EN Official Journal of the European Union C 239/63

Action brought on 30 May 2017 — Deutsche Lufthansa and Others v Commission

(Case T-342/17)

(2017/C 239/75)

Language of the case: English

Parties

Applicants: Deutsche Lufthansa AG (Cologne, Germany), Lufthansa Cargo AG (Frankfurt am Main, Germany), Swiss International Air Lines AG (Basel, Switzerland) (represented by: S. Völcker, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

— annul Article 1 of Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case AT.39258 — Airfreight);

— order that the Commission bear the costs, including the costs of the applicants.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

1. First plea in law, alleging that the contested decision suffers from a detective statement of reasons by failing to unambiguously set out the geographic scope of the infringement in the operative part and the statement of reasons.

2. Second plea in law, alleging that the contested decision infringes Article 11 of the Agreement between the European Community and the Swiss Confederation on Air Transport by relying on contacts between competitors which took place in Switzerland and predominantly affected air freight transported between Switzerland and third countries.

3. Third plea in law, alleging that the contested decision infringes the principle of non-retroactive application of laws by relying on contacts affecting only routes outside of the EEA that took place before the entry into force of Regulation No 1/2003 (1).

4. Fourth plea in law, alleging that the contested decision infringes Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport by characterizing, without proper analysis, contacts taking place outside the EEA, contacts relating to the WOW alliance (alliance among Japan Airlines Cargo, Lufthansa Cargo, SAS Cargo and Singapore Airlines Cargo) and contacts relating to the commissioning of surcharges as part of the same single and continuous infringement with contacts between competitors that took place at headquarter level.

5. Fifth plea in law, alleging that the contested decision infringes Article 101 TFEU and Article 53 of the EEA Agreement in so far as it is premised on the notion that contacts between competitors taking place outside the EEA constitute infringements of Article 101 TFEU and Article 53 of the EEA Agreement. According to the applicants, agreements or concerted practices with respect to EEA inbound cargo shipments do not restrict competition within the EEA, nor do they affect trade between the Member States. Moreover, so the applicants claim, the contested decision applies the wrong legal standard in analysing whether government intervention in a number of relevant jurisdictions precludes the application of Article 101 TFEU and Article 53 of the EEA Agreement.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003, L 1, p. 1).