JUDGMENT OF THE GENERAL COURT (Fourth Chamber, Extended Composition)

30 March 2022 ( *1 )

(Competition – Agreements, decisions and concerted practices – Market for airfreight – Decision finding an infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport – Coordination of elements of the price of airfreight services (fuel surcharge, security surcharge, payment of commission on surcharges) – Exchange of information – Territorial jurisdiction of the Commission – Article 266 TFEU – Limitation period – Rights of the defence – Non-discrimination – Single and continuous infringement – Amount of the fine – Value of sales – Gravity of the infringement – Additional amount – Mitigating circumstances – Encouragement of the anticompetitive conduct by public authorities – Substantially limited involvement – Proportionality – Unlimited jurisdiction)

In Case T‑340/17,

Japan Airlines Co. Ltd, established in Tokyo (Japan), represented by J.‑F. Bellis and K. Van Hove, lawyers, and R. Burton, Solicitor,

applicant,

v

European Commission, represented by A. Dawes, G. Koleva and C. Urraca Caviedes, acting as Agents, and by J. Holmes QC,

defendant,

APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case AT.39258 – Airfreight) in so far as it relates to the applicant and, in the alternative, for a reduction in the amount of the fine imposed on the applicant,

THE GENERAL COURT (Fourth Chamber, Extended Composition),

composed of H. Kanninen (Rapporteur), President, J. Schwarcz, C. Iliopoulos, D. Spielmann and I. Reine, Judges,

Registrar: L. Ramette, Administrator,

having regard to the written part of the procedure and further to the hearing on 3 July 2019,

gives the following

Judgment

I. Background to the dispute

1 The applicant, Japan Airlines Co. Ltd, formerly Japan Airlines International Co. Ltd, is an air transport company. At the material time, the applicant was a subsidiary of Japan Airlines Corp., which has been absorbed by the applicant, its legal successor. It is active on the market for airfreight (‘freight’) services through one of its divisions, named JAL Cargo.

2 In the freight sector, airlines provide for the carriage of cargo by air (‘carriers’). As a general rule, carriers supply freight services to freight forwarders, who arrange the transport of that cargo on behalf of shippers. In return, those freight forwarders pay the carriers a price consisting, on the one hand, of rates calculated on a per-kilogram basis and negotiated either on a long-term basis (typically one season, namely six months) or on an ad-hoc basis, and, on the other hand, of various surcharges, which are intended to cover certain costs.

3 There are four different types of carrier: first, those which exclusively operate dedicated freighter airplanes, second, those with cargo capacity on passenger flights, third, those with both dedicated freighter airplanes and with cargo capacity on passenger flights (combination airlines) and, fourth, integrators with dedicated freighter airplanes providing both integrated express delivery services and general cargo services.

4 No carrier is able to serve all major cargo destinations in the world with sufficient frequency, and therefore agreements among carriers enabling them to increase their network coverage or improve their schedules have become common, including in the context of broader commercial alliances between carriers. At the material time, those alliances included inter alia the WOW alliance, which brought together Deutsche Lufthansa AG (‘Lufthansa’), SAS Cargo Group A/S (‘SAS Cargo’), Singapore Airlines Cargo Pte Ltd (‘SAC’) and the applicant.

A. Administrative procedure

5 On 7 December 2005, the Commission of the European Communities received an application for immunity under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) lodged by Lufthansa and its subsidiaries, Lufthansa Cargo AG and Swiss International Air Lines AG (‘Swiss’). The application alleged that extensive anticompetitive contacts were being maintained between a number of carriers with regard, inter alia, to: – the fuel surcharge (‘FSC’), which had been introduced to tackle rising fuel costs; – the security surcharge (‘SSC’), which had been introduced to address the costs of certain security measures imposed following the terrorist attacks of 11 September 2001.

6 On 14 and 15 February 2006, the Commission carried out unannounced inspections at the premises of a number of carriers pursuant to Article 20 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1).

7 Following the inspections, a number of carriers, including the applicant, made an application under the 2002 notice referred to in paragraph 5 above.

8 On 19 December 2007, after sending a number of requests for information, the Commission addressed a statement of objections to 27 carriers, including the applicant (‘the Statement of Objections’). It stated that those carriers had infringed Article 101 TFEU, Article 53 of the Agreement on the European Economic Area (EEA) and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (‘the EC-Switzerland Air Transport Agreement’) by participating in a cartel relating, in particular, to the FSC, the SSC and a refusal to pay commission on surcharges (‘the refusal to pay commission’).

9 In response to the Statement of Objections, the addressees submitted written observations.

10 An oral hearing was held from 30 June to 4 July 2008.

B. The Decision of 9 November 2010

11 On 9 November 2010, the Commission adopted Decision C(2010) 7694 final relating to a proceeding under Article 101 [TFEU], Article 53 of the EEA Agreement and Article 8 of the [EC-Switzerland Air Transport Agreement] (Case COMP/39258 – Airfreight) (‘the Decision of 9 November 2010’). That decision is addressed to 21 carriers (‘the carriers incriminated in the Decision of 9 November 2010’), namely: – Air Canada; – Air France-KLM (‘AF-KLM’); – Société Air France (‘AF’); – Koninklijke Luchtvaart Maatschappij NV (‘KLM’); – British Airways plc; – Cargolux Airlines International SA (‘Cargolux’); – Cathay Pacific Airways Ltd (‘CPA’); – Japan Airlines Corp.; – the applicant; – Lan Airlines SA (‘Lan’); – Lan Cargo SA; – Lufthansa Cargo; – Lufthansa; – Swiss; – Martinair Holland NV (‘Martinair’); – Qantas Airways Ltd (‘Qantas’); – SAS AB; – SAS Cargo; – Scandinavian Airlines System Denmark-Norway-Sweden (‘SAS Consortium’); – SAC; – Singapore Airlines Ltd (‘SIA’).

12 The objections raised provisionally against the other addressees of the Statement of Objections were abandoned (‘the non-incriminated carriers’).

13 The grounds of the Decision of 9 November 2010 described a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement, covering the territory of the EEA and of Switzerland, by which the carriers incriminated in the Decision of 9 November 2010 had coordinated their behaviour as regards the pricing of freight services.

14 The operative part of the Decision of 9 November 2010, in so far as it related to the applicant, read as follows: ‘Article 2 The following undertakings infringed Article 101 of the TFEU by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports within the European Union and airports outside the EEA, for the following periods: … h) [Japan Airlines Corp.] from 1 May 2004 until 14 February 2006; i) [the applicant] from 1 May 2004 until 14 February 2006; … Article 3 The following undertakings infringed Article 53 of the EEA Agreement by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and third countries, for the following periods: … h) [Japan Airlines Corp.] from 19 May 2005 until 14 February 2006; i) [the applicant] from 19 May 2005 until 14 February 2006; … Article 5 For the infringements referred to in Articles 1 to 4 [of the Decision of 9 November 2010], the following fines are imposed: … h) [Japan Airlines Corp.] and [the applicant] jointly and severally: EUR 35700000; … Article 6 The undertakings listed in Articles 1 to 4 shall immediately bring to an end the infringements referred to in those Articles, insofar as they have not already done so. They shall refrain from repeating any act or conduct described in Articles 1 to 4, and from any act or conduct having the same or similar object or effect.’

C. Action challenging the Decision of 9 November 2010 before the Court

15 By application lodged at the Court Registry on 24 January 2011, the applicant brought an action seeking the annulment of the Decision of 9 November 2010, in so far as that decision concerned it and, in the alternative, a reduction in the fine imposed on it and on Japan Airlines Corp. The other carriers incriminated in the Decision of 9 November 2010, with the exception of Qantas, also brought actions against that decision before the Court.

16 By judgments of 16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994), Koninklijke Luchtvaart Maatschappij v Commission (T‑28/11, not published, EU:T:2015:995), Japan Airlines v Commission (T‑36/11, not published, EU:T:2015:992), Cathay Pacific Airways v Commission (T‑38/11, not published, EU:T:2015:985), Cargolux Airlines v Commission (T‑39/11, not published, EU:T:2015:991), Latam Airlines Group and Lan Cargo v Commission (T‑40/11, not published, EU:T:2015:986), Singapore Airlines and Singapore Airlines Cargo Pte v Commission (T‑43/11, not published, EU:T:2015:989), Deutsche Lufthansa and Others v Commission (T‑46/11, not published, EU:T:2015:987), British Airways v Commission (T‑48/11, not published, EU:T:2015:988), SAS Cargo Group and Others v Commission (T‑56/11, not published, EU:T:2015:990), Air France-KLM v Commission (T‑62/11, not published, EU:T:2015:996), Air France v Commission (T‑63/11, not published, EU:T:2015:993) and Martinair Holland v Commission (T‑67/11, EU:T:2015:984), the Court annulled, in whole or in part, the Decision of 9 November 2010 in so far as it concerned, respectively, Air Canada, KLM, the applicant and Japan Airlines Corp., CPA, Cargolux, Latam Airlines Group SA (formerly Lan Airlines) and Lan Cargo, SAC and SIA, Lufthansa, Lufthansa Cargo and Swiss, British Airways, SAS Cargo, SAS Consortium and SAS, AF-KLM, AF and Martinair. The Court found that the decision was vitiated by a defective statement of reasons.

17 In that regard, the Court held, in the first place, that the Decision of 9 November 2010 was vitiated by contradictions between the grounds and the operative part thereof. The grounds of the decision described a single and continuous infringement relating to all routes covered by the cartel, in which all the carriers incriminated in the Decision of 9 November 2010 had participated. By contrast, the operative part of that decision identified either four separate single and continuous infringements, or just one single and continuous infringement, liability for which was attributed to the carriers which, as regards the routes mentioned in Articles 1 to 4 of the decision, participated directly in the unlawful conduct referred to in each of those articles or were aware of the collusion on those routes and accepted the risk. Neither of those two readings of the operative part of the Decision of 9 November 2010 was consistent with the grounds for the decision.

18 The Court also rejected as incompatible with the grounds of the Decision of 9 November 2010 the alternative reading of the operative part proposed by the Commission, which was that the failure to mention some of the carriers incriminated in the Decision of 9 November 2010 in Articles 1, 3 and 4 of the decision could be explained by the fact that those carriers did not operate the routes referred to in those articles, and that those articles need not be interpreted as referring to separate single and continuous infringements.

19 In the second place, the Court held that the grounds of the Decision of 9 November 2010 contained significant internal inconsistencies.

20 In the third place, after noting that neither of the two possible readings of the operative part of the Decision of 9 November 2010 was consistent with the grounds thereof, the Court considered whether, in the context of at least one of those two possible readings, the internal contradictions of that decision were likely to undermine the applicant’s rights of defence and prevent the Court from conducting its review. As regards the first reading, namely that there were four separate single and continuous infringements, first of all, the Court held that the applicant had not been in a position to understand to what extent the evidence set out in the grounds and relating to the existence of a single and continuous infringement was liable to establish the existence of the four separate infringements found in the operative part, or to contest the sufficiency of that evidence. Second, it held that the applicant had not been able to understand the line of reasoning that had led the Commission to find it liable for an infringement, including in respect of routes which it did not operate within the parameters defined by each article of the Decision of 9 November 2010.

D. Contested decision

21 On 20 May 2016, following the annulment ordered by the Court, the Commission sent a letter to the carriers incriminated in the Decision of 9 November 2010 which had brought an action against that decision before the Court to inform them that its Directorate-General (DG) for Competition intended to propose to it the adoption of a new decision in which it would find that they had participated in a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement on all of the routes referred to in that decision.

22 The recipients of the Commission’s letter referred to in paragraph 21 above were invited to make known their views on the Commission DG for Competition’s intended decision within one month. All recipients, including the applicant, availed themselves of that possibility.

23 On 17 March 2017, the Commission adopted Decision C(2017) 1742 final relating to a proceeding under Article 101 [TFEU], Article 53 of the EEA Agreement and Article 8 of the [EC-Switzerland Air Transport Agreement] (Case AT.39258 – Airfreight) (‘the contested decision’). That decision is addressed to 19 carriers (‘the incriminated carriers’), namely: – Air Canada; – AF-KLM; – AF; – KLM; – British Airways; – Cargolux; – CPA; – the applicant; – Latam Airlines Group; – Lan Cargo; – Lufthansa Cargo; – Lufthansa; – Swiss; – Martinair; – SAS; – SAS Cargo; – SAS Consortium; – SAC; – SIA.

24 In the contested decision, no objections are maintained against the other addressees of the Statement of Objections.

25 The grounds of the contested decision describe a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement, by which the incriminated carriers coordinated their behaviour as regards the pricing of freight services worldwide through the FSC, the SSC and the payment of commission on surcharges.

26 In the first place, in Section 4.1 of the contested decision, the Commission described the ‘basic principles and structure of the cartel’. In recitals 107 and 108 of that decision, the Commission stated that the investigations had uncovered a worldwide cartel based on a network of bilateral and multilateral contacts over a long period of time among competitors regarding the conduct which they had decided on, intended to adopt, or contemplated adopting with regard to various elements of the charges for freight services, namely the FSC, the SSC and the refusal to pay commission. It stated that the common objective of that network of contacts was to coordinate competitors’ pricing behaviour or to reduce uncertainty with regard to their pricing policies (‘the cartel at issue’).

27 According to recital 109 of the contested decision, the objective of the coordinated application of the FSC was to ensure that carriers throughout the world imposed a flat-rate surcharge per kilo for all relevant shipments. A complex network of mainly bilateral contacts among carriers was established to coordinate and monitor the application of the FSC, the precise date of application often, according to the Commission, being decided at local level usually with the principal local carrier taking the lead and others following. That coordinated approach was extended to the SSC and to the refusal to pay commission, with the result that the latter became net revenue for the carriers and created an additional incentive for them to continue with the coordination relating to the surcharges.

28 According to recital 110 of the contested decision, senior management in the head offices of a number of airlines were either directly involved in competitor contacts or regularly informed about them. In the case of the surcharges, the responsible head-office employees were in contact with each other when a change to the surcharge level was imminent. The refusal to pay a commission on surcharges was also confirmed on a number of occasions during contacts at head-office level. There were frequent contacts also in a number of local markets, partly to better implement the instructions received from the head offices and to adapt them to the local market conditions, partly to coordinate and implement local initiatives. In this latter case, the head offices generally authorised or were informed of the proposed action.

29 According to recital 111 of the contested decision, carriers contacted each other bilaterally, in small groups and in some instances in large multilateral forums. Local associations of carrier representatives were used, in particular in Hong Kong and Switzerland, to discuss yield-improvement measures and coordinate surcharges. Meetings of alliances such as the WOW alliance were also used for such purposes.

30 In the second place, in Sections 4.3, 4.4 and 4.5 of the contested decision, the Commission described the contacts concerning, respectively, the FSC, the SSC and the refusal to pay commission (‘the contacts at issue’).

31 Thus, first, in recitals 118 to 120 of the contested decision, the Commission summarised the contacts relating to the FSC as follows: ‘(118) A network of bilateral contacts built up from late 1999/early 2000 onwards involving a number of airlines that allowed information sharing concerning the actions of the participants throughout the network. Carriers contacted each other regularly to discuss any question that came up concerning the FSC, including changes to the mechanism, changes [to] the FSC level, consequent application of the mechanism, [and] instances when some airlines did not follow the system. (119) Concerning the implementation of FSC at local level, a system was often applied whereby leading airlines on particular routes or in certain countries would announce the change first, and they would be followed by others … (120) Anti-competitive coordination concerning the FSC took place mainly in four contexts: concerning the introduction of FSC in early 2000, the reintroduction of a fuel surcharge mechanism after the revocation of the planned [International Air Transport Association (IATA)] mechanism, the introduction of new trigger points (raising the maximum level of FSC) and most frequently at the point where the fuel indices were approaching the level at which an increase or decrease in the FSC would be triggered.’

32 Second, in recital 579 of the contested decision, the Commission summarised the contacts relating to the SSC as follows: ‘A number of [incriminated carriers] discussed, among others issues, their plans whether or not to introduce a SSC … Moreover, the amount of the surcharge and the timing of the introduction were also discussed. [The incriminated carriers] furthermore shared with each other ideas concerning the justification to be given to their customers. Ad hoc contacts concerning the implementation of the SSC continued throughout the years 2002-2006. The illicit coordination took place both at head office and local level.’

33 Third, in recital 676 of the contested decision, the Commission stated that the incriminated carriers had ‘continued to refuse commission on the surcharges and [had] confirmed their relevant intentions to each other in the framework of numerous contacts’.

34 In the third place, in Section 4.6 of the contested decision, the Commission carried out the assessment of the contacts at issue. The assessment of the contacts relied on against the applicant is set out in recitals 760 to 764 of that decision.

35 In recital 765 of the contested decision, the Commission added that the applicant did not contest the facts presented in the Statement of Objections.

36 In the fourth place, in Section 5 of the contested decision, the Commission applied Article 101 TFEU to the facts of the present case, while stating, in footnote 1289 to that decision, that the considerations adopted also applied to Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement. Thus, first, in recital 846 of that decision, the Commission found that the incriminated carriers had coordinated their conduct or influenced price setting, ‘ultimately amounting to price fixing with regard to’ the FSC, the SSC and the payment of commission on surcharges. In recital 861 of that decision, the Commission described the ‘overall scheme to coordinate the pricing behaviour for [freight] services’ the investigation of which had revealed the existence of a ‘complex infringement consisting of various actions which [could] be either classified as an agreement or concerted practice, within which the competitors [had] knowingly substituted practical cooperation between them for the risks of competition’.

37 Second, in recital 869 of the contested decision, the Commission found that the ‘conduct in question [constituted] a single and continuous infringement of Article 101 of the TFEU’. It thus found that the arrangements at issue pursued a single anticompetitive aim of distorting competition in the freight sector within the EEA, including when coordination took place at local level and experienced local variations (recitals 872 to 876), concerned a ‘single product/service’, namely ‘the provision of [freight] services and the pricing thereof’ (recital 877), concerned the same undertakings (recital 878), were of a single nature (recital 879), and related to three elements, namely the FSC, the SSC and the refusal to pay commission, which were ‘frequently discussed side by side in the same competitor contact’ (recital 880).

38 In recital 881 of the contested decision, the Commission added that ‘the majority of the parties’, including the applicant, were involved in all three elements of the single infringement.

39 Third, in recital 884 of the contested decision, the Commission concluded that the infringement at issue was continuous.

40 Fourth, in recitals 885 to 890 of the contested decision, the Commission examined the relevance of contacts in third countries and of contacts concerning routes which the carriers had never operated or which they could not legally have operated. It considered that, given the worldwide nature of the cartel at issue, those contacts were relevant to establishing the existence of the single and continuous infringement. In particular, it found that the surcharges were measures of general application that were not route-specific but were intended to be applied on all routes, on a worldwide basis, including routes to and from the EEA and Switzerland. It stated that the refusal to pay commission was equally general in nature. In addition, the Commission considered that there were no insurmountable barriers that prevented carriers from providing freight services on routes which they had never operated or which they could not legally operate, in particular because of the agreements which they were able to conclude between themselves.

41 Fifth, in recital 903 of the contested decision, the Commission found that the conduct at issue had the object of restricting competition ‘at least in the [European Union], the EEA and Switzerland’. In recital 917 of that decision, the Commission added, in essence, that there was, therefore, no need to take into account the ‘actual effects’ of that conduct.

42 Sixth, in recitals 922 to 971 of the contested decision, the Commission examined the WOW alliance. In recital 971 of that decision, it concluded that: ‘Having regard to the WOW Alliance Agreement and its implementation the Commission finds that the coordination of the surcharges between the WOW [alliance] members was conducted outside the legitimate framework of the alliance that does not justify it. The members were in fact aware that such coordination is illegitimate. Furthermore, they were aware that, the coordination of surcharges involved a number of [carriers] not participating in [the WOW alliance]. Consequently, the Commission finds that the evidence concerning contacts between WOW [alliance] members … constitutes evidence of their participation in the infringement of Article 101 of the TFEU as described in this Decision.’

43 Seventh, in recitals 972 to 1021 of the contested decision, the Commission examined the legislation of seven third countries, which several of the incriminated carriers maintained had required them to collude on surcharges, thereby impeding the application of the relevant competition rules. The Commission considered that those carriers had failed to prove that they had acted under duress from those third countries.

44 Eighth, in recitals 1024 to 1035 of the contested decision, the Commission found that the single and continuous infringement was likely to have an appreciable effect on trade between Member States, between contracting parties to the EEA Agreement and between contracting parties to the EC-Switzerland Air Transport Agreement.

45 Ninth, the Commission examined the limits of its territorial and temporal jurisdiction to find and penalise an infringement of the competition rules in the present case. First, in recitals 822 to 832 of the contested decision, under the heading ‘Jurisdiction of the Commission’, the Commission stated, in essence, that it would not apply, first of all, Article 101 TFEU to agreements and practices prior to 1 May 2004 concerning routes between airports within the European Union and airports outside the EEA (‘EU-third country routes’), next, Article 53 of the EEA Agreement to agreements and practices prior to 19 May 2005 concerning EU-third country routes and routes between airports in countries that are contracting parties to the EEA Agreement but are not EU Member States and airports in third countries (‘non-EU EEA-third country routes’ and, together with EU-third country routes, ‘EEA-third country routes’) and, lastly, Article 8 of the EC-Switzerland Air Transport Agreement to agreements and practices prior to 1 June 2002 concerning routes between airports within the European Union and Swiss airports (‘EU-Switzerland routes’). It also stated that the contested decision did ‘not purport to find an infringement of Article 8 of the [EC-Switzerland Air Transport Agreement] concerning freight services on routes between Switzerland and third countries’.

46 Second, in recitals 1036 to 1046 of the contested decision, under the heading ‘The applicability of Article 101 of the TFEU and Article 53 of the EEA Agreement to inbound routes’, the Commission rejected the arguments put forward by the various incriminated carriers that it exceeded the limits of its territorial jurisdiction under the rules of public international law by finding and penalising an infringement of those two provisions on routes from third countries to the EEA (‘inbound routes’ and, as regards the freight services offered on those routes, ‘inbound freight services’). In particular, in recital 1042 of that decision, it recalled the criteria which it considered to be applicable: ‘With respect to the extra-territorial application of Article 101 of the TFEU and Article 53 of the EEA Agreement these provisions are applicable to arrangements that are either implemented within the [European Union] (implementation theory) or that have immediate, substantial and foreseeable effects within the [European Union] (effects theory).’

47 In recitals 1043 to 1046 of the contested decision, the Commission applied the criteria in question to the facts of the present case: ‘(1043) In the case of [inbound freight services], Article 101 of the TFEU and Article 53 of the EEA Agreement are applicable because the service itself that is the subject of the price fixing infringement is to be performed and is indeed performed, in part, within the territory of the EEA. Moreover, many contacts by which the addressees coordinated surcharges and the non-payment of commission took place in the EEA or involved participants in the EEA. (1044) … the example given in the [Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2008 C 95, p. 1)] is not relevant here. [That notice] relates to the geographic allocation of turnover of undertakings for the purpose of establishing whether the turnover thresholds of Article 1 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings [(OJ 2004 L 24, p. 1)] are met. (1045) In addition, anticompetitive practices in third countries with regard to … freight transportation to the EU /EEA are liable to have immediate, substantial and foreseeable effects within the EU /EEA, as the increased costs of air transport to the EEA, and consequently higher prices of imported goods, are by their very nature liable to have effects on consumers in the EEA. In this case the anticompetitive practices eliminating competition between carriers offering [inbound freight services] were liable to have such effects also on the provision of [freight] services by other carriers within the EEA, between the different hub airports used by carriers from third countries in the EEA and airports of destination of those shipments in the EEA to which the carrier from the third country does not fly. (1046) Finally, it has to be underlined that the Commission has found a world-wide cartel. The cartel was implemented globally and the cartel arrangements concerning inbound routes formed an integral part of the single and continuous infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement. The cartel arrangements were in many cases organised centrally and the local personnel were merely implementing them. The uniform application of the surcharges on a world wide scale was a key element of the cartel.’

48 In the fifth place, in recital 1146 of the contested decision, the Commission found that the cartel at issue had started on 7 December 1999 and lasted until 14 February 2006. In the same recital, it stated that the cartel had infringed: – Article 101 TFEU, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the European Union; – Article 101 TFEU, from 1 May 2004 to 14 February 2006, as regards air transport on EU-third country routes; – Article 53 of the EEA Agreement, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the EEA (‘intra-EEA routes’); – Article 53 of the EEA Agreement, from 19 May 2005 to 14 February 2006, as regards air transport on non-EU EEA-third country routes; – Article 8 of the EC-Switzerland Air Transport Agreement, from 1 June 2002 to 14 February 2006, as regards air transport on EU-Switzerland routes.

49 In so far as the applicant is concerned, the Commission found that the duration of the infringement was from 7 December 1999 to 14 February 2006.

50 In the sixth place, in Section 8 of the contested decision, the Commission examined the remedies to be taken and the fines to be imposed.

51 As regards, in particular, its determination of the amount of the fines, the Commission stated that it took into account the gravity and duration of the single and continuous infringement as well as possible aggravating and mitigating circumstances. To that end, it applied the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’).

52 In recitals 1184 and 1185 of the contested decision, the Commission stated that the basic amount of the fine consisted of a proportion of up to 30% of the value of the undertaking’s sales, depending on the gravity of the infringement, multiplied by the number of years of the undertaking’s participation in the infringement, plus an additional amount of between 15 and 25% of the value of sales (‘the additional amount’).

53 In recital 1197 of the contested decision, the Commission determined the value of sales by adding together, for 2005 – that being the last full year of the single and continuous infringement – turnover from flights in both directions on intra-EEA routes, on EU-third country routes, on EU-Switzerland routes and on non-EU EEA-third country routes. It also took into account the accession of new Member States to the European Union in 2004.

54 In recitals 1198 to 1212 of the contested decision, taking into account the nature of the infringement (horizontal price-fixing agreements), the combined market share of the incriminated carriers (34% worldwide and at least as high on intra-EEA routes and EEA-third country routes), the geographic scope of the cartel at issue (worldwide) and the fact that the cartel had actually been implemented, the Commission set the gravity factor at 16%.

55 In recitals 1214 to 1217 of the contested decision, the Commission determined the duration of the applicant’s participation in the single and continuous infringement as follows, according to the routes concerned: – in so far as concerns intra-EEA routes, from 7 December 1999 to 14 February 2006, equating to six years and two months and giving rise to a multiplier of 62/12; – in so far as concerns EU-third country routes, from 1 May 2004 to 14 February 2006, equating to one year and nine months and giving rise to a multiplier of 19/12; – in so far as concerns EU-Switzerland routes, from 1 June 2002 to 14 February 2006, equating to three years and eight months and giving rise to a multiplier of 38/12; – in so far as concerns non-EU EEA-third country routes, from 19 May 2005 to 14 February 2006, equating to eight months and giving rise to a multiplier of 8/12.

56 In recital 1219 of the contested decision, the Commission found that, given the specific circumstances of the case and taking into account the criteria mentioned in paragraph 54 above, the additional amount should be set at 16% of the value of sales.

57 Consequently, in recitals 1240 to 1242 of the contested decision, the basic amount to be imposed on the applicant was assessed at EUR 113000000 and, after a reduction of 50% on the basis of point 37 of the 2006 Guidelines (‘the general 50% reduction’) to reflect the fact that part of the services relating to inbound routes and routes from the EEA to third countries (‘outbound routes’) was performed outside the territory covered by the EEA Agreement and that part of the harm was therefore likely to occur outside that territory, the basic amount of the applicant’s fine was fixed at EUR 56000000.

58 In recitals 1264 and 1265 of the contested decision, in accordance with point 29 of the 2006 Guidelines, the Commission granted the incriminated carriers an additional reduction of 15% in the basic amount of the fine (‘the general 15% reduction’) on the ground that certain regulatory regimes had encouraged the cartel at issue.

59 Consequently, in recital 1293 of the contested decision, the Commission set the basic amount of the applicant’s fine, after adjustment, at EUR 47600000.

60 In recitals 1314 to 1322 of the contested decision, the Commission took into account the applicant’s contribution in the context of its leniency application and applied a reduction of 25% to the amount of the fine, with the result that, as stated in recital 1404 of the contested decision, the amount of the fine imposed on the applicant was set at EUR 35700000.

61 The operative part of the contested decision, in so far as the present dispute is concerned, reads as follows: ‘Article 1 By coordinating their pricing behaviour in the provision of [freight] services on a global basis with respect to the [FSC], the [SSC] and the payment of commission payable on surcharges, the following undertakings have committed the following single and continuous infringement of Article 101 [TFEU], Article 53 of [the EEA Agreement] and Article 8 of [the EC-Switzerland Air Transport Agreement] as regards the following routes and for the following periods. (1) The following undertakings have infringed Article 101 of the TFEU and Article 53 of the EEA Agreement as regards [intra-EEA routes], for the following periods: … (h) [the applicant] from 7 December 1999 until 14 February 2006; … (2) The following undertakings infringed Article 101 of the TFEU as regards [EU-third country routes], for the following periods: … (h) [the applicant] from 1 May 2004 until 14 February 2006; … (3) The following undertakings infringed Article 53 of the EEA Agreement as regards [non-EU EEA-third country routes], for the following periods: … (h) [the applicant] from 19 May 2005 until 14 February 2006; … (4) The following undertakings infringed Article 8 of the [EC-Switzerland Air Transport Agreement] as regards [EU-Switzerland routes], for the following periods: … (h) [the applicant] from 1 June 2002 until 14 February 2006; … Article 2 [The Decision of 9 November 2010] is amended as follows: In Article 5, points (j), (k) and (l) are repealed. Article 3 For the single and continuous infringement referred to in Article 1 (and as regards British Airways … also for the aspects of Articles 1 to 4 of [the Decision of 9 November 2010] that have become final), the following fines are imposed: … (h) [the applicant]: EUR 35700000; … Article 4 The undertakings listed in Article 1 shall immediately bring to an end the single and continuous infringement referred to in that article in so far as they have not already done so. They shall also refrain from repeating any act or conduct having the same or similar object or effect. Article 5 This Decision is addressed to: … [the applicant] …’

II. Procedure and forms of order sought

62 By application lodged at the Court Registry on 30 May 2017, the applicant brought the present action.

63 The Commission lodged its defence at the Court Registry on 29 September 2017.

64 The applicant lodged its reply at the Court Registry on 2 January 2018.

65 The Commission lodged its rejoinder at the Court Registry on 8 March 2018.

66 On 24 April 2019, on a proposal from the Fourth Chamber, the Court decided, pursuant to Article 28 of its Rules of Procedure, to refer the present case to a chamber sitting in extended composition.

67 On 17 June 2019, in the context of the measures of organisation of procedure laid down in Article 89 of the Rules of Procedure, the Court put written questions to the parties. The parties replied within the prescribed period.

68 At the hearing on 3 July 2019, the parties presented oral argument and answered the questions put by the Court.

69 By order of 19 June 2020, the Court (Fourth Chamber, Extended Composition), considering that it lacked sufficient information and that it was necessary to invite the parties to submit their observations concerning an argument which had not been debated between them, ordered the reopening of the oral part of the procedure pursuant to Article 113 of the Rules of Procedure.

70 The parties replied within the prescribed period to a series of questions put by the Court on 22 June 2020, and then submitted observations on their respective replies.

71 By decision of 4 August 2020, the Court again closed the oral part of the procedure.

72 The applicant claims that the Court should: – annul the contested decision in so far as it concerns it; – in the alternative, reduce the fine imposed on it in the contested decision; – order the Commission to pay the costs.

73 The Commission contends, in essence, that the Court should: – dismiss the action; – alter the amount of the fine imposed on the applicant by withdrawing the benefit of the general 50% reduction and the general 15% reduction, should the Court find that the turnover from the sale of inbound freight services could not be included in the value of sales; – order the applicant to pay the costs.

III. Law

74 In its action, the applicant puts forward both a claim for annulment of the contested decision and a claim for a reduction in the amount of the fine imposed on it. The Commission, for its part, made an application seeking, in essence, an alteration of the amount of the fine imposed on the applicant, should the Court find that the turnover from the sale of inbound freight services could not be included in the value of sales.

A. The claim for annulment

75 The applicant puts forward 10 pleas in law in support of its claim for annulment. Those pleas allege: – first, breach of the ne bis in idem principle, infringement of Article 266 TFEU and expiry of the limitation period; – second, breach of the principle of non-discrimination; – third, infringement of Article 101 TFEU, Article 53 of the EEA Agreement and the obligation to state reasons as regards, on the one hand, the imputation to the applicant of liability for the single and continuous infringement on intra-EEA routes and EU-Switzerland routes for the period prior to 1 May 2004 and, on the other hand, the determination of the date on which its participation in that infringement began; – fourth, infringement of Article 101 TFEU and Article 53 of the EEA Agreement as regards the imputation to the applicant of liability for the single and continuous infringement on routes on which it was not an actual or potential competitor; – fifth, a lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services; – sixth, breach of the rights of the defence, of the principle of non-discrimination and of the principle of proportionality as regards the application of different evidential requirements to different carriers; – seventh, infringement of the 2006 Guidelines and breach of the principle of proportionality concerning, on the one hand, the determination of the value of sales and, on the other hand, the setting of the gravity factor and the additional amount; – eighth, infringement of the 2006 Guidelines and breach of the principle of the protection of legitimate expectations as regards the inclusion in the value of sales of turnover from the sale of inbound freight services to customers outside the EEA; – ninth, breach of the principle of proportionality on account of the inadequacy of the general 15% reduction; and – tenth, breach of the principle of non-discrimination, of the principle of proportionality and, in essence, of the obligation to state reasons as regards the Commission’s refusal to grant it a 10% reduction in the amount of the fine on account of its limited involvement in the single and continuous infringement.

76 The Court considers it appropriate to examine, first of all, the fifth plea, then, the plea raised of its own motion, alleging that the Commission lacked jurisdiction in the light of the EC-Switzerland Air Transport Agreement to find and penalise an infringement on non-EU EEA-Switzerland routes, and, lastly, the first to fourth and sixth to tenth pleas in turn.

1. The fifth plea, alleging a lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services

77 The applicant submits that the Commission lacked jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services, which the Commission disputes.

78 It should be recalled that, as regards conduct adopted outside the territory of the EEA, the Commission’s jurisdiction under public international law to find and punish an infringement of Article 101 TFEU or Article 53 of the EEA Agreement may be established on the basis of the implementation test or the qualified effects test (see, to that effect, judgments of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 40 to 47, and of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraphs 95 to 97).

79 Those tests are alternative and not cumulative (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 98; see also, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 62 to 64).

80 In recitals 1043 to 1046 of the contested decision, the Commission, as the applicant acknowledges, relied both on the implementation test and on the qualified effects test as a basis under public international law for its jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes.

81 Since the applicant alleges an error in the application of each of those two tests, the Court considers it appropriate to examine first of all whether the Commission was entitled to rely on the qualified effects test. In accordance with the case-law cited in paragraph 79 above, only if this was not the case will it be necessary to ascertain whether the Commission could rely on the implementation test.

82 The applicant submits that the purported effects of the conduct at issue cannot justify the application of Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services. The Commission, which bears the burden of proof, has failed to establish that that conduct had any immediate, substantial and foreseeable effect within the EEA.

83 The applicant submits, relying on the Guidelines on the effect on trade concept contained in Articles [101] and [102 TFEU] (OJ 2004 C 101, p. 81), that the effects on which the Commission relies in recital 1045 of the contested decision are, at best, speculative and, in any event, too remote to substantiate the ground that the conduct at issue restricted competition within the EEA.

84 In particular, the Commission has adduced no evidence to support its contention that the price of goods sold in the EEA would be affected by the prices of inbound freight services. Moreover, such an effect could not be substantial, since the surcharges represent only a fraction of the total cost of freight services, and the cost of those freight services itself represents only a fraction of the cost of the goods imported into the EEA. Nor, by definition, could such an effect be immediate, since customers are free to choose whether or not to pass on any increase in the prices of inbound freight services in the price of imported goods and, if so, to decide the proportions in which they pass it on. Lastly, such an effect was not foreseeable, given that the applicant does not even operate on the upstream markets concerned and that surcharges form only a minuscule fraction of the cost of the transport of goods.

85 In addition, the effect of increasing the price of goods imported into the EEA relates to a market different from the one at issue in the present case, that is to say, the market for freight services, and so it cannot form the basis for the ground that the conduct at issue restricted competition within the EEA.

86 Furthermore, in order to establish the Commission’s jurisdiction to find and penalise an infringement of the competition rules, it is not sufficient to characterise conduct as a single and continuous infringement without analysing its anticompetitive effects.

87 The Commission disputes the applicant’s line of argument.

88 In the contested decision, the Commission relied, in essence, on three separate grounds in order to find that the qualified effects test was satisfied in the present case.

89 The first two grounds are set out in recital 1045 of the contested decision. As the Commission confirmed in reply to the written and oral questions put by the Court, those grounds concern the effects of coordination in relation to inbound freight services taken in isolation. The first ground is that the ‘increased costs of air transport to the EEA, and consequently higher prices of imported goods, [were] by their very nature liable to have effects on consumers in the EEA’. The second ground concerns the effects of coordination in relation to inbound freight services ‘also on the provision of [freight] services by other carriers within the EEA, between the different hub airports used by carriers from third countries in the EEA and airports of destination of those shipments in the EEA to which the carrier from the third country does not fly’.

90 The third ground is set out in recital 1046 of the contested decision and concerns, as is apparent from the Commission’s answers to the written and oral questions put by the Court, the effects of the single and continuous infringement taken as a whole.

91 The Court considers it appropriate to examine both the effects of coordination in relation to inbound freight services taken in isolation and the effects of the single and continuous infringement taken as a whole, starting with the former.

(a) The effects of coordination in relation to inbound freight services taken in isolation

92 It is appropriate to examine, first of all, the merits of the first ground on which the Commission’s conclusion that the qualified effects test is satisfied in the present case (‘the effect at issue’) is based.

93 In that regard, it should be recalled that, as is apparent from recital 1042 of the contested decision, the qualified effects test allows the application of the EU and EEA competition rules to be justified under public international law when it is foreseeable that the conduct at issue will have an immediate and substantial effect in the internal market or within the EEA (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 49; see also, to that effect, judgment of 25 March 1999, Gencor v Commission, T‑102/96, EU:T:1999:65, paragraph 90).

94 In the present case, the applicant disputes the relevance of the effect at issue (see paragraphs 95 to 114 below) and its foreseeability (see paragraphs 116 to 131 below), its substantiality (see paragraphs 132 to 142 below) and its immediacy (see paragraphs 143 to 153 below).

(1) The relevance of the effect at issue

95 It is apparent from the case-law that the fact that an undertaking participating in an agreement or concerted practice is situated in a third country does not prevent the application of Article 101 TFEU and Article 53 of the EEA Agreement, if that agreement or practice is operative, respectively, in the internal market or within the EEA (see, to that effect, judgment of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 11).

96 The purpose of applying the qualified effects test is precisely to prevent conduct which, while not adopted within the EEA, has anticompetitive effects liable to have an impact in the internal market or within the EEA (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 45).

97 Contrary to what the applicant submits, that test does not require it to be established that the conduct at issue ‘in fact had any anticompetitive effect’ in the internal market or within the EEA. On the contrary, according to the case-law, it is sufficient to take account of the probable effects of that conduct on competition (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 51).

98 It is for the Commission to ensure the protection of competition in the internal market or within the EEA against threats to its effective functioning.

99 Where conduct has been found by the Commission, as in the present case, to reveal a degree of harmfulness to competition in the internal market or within the EEA such that it could be classified as a restriction of competition by ‘object’ within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement, the application of the qualified effects test also cannot require the demonstration of the actual effects which classification of conduct as a restriction of competition by ‘effect’ within the meaning of those provisions presupposes.

100 In that regard, it should be recalled, as the applicant submits, that the qualified effects test is enshrined in the wording of Article 101 TFEU and Article 53 of the EEA Agreement, which are intended to prevent agreements and practices limiting competition within the internal market and within the EEA, respectively. Those provisions prohibit agreements and practices of undertakings which have as their object or effect the prevention, restriction or distortion of competition ‘within the internal market’ and ‘within the territory covered by [the EEA Agreement]’, respectively (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 42).

101 It is settled case-law that anticompetitive object and anticompetitive effect are not cumulative but alternative conditions for assessing whether conduct falls within the scope of the prohibitions laid down in Article 101 TFEU and Article 53 of the EEA Agreement (see, to that effect, judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 28 and the case-law cited).

103 In those circumstances, interpreting the qualified effects test as the applicant appears to advocate, as requiring proof of the actual effects of the conduct at issue even where there is a restriction of competition by ‘object’, would amount to making the Commission’s jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement subject to a condition which has no basis in the wording of those provisions.

104 The applicant cannot therefore validly claim that the Commission erred in finding that the qualified effects test was satisfied, even though it had, in recitals 917, 1190 and 1277 of the contested decision, stated that it was not required to make any assessment of the anticompetitive effects of the conduct at issue in the light of the anticompetitive object thereof. Nor can the applicant deduce from those recitals that the Commission did not carry out any analysis of the effects produced by that conduct in the internal market or within the EEA for the purposes of applying that test.

105 In recital 1045 of the contested decision, the Commission considered, in essence, that the single and continuous infringement, in so far as it related to inbound routes, was liable to increase the amount of the surcharges and, consequently, the total price of inbound freight services and that freight forwarders had passed on that additional cost to shippers based in the EEA, who had had to pay a higher price for the goods they had purchased than would have been charged in the absence of that infringement.

106 None of the applicant’s arguments permits the inference that the effect at issue was not among the effects produced by the conduct at issue which the Commission is entitled to take into account for the purposes of applying the qualified effects test.

107 In the first place, contrary to what is claimed by the applicant, there is nothing in the wording, scheme or purpose of Article 101 TFEU to suggest that the effects taken into account for the purposes of applying the qualified effects test must occur on the same market as that concerned by the infringement at issue rather than on a downstream market, as in the present case (see, to that effect, judgment of 9 September 2015, Toshiba v Commission, T‑104/13, EU:T:2015:610, paragraphs 159 and 161).

108 In the second place, the applicant is incorrect in claiming that the conduct at issue, in so far as it relates to inbound routes, was not capable of restricting competition in the EEA, on the ground that that conduct took place only in third countries where the freight forwarders who sourced inbound freight services from the incriminated carriers are established.

109 In that regard, it should be noted that the qualified effects test must be applied in the light of the economic and legal context of the conduct at issue (see, to that effect, judgment of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 13).

110 In the present case, it is apparent from recitals 14, 17 and 70 of the contested decision and from the parties’ replies to the Court’s measures of organisation of procedure that the carriers sell their freight services exclusively or almost exclusively to freight forwarders. As regards inbound freight services, almost all those sales take place at the origin of the routes in question, outside the EEA, where those freight forwarders are established. It is apparent from the application that, between 1 May 2004 and 14 February 2006, the applicant achieved only a negligible proportion of its sales of inbound freight services to customers based in the EEA.

111 It must, however, be observed that, although freight forwarders purchase those services, they do so in particular as intermediaries, in order to consolidate them into a package of services the purpose of which is, by definition, to organise the integrated transport of goods to the territory of the EEA on behalf of shippers. As is apparent from recital 70 of the contested decision, the latter may in particular be the purchasers or owners of the goods transported. It is therefore at the very least likely that they are established in the EEA.

112 It follows that, provided that the freight forwarders pass any additional costs resulting from the cartel at issue on to the price of their service packages, it is in particular on competition that occurs between freight forwarders in order to attract those shippers as customers that the single and continuous infringement, in so far as it concerns inbound routes, is liable to have an impact and, consequently, it is in in the internal market or within the EEA that the effect at issue is liable to materialise.

113 In the third place, as regards paragraph 43 of the guidelines referred to in paragraph 83 above, it is sufficient to note that it concerns a different situation from that envisaged in the present case and that it relates, in any event, to the concept of effects on trade between Member States for the purposes of Article 101(1) TFEU, not the issue of the territorial jurisdiction of the Commission under the qualified effects test. These are two distinct issues, the first concerning the definition of the area covered by EU competition law in the light of the law of the Member States (judgment of 13 July 2006, Manfredi and Others, C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 41), while the second concerns the justification of the Commission’s jurisdiction under public international law (see paragraph 78 above)

114 Consequently, the additional cost which shippers might have had to pay and the higher prices of goods imported into the EEA which may have resulted are among the effects produced by the conduct at issue on which the Commission was entitled to rely for the purposes of applying the qualified effects test.

115 In accordance with the case-law cited in paragraph 93 above, the question is therefore whether that effect has the required foreseeability, substantiality and immediacy.

(2) The foreseeability of the effect at issue

116 The requirement of foreseeability seeks to ensure legal certainty by guaranteeing that the undertakings concerned may not be penalised on account of effects which might indeed result from their conduct but which they could not reasonably expect to occur (see, to that effect, Opinion of Advocate General Kokott in Otis Gesellschaft and Others, C‑435/18, EU:C:2019:651, point 83).

117 Effects the occurrence of which the members of the cartel at issue ought reasonably to take into consideration on the basis of practical experience thus satisfy the requirement of foreseeability, unlike effects which result from an entirely extraordinary train of events and, therefore, ensue via an atypical causal chain (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, point 42).

118 It is apparent from recitals 846, 909, 1199 and 1208 of the contested decision that what is at issue in the present case is collusive horizontal price-fixing behaviour, experience of which shows that it leads inter alia to price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (see, to that effect, judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 51).

119 It is also apparent from recitals 846, 909, 1199 and 1208 of the contested decision that the conduct related to the FSC, the SSC and the refusal to pay commission.

120 In the present case, it was therefore foreseeable for the incriminated carriers that the horizontal fixing of the FSC and the SSC would lead to an increase in the level of the FSC and the SSC. As is apparent from recitals 874, 879 and 899 of the contested decision, the refusal to pay commission was liable to reinforce such an increase. It amounted to a concerted refusal to grant freight forwarders rebates on surcharges, by which the incriminated carriers ‘ensured that pricing uncertainty, which could have arisen from competition on commission payments [in the context of negotiations with freight forwarders], remained suppressed’ (recital 874 of that decision) and thus aimed to eliminate competition in respect of surcharges (recital 879 of that decision).

121 It is apparent from recital 17 of the contested decision that the price of freight services is made up of rates and surcharges, including the FSC and SSC. Unless it were considered that an increase in the FSC and the SSC would, as a result of a sufficiently probable ‘waterbed effect’, be offset by a corresponding reduction in rates and other surcharges, such an increase was, in principle, liable to lead to an increase in the total price of inbound freight services. The applicant has failed to demonstrate that a ‘waterbed effect’ was so probable as to render the effect at issue unforeseeable.

122 In those circumstances, the members of the cartel at issue could reasonably have foreseen that the single and continuous infringement would have the effect, in so far as it concerned inbound freight services, of increasing the price of freight services on inbound routes.

123 The question is therefore whether it was foreseeable for the incriminated carriers that freight forwarders would pass on such additional costs to their own customers, namely shippers.

124 In that regard, it is apparent from recitals 14 and 70 of the contested decision that the price of freight services constitutes an input for freight forwarders. It is a variable cost, the increase in which, in principle, has the effect of increasing the marginal cost in the light of which the freight forwarders determine their own prices.

125 The applicant does not put forward any evidence demonstrating that the circumstances of the present case were not conducive to passing on the additional costs resulting from the single and continuous infringement on inbound routes to shippers downstream.

126 In those circumstances, it was reasonably foreseeable for the incriminated carriers that freight forwarders would pass on such additional costs to shippers through an increase in the price of freight-forwarding services.

127 As is apparent from recitals 70 and 1031 of the contested decision, the cost of goods the integrated transportation of which is generally organised by freight forwarders on behalf of shippers incorporates the price of freight-forwarding services and in particular the cost of freight services, which are a constituent element thereof.

128 In the light of the foregoing, it was therefore foreseeable for the incriminated carriers that the single and continuous infringement would have the effect, in so far as it related to inbound routes, of increasing the price of imported goods.

129 For the reasons set out in paragraph 111 above, it was equally foreseeable for the incriminated carriers that, as is apparent from recital 1045 of the contested decision, that effect would occur in the EEA.

130 Since the effect at issue was part of the normal course of events and was economically rational, it was not, contrary to what the applicant submits, necessary for the applicant to operate on the market for importing goods or the downstream resale market for those goods in order to be able to foresee it.

131 It must therefore be concluded that the Commission has established to the requisite standard that the effect at issue was foreseeable.

(3) The substantiality of the effect at issue

132 The assessment of whether the effects produced by the conduct at issue are substantial must be carried out in the light of all the relevant circumstances of the case. Those circumstances include, inter alia, the duration, nature and scope of the infringement. Other circumstances, such as the size of the undertakings which participated in that conduct, may also be relevant (see, to that effect, judgments of 9 September 2015, Toshiba v Commission, T‑104/13, EU:T:2015:610, paragraph 159, and of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 112).

133 Where the effect under consideration relates to an increase in the price of a finished product or service derived from or containing the cartelised service, the proportion of the price of the finished product or service represented by the cartelised service may also be taken into account.

134 In the present case, in the light of all the relevant circumstances, it must be held that the effect at issue, relating to the increase in the price of goods imported into the EEA, is substantial.

135 In the first place, it is apparent from recital 1146 of the contested decision that the single and continuous infringement lasted 21 months in so far as it concerned EU-third country routes and 8 months in so far as it concerned non-EU EEA-third country routes. It is apparent from recitals 1215 and 1217 of that decision that this is also the duration of all the incriminated carriers’ participation, with the exception of Lufthansa Cargo and Swiss.

136 In the second place, as regards the scope of the infringement, it is apparent from recital 889 of the contested decision that the FSC and the SSC were ‘measures of general application that [were] not route specific’ and ‘were intended to be applied on all routes, on a worldwide basis, including routes to … the EEA’.

137 In the third place, as regards the nature of the infringement, it is apparent from recital 1030 of the contested decision that the object of the single and continuous infringement was to restrict competition between the incriminated carriers, inter alia on EEA-third country routes. In recital 1208 of that decision, the Commission concluded that the ‘fixing of various elements of the price, including particular surcharges, constitute[d] one of the most harmful restrictions of competition’ and therefore found that the single and continuous infringement merited the application of a gravity factor ‘at the higher end of the scale’ provided for in the 2006 Guidelines.

138 For the sake of completeness, as regards the proportion of the price of the cartelised service in the product or service which is derived from it or contains it, it should be noted that, contrary to what the applicant submits, during the infringement period the surcharges represented a significant proportion of the total price of freight services.

139 It is thus apparent from a letter of 8 July 2005 from the Hong Kong Association of Freight Forwarding & Logistics to the Chairman of the Cargo Sub-Committee (‘the CSC’) of the Hong Kong Board of Airline Representatives (‘the BAR’) that the surcharges represent a ‘very significant part’ of the total price of the air waybills which the freight forwarders were required to pay. Similarly, in the table reproduced in paragraph 135 of the application, it is stated that the surcharges represented 11.87% of the price of freight services on the applicant’s EEA-third country routes during the 2004/2005 financial year.

140 As is apparent from recital 1031 of the contested decision, the price of freight services was itself a ‘significant cost element of the goods transported that has an impact on their sale’. It is true that the applicant disputes this, but it merely makes assertions.

141 Again for the sake of completeness, as regards the size of the undertakings that participated in the conduct at issue, it is apparent from recital 1209 of the contested decision that the combined market share of the incriminated carriers on the ‘worldwide market’ was 34% in 2005 and was ‘at least as high’ for freight services provided on EEA-third country routes, which included both outbound and inbound routes. Moreover, during the infringement period, the applicant itself achieved a significant turnover on the inbound routes, in excess of EUR 140000000 in 2005.

142 It must therefore be concluded that the Commission has established to the requisite standard that the effect at issue was substantial.

(4) The immediacy of the effect at issue

143 The requirement of immediacy of the effects produced by the conduct at issue relates to the causal link between the conduct at issue and the effect under consideration. The purpose of that requirement is to ensure that the Commission cannot, in order to justify its jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement, rely on all possible effects, however remote, for which that conduct might have been the cause in the sense of a conditio sine qua non (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, points 33 and 34).

144 The direct causal link must not however be regarded as being the same as a single causal link, which would mean always finding as a matter of course that the chain of causality is broken where the action of a third party was a contributory cause of the effects at issue (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, points 36 and 37).

145 In the present case, the intervention of freight forwarders, in respect of which it was foreseeable that, with complete independence, they would pass on to shippers the additional costs that they had had to pay is indeed capable of having contributed to the occurrence of the effect at issue. However, that intervention was not in itself such as to break the causal chain between the conduct at issue and that effect and thus deprive it of its immediacy.

146 On the contrary, where it is not wrongful, but objectively results from the cartel at issue, in accordance with the normal functioning of the market, such an intervention does not break the causal chain (see, to that effect, judgment of 14 December 2005, CD Cartondruck v Council and Commission, T‑320/00, not published, EU:T:2005:452, paragraphs 172 to 182), but continues it (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C‑557/12, EU:C:2014:45, point 37).

147 In the present case, the applicant has not established, or even alleged, that the foreseeable passing on of the additional costs to shippers located in the EEA is wrongful or extraneous to the normal functioning of the market.

148 It follows that the effect at issue has the required immediacy.

149 That conclusion cannot be called into question by the applicant’s argument that, in order to affect ‘consumers in the EEA’, to which the Commission refers in recital 1045 of the contested decision, a ‘hypothetical price increase would have had to be passed on from the freight forwarder to the shipper, then from the shipper to the importer, and then possibly further from the importer to the wholesaler, from the wholesaler to the retailer and ultimately from the retailer to the consumer’. That argument is based on two incorrect premisses.

150 The first of the premisses at issue is that the ‘consumers in the EEA’ referred to in recital 1045 of the contested decision are end consumers, that is to say, natural persons who are acting for purposes outside their trade or profession. The concept of consumer in competition law does not refer only to end consumers but to all users, whether direct or indirect, of the goods or services which were the subject of the conduct at issue (see, to that effect, Opinion of Advocate General Mengozzi in MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:42, point 156).

151 It is apparent from recital 70 of the contested decision, the merits of which have not been effectively disputed by the applicant, that ‘shippers may be the purchasers or sellers of traded goods or the owners of goods that need to be moved rapidly over relatively long distances’. In its pleadings, the Commission stated that those goods could be imported for their direct consumption or as inputs for the production of other products. As regards inbound freight services, those shippers may, as the Commission rightly points out, be based in the EEA. The reference to ‘consumers in the EEA’ in recital 1045 of the contested decision must therefore be interpreted as including shippers.

152 The second of the premisses at issue is that, even if the reference to ‘consumers in the EEA’ in recital 1045 of the contested decision were to encompass only end consumers, the latter could acquire the imported goods only from a retailer, which could itself acquire them only from a wholesaler, which could in turn only acquire them from an importer and so on. End consumers are also likely to acquire those goods directly from the shipper.

153 It follows from the foregoing that the effect at issue is sufficiently foreseeable, substantial and immediate and that the first ground on which the Commission relied in order to conclude that the qualified effects test was satisfied is well founded. It must therefore be held that the Commission could, without making any error, find that that test was satisfied as regards coordination in relation to inbound freight services taken in isolation, without there being any need to examine the merits of the second ground relied on in recital 1045 of the contested decision.

(b) The effects of the single and continuous infringement taken as a whole

154 It should be noted at the outset that, contrary to what the applicant suggests in the reply, there is nothing to prevent an assessment of whether the Commission has the necessary jurisdiction to apply, in each case, EU competition law in the light of the conduct of the undertaking or undertakings in question, viewed as a whole (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 50).

155 According to the case-law, Article 101 TFEU may be applied to practices and agreements that serve the same anticompetitive objective, provided that it is foreseeable that, taken together, they will have immediate and substantial effects in the internal market. Undertakings cannot be allowed to avoid the application of the EU competition rules by combining a number of types of conduct that pursue the same objective, each of which, taken on its own, is not capable of producing an immediate and substantial effect in that market, but which, taken together, are capable of producing such an effect (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 106).

156 The Commission may thus base its jurisdiction to apply Article 101 TFEU to a single and continuous infringement as found in the decision at issue on the foreseeable, immediate and substantial effects of that infringement in the internal market (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 105).

157 Those considerations apply, mutatis mutandis, to Article 53 of the EEA Agreement.

158 In recital 869 of the contested decision, the Commission characterised the conduct at issue as a single and continuous infringement, including in so far as it concerned inbound freight services. The applicant does not contest that characterisation generally, or the finding that there was a single anticompetitive objective of restricting competition within the EEA on which that characterisation is based. At most, the applicant contests, under the third plea, that its own actions may form part of such an infringement.

159 In recital 1046 of the contested decision, the Commission, as is apparent from its answers to the written and oral questions put by the Court, examined the effects of that infringement taken as a whole. It thus found, inter alia, that its investigation had revealed ‘a cartel [that] was implemented globally’, whose ‘arrangements concerning inbound routes formed an integral part of the single and continuous infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement’. It added that the ‘uniform application of the surcharges on a world wide scale was a key element of the cartel [at issue]’. As the Commission stated in reply to the written questions put by the Court, the uniform application of the surcharges forms part of an overall strategy designed to neutralise the risk that the freight forwarders could circumvent the effects of that cartel by opting for indirect routes which would not be subject to coordinated surcharges to transport goods from the point of origin to the point of destination. The reason for this is, as is apparent from recital 72 of the contested decision, that ‘there is not the same time sensitivity associated with [freight] transport as there is with passenger transport’, so that freight ‘may be routed with a higher number of stopovers’ and that, as a result, indirect routes are substitutable for direct routes.

160 The arguments by which the applicant disputes the existence of such substitutability cannot succeed. First, the fact that freight may be the preferred means of transport for the carriage of goods which are sensitive to the passage of time does not mean that all goods transported by means of freight are so, nor does it mean that only goods sensitive to the passage of time are transported by freight. It cannot therefore be inferred from that fact alone that indirect routes are generally not suitable for freight transportation. Second, it should be noted that the applicant has failed to adduce the slightest evidence in support of its line of argument. Conversely, the Commission refers to an agreement by which the members of the WOW alliance organised the transportation of wine from the EEA to Japan via connections through the United States and Asian countries other than Japan.

161 In those circumstances, the Commission is correct in contending that prohibiting it from applying the qualified effects test to the conduct at issue taken as a whole might lead to an artificial fragmentation of comprehensive anticompetitive conduct, capable of affecting the market structure within the EEA, into a collection of separate forms of conduct which might escape, in whole or in part, the European Union’s jurisdiction (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 57).

162 It must therefore be held that the Commission was entitled, in recital 1046 of the contested decision, to examine the effects of the single and continuous infringement taken as a whole.

163 As regards the agreements and practices, first, which had the object of restricting competition at least in the European Union, the EEA and Switzerland (recital 903 of that decision), second, which brought together carriers with significant market shares (recital 1209 of that decision) and, third, a significant part of which related to intra-EEA routes for a period of more than six years (recital 1146 of that decision), there can be little doubt that it was foreseeable that, taken as a whole, the single and continuous infringement would produce immediate and substantial effects in the internal market or within the EEA.

164 It follows that the Commission was also entitled to find, in recital 1046 of the contested decision, that the qualified effects test was satisfied as regards the single and continuous infringement taken as a whole.

165 Since the Commission has thus established to the requisite standard that it was foreseeable that the conduct at issue would produce a substantial and immediate effect in the EEA, the present complaint must be rejected and, consequently, the present plea must be rejected in its entirety, without it being necessary to examine the complaint alleging errors in the application of the implementation test.

2. The plea, raised of the Court’s own motion, alleging a lack of jurisdiction on the part of the Commission, in the light of the EC-Switzerland Air Transport Agreement, to find and penalise an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes

166 As a preliminary point, it should be recalled that it is for the Courts of the European Union to examine of their own motion the plea, which is a matter of public policy, alleging a lack of jurisdiction on the part of the author of the contested measure (see, to that effect, judgment of 13 July 2000, Salzgitter v Commission, C‑210/98 P, EU:C:2000:397, paragraph 56).

167 According to settled case-law, the Courts of the European Union cannot, as a general rule, base their decisions on a plea raised of their own motion – even one involving a matter of public policy – without first having invited the parties to submit their observations in that regard (see judgment of 17 December 2009, ReviewM v EMEA, C‑197/09 RX‑II, EU:C:2009:804, paragraph 57 and the case-law cited).

168 In the present case, the Court takes the view that it has a duty to examine of its own motion whether the Commission exceeded its own jurisdiction under the EC-Switzerland Air Transport Agreement, as regards non-EU EEA-Switzerland routes, by finding, in Article 1(3) of the contested decision, that there had been an infringement of Article 53 of the EEA Agreement on non-EU EEA-third country routes, and invited the parties to submit their observations in that regard in the context of measures of organisation of procedure.

169 The applicant claimed that the reference to ‘third countries’ in Article 1(3) of the contested decision includes the Swiss Confederation. According to the applicant, the latter is in fact a third country for the purposes of the EEA Agreement, the infringement of which is found in that article. The applicant infers therefrom that, in that article, the Commission found an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes. It adds that, in so doing, the Commission has, first, infringed Article 11(2) of the EC-Switzerland Air Transport Agreement and, second, infringed international treaty law by imposing an obligation on the Swiss Confederation without having obtained its prior consent. According to the applicant, those illegalities justify a reduction in the gravity factor and, consequently, in the amount of the fine imposed on it.

170 The Commission replies that the reference in Article 1(3) of the contested decision to ‘routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and airports in third countries’ cannot be interpreted as including non-EU EEA-Switzerland routes. In its view, the concept of ‘third country’ within the meaning of that article excludes the Swiss Confederation.

171 The Commission adds that, if it were to be held that it found the applicant liable for an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes in Article 1(3) of the contested decision, it would have exceeded the limits which Article 11(2) of the EC-Switzerland Air Transport Agreement imposes on its jurisdiction.

172 It is necessary to determine whether, as the applicant maintains, the Commission found an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes in Article 1(3) of the contested decision and, if necessary, whether it thus exceeded the limits of its jurisdiction under the EC-Switzerland Air Transport Agreement.

173 In that regard, it should be recalled that the principle of effective judicial protection is a general principle of EU law now enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). That principle, which corresponds, in EU law, to Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, requires that the operative part of a decision by which the Commission finds infringements of the competition rules must be particularly clear and precise and that the undertakings held liable and penalised must be in a position to understand and to contest the imputation of liability and the imposition of those penalties, as set out in the wording of that operative part (see judgment of 16 December 2015, Martinair Holland v Commission, T‑67/11, EU:T:2015:984, paragraph 31 and the case-law cited).

174 It is in the operative part of its decisions that the Commission must indicate the nature and extent of the infringements which it penalises. As regards in particular the scope and nature of the infringements penalised, it is thus in principle the operative part, and not the statement of reasons, which is important. Only where there is a lack of clarity in the terms used in the operative part should reference be made, for the purposes of interpretation, to the statement of reasons contained in a decision (see judgment of 16 December 2015, Martinair Holland v Commission, T‑67/11, EU:T:2015:984, paragraph 32 and the case-law cited).

175 In Article 1(3) of the contested decision, the Commission found that the applicant had ‘infringed Article 53 of the EEA Agreement as regards routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and airports in third countries’ from 19 May 2005 to 14 February 2006. It neither expressly included non-EU EEA-Switzerland routes among those routes nor expressly excluded them.

176 It is therefore necessary to ascertain whether the Swiss Confederation falls within the ‘third countries’ referred to in Article 1(3) of the contested decision.

177 In that regard, it should be noted that Article 1(3) of the contested decision distinguishes between ‘countries that are Contracting Parties of the EEA Agreement but not Member States’ and third countries. It is true that, as the applicant points out, the Swiss Confederation is not a party to the EEA Agreement and is therefore among the third countries to that agreement.

178 It must however be borne in mind that, given the requirements of unity and consistency in the EU legal order, the same terms used in the same measure must be presumed to have the same meaning.

179 In Article 1(2) of the contested decision, the Commission found an infringement of Article 101 TFEU on ‘routes between airports within the European Union and airports outside the EEA’. That concept does not include airports in Switzerland, even though the Swiss Confederation is not a party to the EEA Agreement and its airports must therefore formally be regarded as being ‘outside the EEA’ or, in other words, in a third country to that agreement. Those airports form the subject of Article 1(4) of the contested decision, which finds an infringement of Article 8 of the EC-Switzerland Air Transport Agreement on ‘routes between airports within the European Union and airports in Switzerland’.

180 In accordance with the principle recalled in paragraph 177 above, it must therefore be presumed that the terms ‘airports in third countries’ used in Article 1(3) of the contested decision have the same meaning as the terms ‘airports outside the EEA’ used in Article 1(2) thereof and, consequently, exclude airports in Switzerland.

181 In the absence of the slightest indication in the operative part of the contested decision that the Commission intended to give a different meaning to the concept of ‘third countries’ referred to in Article 1(3) of the contested decision, it must be concluded that the concept of ‘third countries’ in Article 1(3) thereof excludes the Swiss Confederation.

182 It cannot therefore be considered that the Commission found the applicant liable for an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes in Article 1(3) of the contested decision.

183 Since the operative part of the contested decision does not give rise to any doubts, it is thus solely for the sake of completeness that the Court adds that the grounds of that decision do not contradict that conclusion.

184 In recital 1146 of the contested decision, the Commission stated that the ‘anti-competitive arrangements’ described by it infringed Article 101 TFEU from 1 May 2004 to 14 February 2006‘as regards air transport between airports within the [European Union] and airports outside the EEA’. In the footnote relating thereto (No 1514), the Commission specified the following: ‘For the purpose of this Decision, “airports outside the EEA” include airports in countries other than in [the Swiss Confederation] and in Contracting Parties to the EEA Agreement’.

185 Admittedly, when it describes the scope of the infringement of Article 53 of the EEA Agreement in recital 1146 of the contested decision, the Commission does not refer to the concept of ‘airports outside the EEA’, but to that of ‘airports in third countries’. It cannot however be inferred therefrom that the Commission intended to give a different meaning to the concept of ‘airports outside the EEA’ for the purposes of applying Article 101 TFEU and to that of ‘airports in third countries’ for the purposes of applying Article 53 of the EEA Agreement. On the contrary, the Commission used those two expressions interchangeably in the contested decision. Thus, in recital 824 of the contested decision, the Commission stated that it ‘[would] not apply Article 101 of the TFEU to anti-competitive agreements and practices concerning air transport between EU airports and airports in third countries that took place before 1 May 2004’. Similarly, in recital 1222 of that decision, regarding the end of SAS Consortium’s participation in the single and continuous infringement, the Commission refers to its jurisdiction under those provisions ‘on routes between the [European Union] and third countries as well as routes between Iceland, Norway and Liechtenstein and countries outside the EEA’.

186 The grounds of the contested decision thus confirm that the concepts of ‘airports in third countries’ and ‘airports outside the EEA’ have the same meaning. In accordance with the definition clause in footnote 1514, it must therefore be considered that both exclude airports in Switzerland.

187 Contrary to what the applicant claims, recitals 1194 and 1241 of the contested decision do not militate in favour of another solution. Admittedly, in recital 1194 of that decision, the Commission referred to ‘EEA – third country routes, except routes between the [European Union] and Switzerland’. Similarly, in recital 1241 of that decision, in the context of the ‘determination of the value of sales on third country routes’, the Commission reduced by 50% the basic amount for ‘EEA - third country routes, except routes between the [European Union] and Switzerland where the Commission is acting under the [EC-Switzerland Air Transport Agreement]’. It could be considered that, as the applicant in essence submits, if the Commission took care to insert in those recitals the words ‘except routes between the [European Union] and Switzerland’, it is because it considered the Swiss Confederation to be covered by the concept of ‘third country’ in so far as EEA-third country routes were concerned.

188 The Commission also acknowledged that it was possible that it had ‘inadvertently’ included in the value of sales the turnover which some of the incriminated carriers had generated on non-EU EEA-Switzerland routes during the period concerned. According to the Commission, the reason for this is that, in a request for information of 26 January 2009 concerning certain turnover figures, it did not inform the carriers concerned that turnover on non-EU EEA-Switzerland routes should be excluded from the value of sales on non-EU EEA-third country routes.

189 It must nevertheless be held, as the Commission stated, that those aspects concerned only the revenues to be taken into account for the purposes of calculating the basic amount of the fine, not the definition of the geographic scope of the single and continuous infringement which is as issue here.

190 The present plea must therefore be rejected.

3. The first plea, alleging breach of the ne bis in idem principle and infringement of Article 266 TFEU and expiry of the limitation period

191 The applicant divides this plea into two parts, alleging, first, breach of the ne bis in idem principle and infringement of Article 266 TFEU and, second, expiry of the limitation period and a lack of legitimate interest in making a formal finding of infringement.

192 The Court considers it appropriate to deal first with the second part, alleging expiry of the limitation period.

(a) The second part, alleging expiry of the limitation period and a lack of legitimate interest in making a formal finding of infringement

193 The applicant claims that the limitation period has expired and that there is no legitimate interest in making a formal finding of infringement.

194 As regards the limitation period, the applicant submits that, in so far as its action against the Decision of 9 November 2010 did not seek annulment of the findings of infringement relating to intra-EEA routes and EU-Switzerland routes, Article 25(6) of Regulation No 1/2003 providing for the suspension of that period in the event of proceedings pending before the Court did not apply. By imposing a fine on the applicant in respect of those routes in the contested decision, the Commission therefore failed to have regard to that limitation period.

195 As regards the legitimate interest in finding the infringement in respect of intra-EEA routes and EU-Switzerland routes, the applicant submits that it is for the Commission to demonstrate that it has such an interest. However, the Commission does not provide any evidence to show that the applicant had not complied with the obligation laid down in the Decision of 9 November 2010 to terminate the infringement immediately. Nor are there any grounds for the Commission to assume, as it did in recital 1171 of the contested decision, that the applicant might not have brought the infringement to an end by the time of the adoption of the contested decision. Moreover, both the contested decision and the Decision of 9 November 2010 indicate that there is no evidence that the collusive arrangements continued after the first day of the inspections, that is, 14 February 2006. The applicant also submits that, according to the case-law, the failure on the Commission’s part to demonstrate a legitimate interest is sufficient to justify the annulment of the contested decision in its entirety in so far as the applicant is concerned.

196 Lastly, if the Court were to uphold this part of the plea, but hold that the contested decision should not be annulled in its entirety, account should be taken of the expiry of the limitation period when calculating the amount of the fine. According to the applicant, the gravity factor and the additional amount applicable to it should therefore be set at a percentage lower than 16%. It submits that, otherwise, that would give rise to unjustifiable discrimination between it and the carriers found liable for the single and continuous infringement on all routes, and would render meaningless the 10-year limitation period laid down in Article 25 of Regulation No 1/2003.

197 The Commission disputes the applicant’s line of argument.

198 According to the Commission, the 10-year limitation period was suspended between 24 January 2011, the date on which the applicant brought its action against the Decision of 9 November 2010, and 16 December 2015, the date on which the Court gave its judgment in Japan Airlines v Commission (T‑36/11, not published, EU:T:2015:992). Taking that suspension into account, the period which elapsed between 14 February 2006, the date on which the infringement ended, and 17 March 2017, the date of adoption of the contested decision, was only 6 years, 2 months and 26 days.

199 The Commission emphasises that the Decision of 9 November 2010 described a single and continuous infringement covering all the routes at issue and that, by its action against that decision, the applicant sought the decision’s annulment, entailing the suspension of the limitation period.

200 The Commission adds that the gravity factor and the additional amount need not be adjusted. The gravity factor remained the same for all addressees of the contested decision, and the geographic scope of the conduct of each addressee was reflected in the turnover figures used to calculate the amount of their respective fines.

201 It should be recalled that, pursuant to Article 25(1)(b), (2), (3) and (5) of Regulation No 1/2003, the limitation period for the power to impose a fine is to expire where: – the Commission did not impose a fine within five years from the day on which the infringement ceased (paragraph 1(b)) without any action interrupting the limitation period having been taken in the meantime (paragraph 3); – or at the latest within 10 years from the day on which the infringement ceased if interruptive actions have been taken (paragraph 5).

202 In addition, Article 25(6) of Regulation No 1/2003 provides that the limitation period i