure under Article 64 of the Rules of Procedure of 2 May 1991, sent questions to which the parties were invited to reply. The parties complied with that request within the period prescribed.

17 By letter of 5 September 2014, the applicant lodged observations on the report for the hearing.

18 The parties presented oral argument and replied to questions put by the Court at the hearing on 24 September 2014.

19 The applicant claims that the Court should: — annul Article 1(1)(a) of the contested decision; — annul in its entirety or, in the alternative, reduce the fine imposed in Article 2(1)(a) of the contested decision; — order the Commission to pay the costs.

20 The Commission contends that the Court should: — dismiss the action; — order the applicant to pay the costs.

Law

21 In support of its action, the applicant relies on seven pleas in law.

22 The first plea in law alleges (i) infringement of Articles 4, 7 and 27(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1), breach of the rights of the defence and of the right to a fair hearing, and (ii) breach of the principle of sound administration. In essence, the applicant claims that the information and evidence contained in DP’s application for immunity were inadmissible.

23 By the second plea, the applicant claims that the Commission had no power to adopt a decision concerning the NES cartel, since that cartel was exempt from the application of European Union competition law pursuant to Article 1 of Regulation No 141 of the Council of 26 November 1962 exempting transport from the application of Council Regulation No 17 (OJ, English Special Edition, Series I 1959-1962, p. 291).

24 In the third plea in law, the applicant claims that, in finding that the NES cartel was capable of having an appreciable effect on trade between Member States, the Commission infringed Article 101(1) TFEU, Articles 4 and 7 of Regulation No 1/2003 and the principle of sound administration and failed to have due regard to the Guidelines on the effect on trade concept contained in Articles [101 TFEU] and [102 TFEU] (OJ 2004 C 101, p. 81; ‘the 2004 Effects Notice’).

25 The fourth plea relates to an infringement of Article 101(1) TFEU, Article 296 TFEU, Article 41 of the Charter of Fundamental Rights of the European Union and Articles 4, 7 and 23(2) of Regulation No 1/2003, and also breach of the principles of personal liability and sound administration, in that only the applicant was held to be liable for the conduct of Bax Global (UK).

26 By the fifth plea in law, first, the applicant claims that, in setting the amount of the fine on the basis of a turnover exceeding the maximum theoretical amount that could have been generated by the NES cartel, the Commission infringed Articles 23(2) and (3) of Regulation No 1/2003 and was in breach of the principle of proportionality, the principle that punishment must fit the offence, the principle nulla poena sine culpa, the principle of sound administration, failed to have due regard to the 2006 Guidelines and committed errors of assessment. Second, the applicant argues that the Commission infringed Article 27(1) and (2) of Regulation No 1/2003 and the rights of the defence.

27 By the sixth plea in law, the applicant argues that, in evaluating the applications for immunity and for a reduction in the fine, the Commission infringed Article 23(2) of Regulation No 1/2003 and the principle of equal treatment, failed to have due regard to the 2006 Leniency Notice and committed an error of assessment.

28 The seventh plea in law is to the effect that the Commission infringed Article 23(2) of Regulation No 1/2003 and the principle of equal treatment, and committed an error of assessment in refusing to enter into settlement talks, in accordance with the Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation No 1/2003 in cartel cases (OJ 2008 C 167, p. 1; ‘the Commission Notice on settlement procedures’).

29 In its written pleadings the applicant explains that the first to fourth pleas in law are relied on in support of the application for the annulment of Article 1(1)(a) of the contested decision and are also directed, ‘consequently’, to the annulment of Article 2(1)(a) of the contested decision. The fifth to seventh pleas in law and, in the alternative, the fourth plea in law are relied on in support of the application for the annulment of Article 2(1)(a) of the contested decision.

30 The applicant also calls on the Court to exercise its unlimited jurisdiction, the fifth, sixth and seventh pleas in law being expressly relied on in that regard. Further, as part of the fourth plea in law, the applicant claims that the amount of the fine should be reduced by the Court in the exercise of its unlimited jurisdiction.

31 In that context, it must be recalled that the review of legality of decisions adopted by the Commission 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.

32 That jurisdiction empowers the Courts, 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 periodic penalty payment imposed. Where the findings on which the Commission has relied in order to determine the amount of the fine or periodic penalty payment imposed are vitiated by an illegality, but where the final amounts have to be regarded as appropriate, the unlimited jurisdiction empowers the Courts to maintain the amount of the fine.

33 It is therefore for the Court, in the exercise of its unlimited jurisdiction, to assess, on the date on which it adopts its decision, whether the fine imposed on the applicant was one whose amount properly reflects the gravity and duration of the infringement in question (see, to that effect, judgment of 27 September 2012 in Shell Petroleum and Others v Commission, T‑343/06, ECR, EU:T:2012:478, paragraph 117 and the case-law cited).

34 It must, however, be pointed out that the exercise of unlimited jurisdiction does not amount to a review of the Court’s own motion, and borne in mind that proceedings before the Courts of the European Union are inter partes (judgment of 8 December 2011 in KME Germany and Others v Commission, C‑389/10 P, ECR, EU:C:2011:816, paragraph 131).

1. The first plea in law: (i) infringement of Articles 4, 7 and 27(2) of Regulation No 1/2003, breach of the rights of the defence and the right to a fair hearing and (ii) an infringement of the principle of sound administration

35 This plea in law is aimed at the Commission’s conclusion in recital 658 of the contested decision, that it was entitled to use information and evidence contained in DP’s application for immunity.

36 The plea can be broken down into two parts. First, the applicant claims that, by using the information and evidence contained in DP’s application for immunity, the Commission infringed Articles 4, 7 and 27(2) of Regulation No 1/2003, the rights of the defence and the right to a fair hearing. Second, the applicant claims that the Commission was in breach of the principle of sound administration by not taking due account of the arguments which it put forward during the administrative procedure.

The first part: infringement of Articles 4, 7 and 27(2) of Regulation No 1/2003, the rights of the defence and the right to a fair hearing

37 The applicant argues that, by using the information and evidence contained in DP’s application for immunity, the Commission infringed Articles 4, 7 and 27(2) of Regulation No 1/2003, the rights of the defence and the right to a fair hearing, recognised by EU law and enshrined in Article 47 and Article 48(2) of the Charter of Fundamental Rights, and in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.

38 According to the applicant, in this case, the Commission was not entitled to use the information and evidence contained in DP’s application for immunity, should have closed the investigation or, at the least, should have disregarded that information and evidence in the file. First, since the law firm C. acted for DP with respect to drawing up and submitting that application for immunity, that firm was in breach of its obligation of professional secrecy and of the prohibition on double representation or the principle of loyalty to former clients. According to the applicant, that law firm played a dual role. On the one hand, it had been the legal adviser of the FFI Association and its individual members, one such being the applicant. On the other hand, at the same time or, at the least, shortly after that relationship came to an end, when it was still subject to legal obligations resulting from its having acted as legal adviser to the FFI Association and its individual members, that firm assisted DP, at least as from 27 July 2006, in collecting, compiling, analysing and submitting information indicating potential breaches of European Union competition rules to a number of competition authorities, including the Commission. Second, DP was in breach of its fiduciary duties as President and Secretary of the FFI Association. The reason why DP chose to be assisted by the law firm C. in its immunity application was undoubtedly that DP wished to benefit from the particular relationship between that firm and the FFI Association and the privileged information that firm therefore possessed. Since the conduct concerning the AMS cartel, in which members of the FFI Association were involved, and the conduct concerning the NES cartel were closely related, the Commission was also not entitled to use the information and evidence contained in DP’s application for immunity with respect to the NES cartel.

39 The Commission disputes those arguments. In particular, the Commission contends that, in so far as, in the reply, the applicant claims that under EU law a lawyer is prohibited from using knowledge and information obtained from his client to the disadvantage of that client, that is a new plea in law, which has to be regarded as being inadmissible.

40 In that regard, it must be recalled that the principle which prevails in EU law is that the evidence may be freely adduced (judgment of 8 July 2004 in Dalmine v Commission, T‑50/00, ECR, EU:T:2004:220, paragraph 72).

41 As a general rule, no provision or general principle of EU law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings. If that were not the case, the burden of proving conduct contrary to Articles 101 TFEU and 102 TFEU, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the FEU Treaty (judgment of 8 July 2004 in JFE Engineering and Others v Commission, T‑67/00, T‑68/00, T‑71/00 and T‑78/00, ECR, EU:T:2004:221, paragraph 192).

42 However, the powers available to the Commission during the preliminary phases of investigation and collection of information must be reconciled with compliance with the fundamental rights and general principles of EU law, which apply in all procedures under the European Union competition rules.

43 That case-law and those principles must guide the Court in its examination of the submissions concerning, first, an infringement of the obligation of professional secrecy, second, the prohibition on dual representation and the principle of loyalty and, third, DP’s fiduciary duties.

The submission concerning an infringement of the obligation of professional secrecy

44 The applicant argues that, since the law firm C. infringed the obligation of professional secrecy, the information and evidence contained in DP’s immunity application are inadmissible and ought not to have been used by the Commission.

45 In that context, it must be recalled that the confidentiality of communications between lawyers and clients is protected at the level of EU law (see, to that effect, judgment of 18 May 1982 in AM & S Europe v Commission, 155/79, ECR, EU:C:1982:157, paragraphs 18 to 28).

46 Accordingly, as regards investigative measures taken by the Commission which relate to communications between lawyers and clients, it is apparent from settled case-law that the protection of their confidentiality precludes the Commission reading the content of such communications. Further, were the Commission to have read them, the protection of confidentiality would preclude the Commission using such communications as the basis for a decision imposing a fine for an infringement of European Union competition law (see, to that effect, judgment of 17 September 2007 in Akzo Nobel Chemicals and Akcros Chemicals v Commission, T‑125/03 and T‑253/03, ECR, EU:T:2007:287, paragraphs 86 to 88 and the case-law cited).

47 The applicant claims that, in this case, the protection of the confidentiality of communications between lawyers and clients also precluded the Commission from using the information and evidence contained in DP’s immunity application. Since the purpose of confidentiality of communications between lawyers and clients is to enable clients to be wholly candid in what they confide to their lawyers, without fear of later disclosure of their communications which could be prejudicial to their interests, those communications should be protected not only in relation to investigative measures taken by the Commission, but also in relation to disclosure by a lawyer which is contrary to the obligation of professional secrecy.

48 In that regard, suffice it to state that it is apparent from recital 658 of the contested decision that all the information and evidence which DP submitted in its application for immunity was available to all the members of the FFI Association. Consequently, according to the Commission’s findings, the information and evidence contained in DP’s immunity application was available to DP, irrespective of whether there was a breach, by the law firm C., of the obligation of professional secrecy.

49 The applicant does not put forward any argument which can call into question that finding. It is clear that, notwithstanding the fact that the undertaking to which the applicant was affiliated was a member of the FFI Association and that it was therefore well placed to monitor whether that finding by the Commission was well founded, there is nothing in DP’s application for immunity which the applicant identifies as having been disclosed by the law firm C. in breach of the obligation of professional secrecy, and the applicant does no more than claim that the reason why DP chose to be advised by the law firm C. with respect to the preparation of its immunity application could have been only that it wanted to ‘benefit from … privileged circumstances’ with respect to the earlier link between that firm and the FFI Association and its members.

50 Consequently, the Court must reject the submission concerning an infringement of the obligation of professional secrecy, and there is no need to rule on the question whether the protection of the confidentiality of communications between lawyers and clients precludes the Commission using documents which have been submitted to it by an undertaking after those documents may have been disclosed to that undertaking by a lawyer in breach of the obligation of professional secrecy.

The submission concerning an infringement of the prohibition on double representation and the principle of loyalty

51 The applicant claims that the evidence contained in DP’s immunity application was inadmissible by reason of the fact that, by acting for DP with regard to the preparation and submission of its application for immunity, the law firm C. was in breach of the prohibition on double representation and the principle of loyalty laid down by the Charter of Core Principles of the European Legal Profession and the Code of Conduct for European Lawyers.

52 In that regard, first, it must be observed that there are no provisions of EU law which state that the Commission is not entitled to use information and evidence submitted to it by an undertaking in an application for immunity, where the lawyer who has acted for that undertaking has infringed the prohibition on double representation or the duty of loyalty to his or her former clients.

53 Secondly, having regard to the fact that the fundamental rights and general principles of EU law must also be respected by the Commission during the preliminary phases of investigation and collection of information (see paragraph 42 above), the Court must examine whether, in this case, the Commission could properly use the information and the evidence contained in DP’s immunity application.

54 In that context, first, it must be observed that the prohibition on double representation and the duty of loyalty relied on by the applicant are intended not only to ensure the independence and loyalty of lawyers, but also to ensure that lawyers are not placed in a situation where, because of a conflict between the interests of their various clients, they are likely to find themselves in breach of the obligation of professional secrecy.

55 Yet, even on the assumption that (i) the Code of Conduct relied on by the applicant is to be deemed to be the expression of general principles which must be taken into account in the procedure before the Commission and (ii) the conduct of the law firm C. did not comply with that code, it is clear that, in the circumstances of this case, the Commission did not err in concluding that it was entitled to use the information and evidence contained in DP’s immunity application.

56 As stated in paragraphs 48 and 49 above, in the circumstances of this case, the Commission was entitled to take the view that the information and evidence contained in that application were produced by DP and were therefore not the fruit of a breach of the obligation of professional secrecy committed by the law firm C. Further, an undertaking is under no obligation to be advised by or represented by a lawyer with respect to the preparation and submission of an immunity application. In the light of those circumstances, even if both assumptions referred to in paragraph 55 above apply, the Commission was entitled to use the information and evidence contained in DP’s immunity application. In that context, it must also be observed that any breach, by the law firm C., of the rules of a national code of conduct applicable to it could be punished under national law.

57 Consequently, the Court must reject the submission concerning a breach of the prohibition on double representation and the principle of loyalty, and there is no need to rule on whether those represent the expression of general principles which must be taken into account in the procedure before the Commission and whether the conduct of the law firm C. complied with those principles.

The submission concerning a breach of DP’s fiduciary duties

58 The applicant claims that DP’s immunity application was inadmissible by reason of the fact that DP was in breach of the fiduciary duties incumbent on it because of its position as President and Secretary of the FFI Association.

59 First, in so far as the subject of that submission by the applicant is intended to be the very decision made by DP to cooperate with the Commission, the submission must be rejected. In that regard, first, it must be recalled that the powers available to the Commission during the preliminary phases of investigation and collection of information are not available to undertakings. That is particularly true with respect to an instrument such as the 2006 Leniency Notice, taking into consideration the fact that the Commission’s aim in that notice is to encourage undertakings to reveal the existence of unlawful cartels and to cooperate with its investigation, by reporting the conduct of undertakings which took part in the cartels.

60 Second, in so far as the subject of this submission is solely DP’s decision to be advised specifically by the law firm C., the submission must again be rejected. Even on the assumption that, by choosing to be advised by the law firm C., DP was in breach of its fiduciary duties, having regard to the interests at stake in this case, that would not preclude the Commission using the information and evidence contained in its application for immunity (see paragraph 56 above). In that context, it must also be stated that, if the duties relied on by the applicant are not themselves to be regarded as prohibited and legally void pursuant to Article 101(2) TFEU, the breach of the duties relied on by the applicant could, in any event, be punished under national law.

61 Accordingly, the Court must also reject the third submission, concerning an infringement of DP’s fiduciary duties.

62 Consequently, the first part of this plea in law must be rejected in its entirety, and there is no need to rule on the objection of inadmissibility made by the Commission.

The second part: infringement of the principle of sound administration

63 The applicant argues that the Commission infringed the principle of sound administration by not taking due account of the arguments which it had put forward during the administrative procedure, concerning breach of the obligation of professional secrecy, the prohibition on double representation, the duty of loyalty and fiduciary duties.

64 The Commission disputes those arguments.

65 First, it must be recalled that, in a procedure seeking to impose a fine on undertakings for an infringement of Article 101 TFEU, the Commission may not confine itself to examining the evidence put forward by the undertakings, but must, as a matter of sound administration, play its part, using the means available to it, in ascertaining the relevant facts and circumstances (see, to that effect, judgment of 13 July 1966 in Consten and Grundig v Commission, 56/64 and 58/64, ECR, EU:C:1966:41, p. 347).

66 In this case, the Commission took into consideration the arguments concerning a breach of the obligation of professional secrecy. As stated in paragraphs 48 and 49 above, the Commission examined the source of the information and evidence contained in DP’s immunity application and found that that information and evidence was available to DP, irrespective of any breach, by the law firm C., of the obligation of professional secrecy. The applicant has not put forward any argument to show that those findings of the Commission were vitiated by error.

67 Further, as regards the arguments concerning the infringements of the prohibition on double representation, the duty of loyalty and DP’s fiduciary duties, suffice it to state, with reference to paragraphs 51 to 61 above, that, in the circumstances of this case, such infringements, even if established, would not have been such as to prevent the Commission using the information. Accordingly, nor was the Commission obliged to examine those arguments.

68 In the light of the foregoing, the second part of the first plea in law must also be rejected, and, consequently, the first plea must be rejected in its entirety, and there is no need to answer the question whether the infringements relied on by the applicant, which concerned the AMS cartel, were capable of affecting the lawfulness of the contested decision with respect to the NES cartel.

2. The second plea in law: infringement of Article 1 of Regulation No 141

69 This plea in law concerns the conclusion of the Commission, in recitals 644 to 648 of the contested decision, that it was entitled to rely on Regulation No 1/2003 as the basis for penalising the applicant for the participation of Bax Global (UK) in the NES cartel. According to the Commission, that cartel was not exempt from the scope of Regulation No 17 of the Council of 6 February 1962, First Regulation implementing Articles [101 TFEU] and [102 TFEU] (OJ, English Special Edition, Series I 1959-1962, p. 87) because of the exemption for transport provided for by Article 1 of Regulation No 141. In that context, the Commission relied on, inter alia, the finding that the participants in the NES cartel coordinated their behaviour in order to remove uncertainty in relation to various elements of price in the freight forwarding sector and it was therefore the rates for freight forwarding services which were affected by that cartel and not the rates for transport services. Even if the freight forwarders had had contractual relationships with the air carriers, those relationships would have been the basis for the provision of air transport services, but not for the provision of freight forwarding services affected by the NES cartel.

70 The applicant considers that those findings of the Commission are misconceived. Pursuant to Article 1 of Regulation No 141, the Commission had no power to adopt a decision on the NES cartel.

71 In that context, it must be recalled that Regulation No 1/2003, as amended following Council Regulation (EC) No 411/2004 of 26 February 2004 repealing Regulation (EEC) No 3975/87 and amending Regulations (EEC) No 3976/87 and No 1/2003 in connection with air transport between the Community and third countries (OJ 2004 L 68, p. 1), on which the Commission based the contested decision, applies to air transport.

72 However, under the legislation in force before Regulation No 1/2003 became applicable, that is before 1 May 2004, cartels affecting air transport between the Community and third countries were exempt from the scope of Regulation No 17. Under Article 1 of Regulation No 141, Regulation No 17 did not apply to agreements in the transport sector which had as their object or effect the fixing of transport rates and conditions, the limitation or control of the supply of transport or the sharing of transport markets. It is true that Article 1 of 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), as amended by Council Regulation (EEC) No 2410/92 of 23 July 1992 (OJ 1992 L 240, p. 18), provided for the removal of that exemption in the case of air transport between Community airports, but not in the case of air transport between the Community and third countries.

73 In essence, the applicant therefore claims that, since the participation of Bax (Global) UK in the NES cartel occurred before 1 May 2004, that cartel was exempted from the scope of Regulation No 17 by virtue of Article 1 of Regulation No 141. According to the applicant, freight forwarding services and NES filing services are part of the transport process and therefore constitute transport services within the meaning of that article. In any event, freight forwarding services as a whole, and more specifically services concerning the NES, were directly related to air transport. Consequently, the Commission was not entitled to penalise the applicant under Regulation No 1/2003.

74 The Court must first examine the applicant’s arguments concerning the interpretation of Article 1 of Regulation No 141, and then examine its arguments concerning the Commission’s conclusion that the NES cartel affected not transport services, but freight forwarding services.

The interpretation of Article 1 of Regulation No 141

75 The applicant maintains that the aim of Article 1 of Regulation No 141 is to exclude a range of activities within the transport sector, namely all the activities which are part of the transport process, since the concept of an industry sector may be wider than that of the market at issue. When assessing the activities which are exempted by that article, account should be taken of the nature of the undertakings’ economic activity. In that context, no distinction can be made as regards the various levels of activity of an undertaking. Accordingly, in the case of Bax Global (UK), the Commission should not have distinguished the acquisition of cargo space from carriers, on the one hand, and the provision of that space to shippers, on the other. Further, the applicant argues that Article 1 of Regulation No 141 must be applied to services related to transport, on the ground that that article refers to ‘transport conditions’ and the preamble of that regulation refers to agreements, decisions and concerted practices directly relating to the provision of transport services.

76 The Commission disputes those arguments.

77 In that regard, first, it must be recalled that, in order to be exempted from the scope of Regulation No 17 pursuant to Article 1 of Regulation No 141, the conduct of an undertaking must have as its object or effect the restriction of competition in a transport market. According to the third recital of Regulation No 141, only conduct directly relating to the provision of transport services is to be exempted by that article.

78 Moreover, it must be recalled that, according to the case-law, the conduct of an undertaking which does not concern air transport itself, but a market situated upstream or downstream of air transport, cannot be regarded as directly relating to the provision of transport services and is therefore not exempted by Article 1 of Regulation No 141 (see, to that effect, judgment of 17 December 2003 in British Airways v Commission, T‑219/99, ECR, EU:T:2003:343, paragraphs 171 and 172).

79 In the light of the foregoing, the interpretation of Article 1 of Regulation No 141 advocated by the applicant cannot be accepted.

80 A reading of Article 1 of Regulation No 141 as meaning that that provision is not confined to exempting cartels concerning air transport services, but exempts a set of activities within the air transport sector, is not compatible with either the wording of that provision, or the third recital of that regulation, or the abovementioned case-law, from which it is apparent that the cartel must directly relate to the provision of air transport services.

81 Next, contrary to what is argued by the applicant, Article 1 of Regulation No 141 does not exempt the activities of an undertaking in their entirety solely because one part of its activities concerns air transport services. Consequently, even if an undertaking seeks to obtain transport services on an upstream market, its activities on a downstream market, which are not directly related to transport services, are not exempted by virtue of that article.

82 Further, the Court must reject the interpretation advocated by the applicant, that Article 1 of Regulation No 141 exempts all services which are directly linked to transport services. As follows from the considerations set out in paragraph 80 above, that provision is confined to exempting cartels directly relating to transport services, but does not exempt cartels relating to services which are directly linked to transport services.

83 Moreover, in so far as, in support of the reading of Article 1 of Regulation No 141 which it proposes, the applicant claims that that provision refers to ‘transport … conditions’, suffice it to state that that expression does no more than clarify that not only are cartels affecting rates for transport services exempted, but also those fixing trading conditions within the meaning of Article 101(1)(a) TFEU. However, contrary to what is argued by the applicant, it cannot be inferred that services which are not transport services, but which have a direct link with transport services are also exempted from the application of Regulation No 17.

The services affected by the NES cartel

84 The applicant also calls into question the Commission’s finding that the NES cartel affected freight forwarding services as a package of services.

85 In that regard, in, inter alia, recitals 3 to 6, 64 to 66, 614, 867 to 872 and 877 to 879 of the contested decision, the Commission stated that, from an economic perspective, the freight forwarders transformed the transport services and other input services into freight forwarding services, which met a specific demand from their customers. That demand was not satisfied by the individual services which are components of freight forwarding services. The freight forwarders offered a package of services to their customers which enabled them easily to dispatch goods, without having to concern themselves with the details of transport organisation. Those services included air transport services, but could also include warehousing services, cargo handling services, logistics or ground transport services and services relating to customs and fiscal matters. If the shippers were obliged to acquire themselves the individual services required to ensure that the goods arrive at their destination, first, they would have to coordinate the various operations at their own risk, and, second, they would not be able to profit from the economies of scale which the freight forwarders are able to achieve by consolidating the goods of their various customers. In contrast, the freight forwarders prefinanced or purchased wholesale and in advance the services of third parties which are required for the provision of freight forwarding services and were in a position, by bringing together by way of consolidation the goods of their own customers in cargoes of the optimal weight and size, to take advantage of economies of scale and to use those capacities more efficiently than one of their customers could have done if he had attempted to purchase air transport services or related services directly from an air carrier, a ground handling company or a warehousing company. For the customers of the freight forwarders, freight forwarding services therefore have a higher value than that of their inputs considered individually.

86 Further, in, inter alia, recitals 129 and 130, 572, 645, 868, 869 and 872 of the contested decision, the Commission found that, even though, by means of the NES cartel, the freight forwarders entered into an agreement only on the NES surcharges, that cartel affected freight forwarding services. First, in that context, the Commission relied on the consideration that the NES surcharge was part of the total price which the customers had to pay for the provision of freight forwarding services. Second, the Commission stated, that the freight forwarders which participated in the NES cartel were not merely suppliers of NES filing services, did not regard third parties which were not freight forwarders and which offered individual NES filing services as actual or potential competitors and did not attempt to involve such suppliers in the NES cartel. Third, the Commission held that it was clear from the evidence in its possession that the decision of a freight forwarder not to pass on risk or cost factors to its customers in the form of a surcharge was likely to confer on it a competitive advantage on the market for freight forwarding services as a package of services. Since freight forwarding is a low margin market, even a small price increase or surcharge imposition or absence thereof could play a decisive role in whether or not the freight forwarders lose customers, whether or not they maintain their client base or whether or not they gain new business opportunities at the expense of their competitors.

87 The applicant considers that those findings are erroneous.

88 First, the applicant argues that the Commission ignored the fact that the transport services were included in the freight forwarding services and that, from the perspective of the freight forwarders’ customers, the transport services were very important, since the organisation of transportation in itself, without the actual transportation, did not meet their needs. The contractual obligation owed by the freight forwarders to their customers went beyond the mere organisation of the transportation of goods from source to destination. From a customer perspective, the product or service at issue is cargo space, irrespective of whether it is offered by a carrier or a freight forwarder.

89 The Commission disputes those arguments.

90 This submission must be rejected.

91 In that regard, it must be observed that, in the contested decision, the Commission did not dispute that, from the perspective of the freight forwarders’ customers, transport services constitute an important element of freight forwarding services. The Commission confined itself to finding that, even though freight forwarding services included transport services, the former had to be distinguished from the latter. Further, in so far as the applicant argues that, from the perspective of the freight forwarders’ customers, the services which the freight forwarders offer is the provision of cargo capacity, it is clear that that proposition is merely asserted and that the applicant offers no argument to demonstrate that the Commission’s findings as set out in paragraph 85 above, that a distinction must be made between freight forwarding services and transport services, are vitiated by error.

92 Second, the applicant claims, first, that the Commission failed to take sufficient account of the fact that it frequently leases entire aircraft, which means that it can determine the destination and schedule of transport services, and that it bears the economic risk attached to using the available cargo capacity. Second, the freight forwarders often themselves supply the transport services, either wholly or in part. Thus, even where the transportation is classified as ‘air freight’, over short distances they themselves often provide such transportation by land using the fleet of trucks available to them.

93 The Commission disputes those arguments.

94 That submission must also be rejected.

95 In that regard, it is clear that the fact relied on by the applicant, that it leases entire aircraft and bears the economic risk attached to using the available cargo capacity, does not allow the inference that its entire activity concerns transport services. Admittedly, to the extent that the freight forwarders acquire air transport services from the carriers, their activity concerns the air transport market. However, as stated in paragraph 81 above, the fact that the applicant seeks to obtain services on the air transport services market is not sufficient ground for its entire activity to be exempted pursuant to Article 1 of Regulation No 141. Yet, according to the Commission’s findings as stated in paragraphs 85 and 86 above, the NES cartel affected not the transport services market, but the freight forwarding services market, on which market the freight forwarders offer freight forwarding services to their customers and which market is downstream of the transport services market. In any event, the applicant does not challenge the Commission’s finding in recital 6 of the contested decision that the majority of the freight forwarders do not themselves provide air transportation.

96 Further, the fact that, as part of the provision of freight forwarding services, the applicant itself takes charge of some or all transport services by land does not alter the fact that the services affected by the NES cartel were not transport services, but freight forwarding services in the form of a package of services.

97 Third, the applicant claims that the air carriers negotiate air transport contracts directly with major customers and that the carriers can themselves lease aircraft from suppliers. Accordingly, the freight forwarders are in fact in direct competition with the air carriers.

98 The Commission disputes those arguments.

99 In that regard, it must be observed, that those arguments fail to call into question the Commission’s finding that the freight forwarding services have to be distinguished from transport services, because, in the form of a package of services, they meet a specific demand from customers, from whose perspective, economically, the freight forwarding services cannot be replaced by their individual component services. The fact that some major customers of the carriers negotiate air transport contracts directly with the carriers fails to demonstrate that, for the majority of the freight forwarders’ customers, for the reasons set out in paragraph 85 above, economically, the individual services which make up the freight forwarding services and the freight forwarding services are not interchangeable.

100 Further, the applicant does not explain how the fact that the carriers lease aircraft for use to provide air transport services could be capable of calling into question the Commission’s finding that the services affected by the NES cartel were freight forwarding services which have to be distinguished from transport services.

101 This submission must therefore be rejected.

102 Fourth, the applicant claims that the Commission failed to take into account the fact that the goods could not be transported without the NES declaration. The Commission applied a false criterion for the determination of whether there was a direct relationship between the freight forwarding services (as a whole or solely those concerning the NES), on the one hand, and air transport, on the other. Since the NES declaration is a precondition of a transport activity, a failure to file NES documents would jeopardise the possibility of air transport from the United Kingdom. A relationship with air transport also exists for freight forwarding services as a whole.

103 The Commission disputes those arguments.

104 In that regard, it is clear that, in recital 647 of the contested decision, the Commission recognised that compliance with the NES procedure constituted a legal precondition for transportation from the United Kingdom and that a failure to comply with that procedure might jeopardise the transport by air of some goods. The Commission therefore took into account the importance of NES filing services for the transport services.

105 Furthermore, the Court must observe that the arguments put forward by the applicant, claiming a link between the NES procedure and the transport services, and a link between the transport services and the freight forwarding services, fail to call into question the merits of the Commission’s findings. The NES cartel affected freight forwarding services, and Article 1 of Regulation No 141 exempts only cartels directly related to transport services (see paragraph 82 above), but not cartels affecting services linked to transport services. Therefore, the links between the NES procedure and the air transport services from the United Kingdom, and the links between transport services and freight forwarding services, are not capable of calling into question the Commission’s conclusion that the NES cartel was not exempted.

106 That submission must therefore be rejected and there is no need to examine whether the Commission’s further findings as stated in recital 647 of the contested decision, that, first, the absence of freight forwarding services or failure to comply with the NES procedure would not jeopardise the possibility of air transport services as such and, second, the service relating to the NES procedure could be supplied by service providers other than the air carriers or the freight forwarders, are of relevance.

107 Fifth, the applicant relies on the fact that the rules of the International Air Transport Association (IATA) apply not only to relationships between carriers and freight forwarders, but also to those between the freight forwarders and their customers.

108 The Commission disputes those arguments.

109 In that regard, suffice it to state that the scope of the IATA rules fails to call into question the Commission’s finding that there was a specific demand for freight forwarding services as a package of services which, for the reasons set out in paragraph 85 above, economically, cannot be replaced by the individual component services.

110 Consequently, none of the arguments put forward by the applicant demonstrate that the Commission misinterpreted or misapplied Article 1 of Regulation No 141.

111 Accordingly, the Court must reject the second plea in law in its entirety.

3. The third plea in law: trade between Member States was not appreciably affected

112 This plea concerns the Commission’s findings in Section 5.2.1.3 of the contested decision that the NES cartel was such as to appreciably affect the pattern of trade between the Member States.

113 The applicant considers that those findings are not compatible with Article 101(1) TFEU and Articles 4 and 7 of Regulation No 1/2003 and that the Commission did not comply with either the principle of sound administration or the 2004 Effects Notice.

114 The arguments put forward by the applicant in this plea can be divided into two parts. First, the applicant argues that, contrary to the Commission’s findings, the NES cartel did not affect freight forwarding services, but solely NES filing services. Secondly, the applicant claims that the Commission’s finding that the NES cartel was such as to appreciably affect trade between Member States was erroneous, since the effects of that cartel were limited to the United Kingdom, and indeed to certain parts of that Member State.

The first part, concerning the services affected by the NES cartel

115 The applicant challenges the Commission’s finding in recital 614 of the contested decision that the NES cartel affected freight forwarding services. The applicant considers that that finding is erroneous. The NES cartel solely affected NES filing services. The freight forwarders entered into agreements solely with respect to the amounts of the NES surcharge and the provision of NES filing services was an activity independent of freight forwarding. It was a stand-alone activity relating to the particular legislation in the United Kingdom and therefore a separate services market for the purposes of competition law.

116 First, the applicant argues that the Commission failed to provide sufficient evidence to demonstrate that the NES cartel affected freight forwarding services as a whole. The Commission did no more than record that the NES surcharge was included in the total price paid by customers for the provision of freight forwarding services. Yet there were independent third party non-freight forwarders who offered NES filing services. Contrary to the Commission’s findings, the fact that those third parties were not referred to in the discussions among the freight forwarders was not relevant.

117 The Commission disputes those arguments.

118 This submission must be rejected.

119 In that regard, it must be stated that, contrary to what is argued by the applicant, the Commission did not confine itself to recording that the NES surcharge was included in the total price paid by customers for the provision of freight forwarding services.

120 On the one hand, the Commission’s findings on which it based its conclusion that freight forwarding services as a package of services constituted a market which had to be distinguished from the markets for their individual component services, have been set out above in paragraph 85.

121 On the other, as stated above in paragraph 86, the Commission’s conclusion that the NES cartel affected freight forwarding services was not based solely on the finding that the NES surcharge was part of the total price which the customers had to pay for the provision of freight forwarding services. As stated by the Commission, first, all the undertakings which participated in the NES cartel were freight forwarders and none of them were mere suppliers of NES filing services; second, those undertakings had not regarded such suppliers as actual or potential competitors; third, those undertakings did not seek to involve those suppliers in the NES cartel; and, fourth, the decision of a freight forwarder not to pass on the risk and cost factors to its customers in the form of a surcharge was likely to confer on it a competitive advantage in the freight forwarding services market.

122 Therefore, the aim of the NES cartel was not to restrict competition with respect to NES filing services as individual services, but competition with respect to freight forwarding services as a package of services.

123 Further, admittedly, the fact that third party non-freight forwarders offer NES filing services and the fact asserted by the applicant that as much as 40% to 50% of customs declarations in Europe are submitted directly by the shipper or through customs agencies, even if that proved to be correct, may demonstrate that there was a demand for individual NES filing services. However, they fail to demonstrate that the cartel at issue affected those individual services.

124 Secondly, the applicant claims that the reasons stated in the contested decision are inconsistent. On the one hand, in recital 441 of the contested decision, in the description of the infringement, the Commission solely referred to the conduct directly linked to the NES surcharge and offered no evidence to demonstrate that the NES cartel related to other subjects, for example transportation prices or other ancillary services. On the other, in recital 872 of the contested decision, the Commission asserted that the NES cartel affected not the NES filing services market, but freight forwarding services.

125 The Commission disputes those arguments.

126 This submission must be rejected.

127 Contrary to what is argued by the applicant, those findings of the Commission are not contradictory. According to the Commission’s findings as summarised in paragraphs 85 and 86 above, even though the NES cartel related only to the NES surcharge, its aim was to restrict competition between freight forwarders with respect to freight forwarding services.

128 Third, the applicant claims that the reason why the freight forwarders indicate ancillary services such as NES filing services associated with the freight forwarding services on their bills is purely a matter of administrative convenience, as the Commission itself recognised. Charges for those services can thus be covered by an overall bill.

129 The Commission disputes those arguments.

130 This submission must also be rejected.

131 In that regard, it must be observed that the fact that the freight forwarders charged their customers for NES filing services in no way calls into question the Commission’s finding that there is a specific demand for freight forwarding services as a package of services, because of the possibility thereby to save time and money. On the contrary, those findings are supported by the applicant’s argument that this allows freight forwarders to send an overall bill to their customers.

132 Further, it is clear that, contrary to what is argued by the applicant, in recital 868 of the contested decision, the Commission did not find that the fact that the freight forwarders charged their customers for NES filing services was a purely administrative matter of no importance. The Commission simply stated in that recital that the fact that, on their bills, the freight forwarders itemised the NES surcharge separately, instead of including it in the final price of the freight forwarding services, was a purely formal issue, devoid of any economic or legal significance.

133 Fourth, the applicant argues that it is apparent from Article 1(1) of the contested decision that the NES cartel affected the supply of NES filing services.

134 The Commission disputes that argument.

135 In that regard, suffice it to state that is plain from the wording of that provision that the NES cartel affected the ‘air freight forwarding services sector’.

136 Accordingly, none of the arguments put forward by the applicant is such as to demonstrate that the Commission’s finding that the aim of the NES cartel was to restrict competition with respect to freight forwarding services is vitiated by error.

137 Consequently, the first part of this plea must be rejected.

The second part, on whether trade between Member States was affected

138 The applicant also challenges the Commission’s conclusion that the NES cartel was capable of appreciably affecting the pattern of trade between the Member States.

139 In Section 5.2.1.3 of the contested decision, in recitals 590 to 599 and 602 to 615, the Commission stated that trade between Member States might have been affected by the NES cartel (i) directly, with respect to the provision of freight forwarding services and (ii) indirectly, with respect to the transported goods.

140 The applicant considers that those findings are vitiated by errors. Neither the effects which the NES cartel might have had on the freight forwarding services, nor the effect which it might have had on the transportation of goods were capable of appreciably affecting trade between Member States. The Commission relied on general arguments, failed to produce sufficient evidence, did not comply with the 2004 Effects Notice and did not carry out an adequate inquiry.

141 In that regard, first, it must be observed that Article 101(1) TFEU and Article 53 of the EEA Agreement concern only agreements which are capable of affecting trade between Member States. As is stated in the case-law, if an agreement is to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States (judgment of 13 July 2006 in Manfredi and Others, C‑295/04 to C‑298/04, ECR, EU:C:2006:461, paragraph 42).

142 It must also be recalled that an agreement will fall outside the prohibition in Article 101 TFEU if it has only an insignificant effect on the market (see judgment of 21 January 1999 in Bagnasco and Others, C‑215/96 and C‑216/96, ECR, EU:C:1999:12, paragraph 34 and the case-law cited).

143 The cross-border nature of freight forwarding services is not to be confused with the issue of whether trade between Member States was appreciably affected. If every cross-border transaction were automatically capable of appreciably affecting trade between Member States, the concept of appreciability, which is, however, a condition for the application of Article 101(1) TFEU established by case-law, would be devoid of meaning (judgment of 16 June 2011 in Ziegler v Commission, T‑199/08, ECR, EU:T:2011:285, paragraphs 52 and 53).

144 In the light of the fact that the concept of trade for the purposes of Article 101 TFEU is not limited to traditional exchanges of goods across borders, but also covers exchanges of services, the Court must examine the applicant’s arguments seeking to challenge the findings of the Commission based on the effects of the NES cartel on trade with respect to freight forwarding services, and then examine the arguments seeking to challenge the Commission’s findings based on the effects of that cartel on the flow of goods. Thereafter, the Court must turn to the argument concerning a breach of the principle of sound administration and a failure to comply with paragraph 77 of the 2004 Effects Notice.

Whether trade with respect to freight forwarding services was affected

145 The applicant challenges the Commission’s finding that the NES cartel was capable of having appreciable effects on the freight forwarding services market.

146 In recitals 598, 607, 608, 610, 613 and 614 of the contested decision, the Commission stated that, notwithstanding the fact that the NES cartel related only to the legislation of one Member State, it was capable of affecting trade between Member States, in particular, with respect to freight forwarding services. First, the freight forwarding services affected by the NES cartel were sought not only by customers situated in the United Kingdom, but also by customers located outside the United Kingdom, in other EEA countries, or by local offices of the latter. Second, the freight forwarding services sector is characterised by substantial trade between Member States, both between the countries of the European Union and those of the European Free Trade Association (EFTA). Freight forwarders compete with one another in all, or almost all, the States belonging to the EEA and their customers are established in the EEA. It was evident that the conduct of global undertakings on the UK market could have had repercussions on the competitive structure within the internal market, as the altered margins in the United Kingdom could have affected their business conduct in other Member States. Further, the Commission stated that the effects of the NES cartel on freight forwarding services had been appreciable, since the conditions for the presumption provided for in paragraph 53 of the 2004 Effects Notice were met. First, the NES cartel was by its very nature a cartel capable of affecting trade between Member States for the purposes of that paragraph. Second, the turnover achieved by the parties in the services affected by the NES cartel exceeded EUR 40 million and their market share exceeded the 5% threshold.

147 The applicant considers that those findings are in error. The Commission’s findings were entirely speculative. Contrary to the view taken by the Commission, the NES cartel did not affect trade in several Member States and did not have as its main aim the regulation of competition within the EEA. Any effect of the NES surcharge was confined to the United Kingdom, or solely to certain areas in the United Kingdom.

148 More specifically, the applicant calls into question, first, the Commission’s findings based on the effects on the freight forwarders’ customers and on the conduct of the freight forwarders in other Member States and, second, the Commission’s findings as regards whether trade was appreciably affected.

– The effects on the freight forwarders’ customers and on the conduct of freight forwarders in other Member States

149 The applicant’s first argument is that the Commission’s finding in recital 610 of the contested decision, that the altered margins of freight forwarders in the United Kingdom were capable of having repercussions on their conduct in other Member States, is entirely speculative. The Commission provided no evidence to demonstrate that the NES surcharge, which was, in practice, applicable only to goods in the United Kingdom, could have had any effect whatsoever on the business of undertakings operating in other Member States, particularly if the commercial insignificance of the NES surcharge is taken into consideration. In the circumstances of this case, the fact that the undertakings which participated in the agreement were members of groups of differing nationalities is of no relevance.

150 The Commission disputes those arguments.

151 In that regard, it must be observed that Article 101(1) TFEU concerns agreements which are capable of affecting trade between Member States. Accordingly, the Commission is not obliged to demonstrate the actual effects of an agreement, it is sufficient that the Commission establish that those agreements are capable of having such an effect. The Commission may therefore confine itself to demonstrating that there is a sufficient degree of probability that the agreement may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States (judgment of 17 July 1997 in Ferriere Nord v Commission, C‑219/95 P, ECR, EU:C:1997:375, paragraph 20).

152 The Commission did not however err in taking the view that, in the circumstances of this case, it was sufficiently probable that the NES cartel might have had an influence on the conduct of freight forwarders in Member States other than the United Kingdom.

153 In that context, first, it must be recalled that, contrary to what is argued by the applicant, the NES cartel affected freight forwarding services (see paragraphs 115 to 136 above).

154 Second, it must be observed that, according to the findings made by the Commission in the contested decision, which have not been challenged by the applicant, the freight forwarders which participated in the NES cartel also offer their freight forwarding services in Member States other than the United Kingdom and compete with one another in those Member States with respect to those freight forwarding services.

155 Third, in the circumstances of this case, it cannot be ruled out that, in the absence of the NES cartel, the competition between the freight forwarders in relation to the costs arising from the NES might have had an impact on the margins of freight forwarders in the United Kingdom and might have led to gains and losses of market share in that country. Admittedly, in that context, the applicant argues that the NES surcharge was commercially insignificant. Nonetheless, that argument fails to invalidate the Commission’s finding that, having regard to the fact that the freight forwarding services market is one characterised by low margins, the commercial importance of the NES surcharge could not be regarded as insignificant. That finding of the Commission is supported, first, by its finding in recital 907 of the contested decision that the freight forwarders’ customers resisted payment of the NES surcharge, and, second, by the evidence mentioned in recital 869 of the contested decision, which reports the fears expressed by some freight forwarders who participated in the NES cartel that competition concerning the costs arising from the NES might have altered margins and entailed a gain or loss of market share. It is clear that the applicant offers no argument capable of invalidating those findings.

156 Fourth, having regard to those circumstances, it appears sufficiently probable that the NES cartel was capable of having repercussions on the conduct of the freight forwarders in other Member States, where they were also competing with one another, and of altering the structure of competition within the European Union in that respect.

157 Consequently, the Court must conclude that nothing of what is argued by the applicant is such as to call into question the Commission’s finding based on the effects of the NES cartel on the behaviour of freight forwarders in Member States other than the United Kingdom.

158 The applicant’s second argument is that the Commission’s finding in recital 607 of the contested decision that the services affected by the NES cartel were sought not only by customers situated in United Kingdom, but also by undertakings situated in other Member States in the EEA, is vitiated by errors. Cross-border trade is not facilitated by the provision of NES filing services, since those services are only of interest in the United Kingdom and do not create any demand outside the United Kingdom. In any event, the Commission failed to provide sufficient evidence on this subject.

159 In that context, it must be recalled that, contrary to what is argued by the applicant, the NES cartel affected not NES filing services, but freight forwarding services (see paragraphs 115 to 136 above).

160 Further, as regards the doubts expressed by the applicant concerning the Commission’s findings that customers situated in Member States other than the United Kingdom sought freight forwarding services which might have been affected by the NES cartel, it must be recalled that the Commission may confine itself to demonstrating that there is a sufficient degree of probability that that cartel might have had an influence, direct or indirect, actual or potential, on the pattern of trade between Member States (see paragraph 151 above).

161 Yet, as the applicant itself states, in that regard, the Commission relied on a statement made by [confidential], that [confidential].

162 Contrary to what is argued by the applicant, the credibility of that statement cannot be called into question by the applicant’s assertion that, in the majority of cases where goods situated in another Member State were transported through the United Kingdom, NES filing services were not necessary. Even if that assertion were correct, it is clear that it does not cover the situation in which a customer located in a Member State other than the United Kingdom seeks to obtain freight forwarding services with respect to goods that are already located in the United Kingdom.

163 Consequently, it is clear that nothing of what is argued by the applicant is such as to call into question the Commission’s finding based on the effects of the NES cartel on the freight forwarding services sought by customers situated in a Member State other than the United Kingdom.

164 The applicant’s third argument is that the nature and scope of the NES cartel demonstrates that it was confined to the United Kingdom and that it was not designed to produce effects on trade between Member States. The NES cartel was implemented by air freight personnel of various undertakings based in the London Heathrow Airport area. The Commission failed to show that the individuals concerned had the necessary authority to bind their entire UK organisations. The Bax Global (UK) participant in that cartel, Mr B., played no role in the fixing of prices. Bax operated a policy which allowed autonomy, and consequently local branch managers within Bax Global (UK) generally had significant flexibility as to prices, with each branch constituting a separate business. The amount of the NES surcharge charged to a specific customer of Bax Global (UK) was therefore decided by the branch manager concerned following negotiations between the branch in charge of the shipment and that customer.

165 The Commission disputes those arguments.

166 In that regard, it is clear, that the applicant does not challenge the Commission’s findings in recitals 94 to 114 of the contested decision that Mr B. was party, as a representative of Bax Global (UK), to a meeting and subsequent contacts in the course of which he came to an agreement with the representatives of other freight forwarders on the introduction of an NES surcharge, on the tariffs for that surcharge, the timetable for its application, and the monitoring of its implementation.

167 In addition, as regards the argument that Mr B. had no pricing authority, suffice it to observe that the applicant does not call into question the Commission’s findings in recital 122 of the contested decision, where the Commission recounted in detail and with reference to evidence that Mr B. did have pricing authority within Bax Global (UK), that the existence of the NES cartel was well known within that company and that the members of the Board had been informed by Mr B. of the existence of the NES cartel and had raised no objection to it. In that context, it must also be recalled that formal authorisation of the participation of an undertaking’s employee in a cartel is not a prerequisite of that participation being attributable to the undertaking (judgment of 16 November 2011 in Álvarez v Commission, T‑78/06, EU:T:2011:673, paragraph 39).

168 Moreover, in so far as the applicant claims that the scope of the NES cartel was confined to the United Kingdom or even to part of the territory of that Member State, suffice it to observe that, by reason of the findings set out in paragraphs 149 to 163 above, that argument does not call into question the Commission’s finding that the NES cartel was such as to have effects in other Member States.

169 Consequently, the Court must hold that nothing of what is argued by the applicant is sufficient to demonstrate that the Commission’s findings that the NES cartel was such as to have effects on the behaviour of the freight forwarders in other Member States and on the freight forwarders’ customers are vitiated by errors.

– Whether trade was appreciably affected

170 The applicant also challenges the Commission’s finding that the NES cartel was such as to affect trade between Member States appreciably.

171 In that regard, in the contested decision, the Commission stated that, in this case, the conditions for the positive presumption provided for in paragraph 53 of the 2004 Effects Notice were met. The Commission stated that the NES cartel was, by its very nature, capable of affecting trade between Member States. Further, in recital 614 of the contested decision, the Commission found that the turnover which the parties concerned achieved on the relevant trade lane was significantly higher than the EUR 40 million required. In recitals 613 and 899 of the contested decision, the Commission considered that not only the relatively strong individual positions of the undertakings concerned on the markets in the United Kingdom and the EEA, but also their overall market share in the United Kingdom and in the EEA argued in favour of trade being affected.

172 The applicant considers that those findings are vitiated by errors. First, the Commission misapplied the presumption provided for in paragraph 53 of the 2004 Effects Notice. Second, in the circumstances of this case, that presumption was rebutted.

173 The Commission disputes those arguments.

174 In that regard, first, it must be observed that paragraph 53 of the 2004 Effects Notice, neither the lawfulness nor relevance of that provision being challenged in this action, is worded as follows: ‘The Commission will also hold the view that where an agreement or a practice by its very nature is capable of affecting trade between Member States, for example, because it concerns imports and exports or covers several Member States, there is a rebuttable positive presumption that such effects on trade are appreciable when the turnover of the parties in the products covered by the agreement … exceed 40 million euro. In the case of agreements that by their very nature are capable of affecting trade between Member States, it can also often be presumed that such effects are appreciable when the market share of the parties exceeds the 5% threshold set out in the previous paragraph. However, this presumption does not apply where the agreement covers only part of a Member State (see paragraph 90 below).’

175 Next, the Court must reject the applicant’s argument that the NES cartel was not an agreement that by its very nature was capable of affecting trade between Member States. In that context, first, it must be stated that the application of the presumption provided for in paragraph 53 of the 2004 Effects Notice does not necessarily require that the cartel cover several Member States. As is apparent from the use of the words ‘for example’, that is no more than one example of the agreements that are covered by that paragraph. Second, reference must be made to paragraphs 149 to 168 above, where it was stated that the Commission’s finding that, notwithstanding that the NES cartel related to expenses arising out of United Kingdom legislation on the NES, the cartel was capable of affecting the freight forwarding services market in several Member States, is not vitiated by errors.

176 Further, in so far as the applicant calls into question the Commission’s analysis that the thresholds laid down in paragraph 53 of the 2004 Effects Notice were exceeded, it is clear that the applicant does no more than argue that the Commission should have used not turnovers achieved in the provision of freight forwarding services, but only turnovers achieved in the provision of NES filing services. In that regard, suffice it to recall that, first, under paragraph 53 of the 2004 Effects Notice, account must be taken of the turnover achieved by the parties in the provision of the services covered by the cartel and, second, by reason of the considerations set out in paragraphs 115 to 137 above, it must be held that the NES cartel affected freight forwarding services.

177 Moreover, in so far as the applicant argues that the Commission failed to take account of the fact that the presumption provided for in paragraph 53 of the 2004 Effects Notice was rebuttable and that, in the circumstances of this case, the presumption was rebutted, suffice it to observe that, in that context, the applicant puts forward no argument that has not already been examined and rejected in paragraphs 115 to 176 above.

178 Consequently, nothing of what is argued by the applicant is such as to call into question the Commission’s conclusion that the NES cartel was capable of appreciably affecting trade between Member States with respect to the freight forwarding services.

Whether the flow of goods was affected

179 The applicant also claims that the Commission’s findings based on an effect on the flow of goods are vitiated by errors. The NES cartel did not entail any adverse effect on the pattern of trade, either with respect to goods originating in the United Kingdom, or with respect to goods originating in other countries. First, the NES surcharge was charged only on goods originating in the United Kingdom, there being virtually no scope for the charging of the NES surcharge on shipments which did not have their origin in the United Kingdom. Second, the flow of goods located in the United Kingdom could not conceivably be adversely affected by the NES surcharge. Therefore, the NES cartel was not such as to affect trade between Member States or at least not to do so appreciably.

180 Those arguments must be rejected as being ineffective. Even on the assumption that the NES cartel did not appreciably affect the flow of goods between Member States, that cannot call into question the Commission’s conclusion that, by reason of its effects on the freight forwarding services, that cartel was such as to have affected trade between Member States appreciably.

The breach of the principle of sound administration and disregard of paragraph 77 of the 2004 Effects Notice

181 In so far as the applicant argues that the Commission was in breach of the principle of sound administration and infringed paragraph 77 of the 2004 Effects Notice, in accordance with which, when cartels cover the territory of a single Member State, it may be necessary to undertake a more detailed inquiry into the ability of those cartels to affect trade between Member States, in that the Commission did not engage in any further fact-finding, suffice it to observe that it follows from the foregoing that, on the basis of the information available to it, the Commission could properly come to the conclusion that the NES cartel was capable of affecting trade between Member States, and was not obliged to undertake any further inquiry.

182 Accordingly, it must be concluded that nothing of what is argued by the applicant is such as to call into question the merits of the Commission’s finding that the NES cartel was capable of appreciably affecting the pattern of trade between Member States.

183 Consequently, the third plea in law must be rejected in its entirety.

4. The fourth plea in law, concerning the Commission’s decision to hold the applicant solely liable

184 By this plea in law, the applicant challenges the Commission’s decision to hold the applicant solely liable for the conduct of Bax Global (UK). The plea has three parts. By the first part, claiming, inter alia, an infringement of Article 101(1) TFEU and the principle of personal responsibility, the applicant argues that there is no legal basis for holding it liable for the conduct of Bax Global (UK). By the second part of the plea, claiming an infringement of Article 41 of the Charter of Fundamental Rights and the principle of sound administration, the applicant criticises the Commission for having failed to investigate whether Brink’s, the former parent company of Bax Global (UK), should, together with the applicant or alone, have been held liable for the conduct of Bax Global (UK). By the third part of the plea, claiming an infringement of Article 296 TFEU, the applicant complains that the Commission failed to state in the contested decision sufficient reasons for that purpose.

The first part, claiming, inter alia, an infringement of Article 101(1) TFEU and breach of the principle of personal responsibility

185 This part of the plea concerns the Commission’s decision to hold the applicant to be solely liable for the participation of Bax Global (UK) in the NES cartel.

186 In recitals 664 and 754 of the contested decision, the Commission stated that (i) Bax Global (UK) had participated in the NES cartel between 1 October 2002 and 10 March 2003; (ii) before the adoption of the contested decision, all its activities had been transferred to one of its affiliated companies, namely the applicant; (iii) Bax Global (UK) had ceased to exist and therefore could not be an addressee of the contested decision; and (iv) that the applicant was the economic successor of Bax Global (UK) and could consequently be held liable for its conduct.

187 The applicant considers that, by acting in this way, the Commission was in breach of the principle of personal responsibility, Article 101(1) TFEU and Articles 4, 7 and 23(2) of Regulation No 1/2003. In this case, there was no legal basis for holding the applicant liable for the participation of Bax Global (UK) in the NES cartel. Contrary to the Commission’s findings, the acquisition and absorption of Bax Global (UK) did not result in a transfer to the applicant of liability for the conduct of the undertaking by which Bax Global (UK) was owned between October 2002 and March 2003 and which had been controlled by Brink’s. Since Brink’s still existed on the date of adoption of the contested decision, the Commission should have held Brink’s liable for the conduct of Bax Global (UK), and not the latter. The transfer of liability to a new legal person is conditional upon such new legal person constituting, together with the original legal person, one and the same undertaking for the purposes of the application of the European Union competition rules, which was not true in this case.

188 The Commission disputes those arguments.

189 In that regard, it must be recalled, first, that where an economic entity infringes the competition rules, it falls to that entity, in accordance with the principle of personal responsibility, to answer for that infringement.

190 However, as the Commission correctly stated in recital 664 of the contested decision, the principle of personal responsibility does not mean that, in some circumstances, the economic successor of a company cannot be held liable for the conduct of that company.

191 Thus, first, it is apparent from the case-law that the economic successor of a legal entity which is responsible for an infringement of European Union competition law may be held liable, where that entity has ceased to exist at the time when the Commission decision is adopted (see, to that effect, judgments of 24 September 2009 in Erste Group Bank and Others v Commission, C‑125/07 P, C‑133/07 P and C‑137/07 P, ECR, EU:C:2009:576, paragraphs 77 to 83, and 5 December 2013SNIA v Commission, C‑448/11 P, EU:C:2013:801, paragraph 23).

193 In the two situations mentioned above, an attribution of liability to the economic successor is justified in the interests of achieving effective implementation of the competition rules. If the Commission did not have such an option, undertakings would find it easy to evade penalties by means of restructuring, transfers or other legal or organisational changes. The objective of punishing conduct which is contrary to the competition rules and preventing its repetition by means of deterrent penalties would thus be compromised.

194 Since the Commission established that, before the adoption of the contested decision, all the activities of Bax Global (UK) had been transferred to the applicant, which at that time was an affiliated company, and that again before the adoption of the contested decision, Bax Global (UK) ceased to exist (see paragraph 186 above), the Commission was entitled to hold the applicant liable for the infringement committed by Bax Global (UK) pursuant to the case-law and principles referred to in paragraphs 191 and 192 above.

195 None of the arguments put forward by the applicant can call into question that conclusion.

196 First, the applicant argues that it is apparent from paragraphs 61 to 64 of the judgment of 30 September 2009 in Hoechst v Commission (T‑161/05, ECR, EU:T:2009:366) that it is solely Brink’s, as the former parent company of Bax Global (UK), who should answer for the infringement.

197 In that regard, the Court must observe that since Bax Global (UK) participated in the NES cartel (see paragraph 186 above), it can be held liable for it.

198 Moreover, as regards any liability incurred by Brink’s as the parent company of Bax Global (UK), it must be recalled that, contrary to what is argued by the applicant, the Commission’s option to hold the applicant liable as the economic successor of Bax Global (UK) is not restricted by any option of also holding its former parent company, Brink’s, to be liable (see, to that effect, judgment in Erste Group Bank and Others v Commission, cited in paragraph 191 above, EU:C:2009:576, paragraph 82).

199 In addition, it must be stated that paragraph 61 of the judgment in Hoechst v Commission, cited in paragraph 196 above (EU:T:2009:366), in no way precludes those conclusions. Admittedly, in that paragraph, the Court held that it was for the legal person managing the undertaking in question at the time when the infringement was committed to answer for that infringement, even if, at the time when the decision finding the infringement was adopted, another company had assumed responsibility for operating the undertaking. Yet it is apparent from the context that, in that paragraph, the Court did no more than clarify that a parent company which, at the time when an infringement was committed, controlled the subsidiary directly involved in that infringement and was therefore part of the same undertaking, could be held liable for that infringement even where, at the time when the Commission’s decision was adopted, those two companies were no longer part of the same undertaking.

200 Accordingly, this submission must be rejected.

201 Second, the applicant argues that it follows from paragraph 109 of the judgment in ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 192 above (EU:T:2009:90) that, in the event of transfer of all or part of the economic activities from one legal entity to another, liability for an infringement committed by the initial operator, within the activities concerned, could be attributed to the new operator only where both entities constituted one and the same economic entity for the purposes of application of the competition rules.

202 In that regard, it must be recalled that the situation concerned in the judgment in ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 192 above (EU:T:2009:90), namely that referred to in paragraph 192 above, is not the only situation where an economic successor can be held to be liable. As stated in paragraphs 190 to 193 above, where a company which has committed an infringement of the competition rules has ceased to exist when the contested decision is adopted, the Commission was entitled to hold its economic successor to be liable, irrespective of whether those two legal entities were part of the same undertaking. In this case, Bax Global (UK) had ceased to exist at the time when the contested decision was adopted. Accordingly, the Commission was entitled to hold the applicant liable as its economic successor.

203 Further, and in any event, as regards the application of the judgment in ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 192 above (EU:T:2009:90), it must be observed, that, at the time when the activities of Bax Global (UK) were transferred to the applicant, those two companies belonged to the DB Group. Accordingly, because of the structural links which existed between them when the economic activity of Bax Global (UK) was transferred to the applicant, the Commission was entitled to hold the applicant liable for the conduct of Bax Global (UK).

204 Accordingly, that argument must be rejected.

205 Thirdly, the applicant argues that the concepts of ‘undertaking’ and ‘liability’ for the purposes of Article 101 TFEU and the question of transfer of liability between various undertakings are legal concepts and the Commission had therefore no discretion in relation to them.

206 As regards that argument, in the first place, it must be observed that it is not apparent from the contested decision that the Commission considered that it had any discretion as regards the concept of an undertaking within the meaning of European Union competition law or as regards a transfer of liability. In recital 754 of the contested decision, the Commission confined itself to applying the case-law and principles referred to in paragraphs 190 to 193 above, according to which, in a situation such as that of the present case, it was entitled to hold liable the economic successor of the company which directly participated in an infringement.

207 As regards recitals 791 and 782 of the contested decision, in which the Commission stated that it was not imposing penalties on former parent companies of subsidiaries which participated in the NES cartel, it is clear that, in that context, the Commission did no more than exercise the discretion available to it to determine the legal entities on which it was to impose a penalty, as the applicant itself acknowledges. On the other hand, in that context, the Commission took no position on whether, in this case, those former parent companies could have been considered to be part of an undertaking which committed an infringement of Article 101 TFEU or on questions of transfer of liability.

208 Since none of the arguments seeking to demonstrate that, in this case, there was no legal basis for imposing a penalty on the applicant is well founded, this part of this plea in law must be rejected.

The second part, concerning a breach of Article 41 of the Charter of Fundamental Rights and the principle of sound administration, and the third part, concerning a breach of the duty to state reasons

209 In these parts of this plea, first, the applicant argues that, by omitting to examine diligently and sufficiently whether it could hold Brink’s liable for the conduct of Bax Global (UK) and to what extent it was necessary and fair to take action against the applicant in order to ensure the effective enforcement of the European Union competition rules, the Commission was in breach of Article 41 of the Charter of Fundamental Rights and the principle of sound administration. Secondly, the applicant claims that the Commission did no more than make known that it had chosen not to hold Brink’s to be liable, whereas, under Article 296 TFEU, it ought to have stated reasons for the decision not to hold Brink’s, the former parent company of Bax Global (UK), liable either solely or jointly and severally. Consequently, the contested decision should be annulled, or, at the least, there should be imposed on the applicant only that proportion of the fine which it would ultimately have had to pay if it had been able to seek recovery from Brink’s as being jointly and severally liable.

210 The Commission disputes those arguments.

The breach of Article 41 of the Charter of Fundamental Rights and the principle of sound administration

211 First, it must be recalled that, according to Article 23(2)(a) of Regulation No 1/2003, the Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently, they infringe Article 101 TFEU. That provision refers solely to the possibility of imposing penalties on undertakings, but does not define the legal entities on which a fine can be imposed. The Commission therefore has a discretion concerning the choice of legal entities on which it can impose a penalty for an infringement of European Union competition law (see, to that effect, judgment in Erste Group Bank and Others v Commission, cited in paragraph 191 above, EU:C:2009:576, paragraph 82).

212 However, in the exercise of that choice, the Commission is not entirely free. The Commission must have regard to, inter alia, the general principles of EU law and the fundamental rights guaranteed at EU level (see, to that effect, Opinion of Advocate General Kokott in Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, C‑628/10 P and C‑14/11 P, ECR, EU:C:2012:11, point 48).

213 Accordingly, where, in the course of its investigation, the Commission decides not to impose a fine on a particular category of legal entities which might have been part of the undertaking which committed the infringement, the Commission must have due regard to, inter alia, the principle of equal treatment.

214 It follows that not only must the criteria which the Commission establishes in order to make a distinction between those legal entities on which it imposes a fine and those on which it decides not to impose a fine not be arbitrary, but they must also be applied consistently.

215 The question whether, in this case, the Commission exceeded the limits of its discretion must be examined in the light of those principles and that case-law.

216 First, as regards the applicant’s arguments seeking to challenge the criteria applied by the Commission, it must be observed that, in this case, the Commission decided to hold liable not only the subsidiaries which participated in the NES cartel, but also the parent companies of those subsidiaries which, at the time when the contested decision was adopted, were part of the same undertaking for the purposes of Article 101 TFEU, in so far as participation in that cartel could also be imputed to them. On the other hand, as is apparent from recitals 791 and 782 of the contested decision, the Commission decided not to impose fines on the former parent companies of those subsidiaries, irrespective of whether they could also have been held liable for the NES cartel.

217 Such an approach is within the discretion available to the Commission. As part of that discretion, the Commission can take into consideration the fact that an approach intended to impose penalties on all the legal entities which might be held to be liable for an infringement might add considerably to the work involved in its investigations (see, to that effect, judgment in Erste Group Bank and Others v Commission, cited in paragraph 191 above, EU:C:2009:576, paragraph 82).

218 It is apparent from the contested decision that, in this case, even excluding the former parent companies of subsidiaries which participated in the AMS, NES, CAF and PSS cartels, the total number of legal entities taking part in the procedure before the Commission was 47. Given the size of that number, the Commission’s decision not also to take action against the former parent companies of those subsidiaries cannot be regarded as arbitrary.

219 In that context, it must also be recalled that, in paragraphs 155 to 167 of its judgment of 11 July 2013