Case T‑67/11

Martinair Holland NV

v

European Commission

‛Competition — Agreements, decisions and concerted practices — European airfreight market — Agreements and concerted practices in respect of several elements of the pricing of airfreight services (imposition of fuel and security surcharges, refusal to pay commission on surcharges) — Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and Switzerland on Air Transport — Obligation to state reasons’

Summary — Judgment of the General Court (First Chamber), 16 December 2015

Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — Decision of the Commission finding an infringement and imposing a fine — Internal contradictions in the decision — Consequences — Annulment — Conditions — Defence rights of the penalised undertaking adversely affected — Impossible for the EU judicature to exercise its review

Agreements, decisions and concerted practices — Prohibition — Direct effect — Right of individuals to claim compensation for damage suffered — Procedures for exercising — Infringements forming the subject-matter of a Commission decision — Binding nature of the decision for national courts — Scope — Importance of the clarity and precision of the operative part of the decision

Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — Decision of the Commission finding an infringement and imposing a fine — Requirements arising from the principle of effective judicial protection — Clarity and precision of the operative part of the decision

In stating the reasons for a decision which it takes to enforce EU rules on competition, the Commission is required under Article 296 TFEU to set out at least the facts and considerations having decisive importance in the context of the decision in order to make clear to the competent court and the persons concerned the circumstances in which it has applied EU law. In addition, the statement of the reasons must be logical and, in particular, contain no internal inconsistency that would prevent a proper understanding of the reasons underlying the measure. Moreover, notwithstanding Article 23(5) of Regulation No 1/2003, which states that decisions imposing fines for infringements of the competition rules are not of a criminal law nature, the infringement of Article 101(1) TFEU, of Article 53 of the EEA Agreement and of Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport involves engaging in conduct which is generally regarded as underhand, to the detriment of the public at large, and which entails a clear stigma and a potential fine, for the undertakings responsible, of up to 10% of annual turnover, which is undoubtedly severe. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, those penalties pertain to criminal matters for the purpose of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In that regard, the European Court of Human Rights has stated that if a ‘penalty’ is imposed by a decision of an administrative authority, the person concerned must have an opportunity to challenge any decision made against him before a tribunal that offers the guarantees provided for in Article 6 of the ECHR. The principle of effective judicial protection, a general principle of EU law which is now enshrined in Article 47 of the Charter of Fundamental Rights of the European Union and which corresponds, in EU law, to Article 6(1) of the ECHR, requires that the operative part of a decision adopted by the Commission, finding 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 that imputation of liability and the imposition of those penalties, as set out in the wording of that operative part. (see paras 27-31)

In EU competition law, it is in the operative part of a decision that the Commission must indicate the nature and extent of the infringements which it penalises. Thus, as regards in particular the scope and nature of the infringements penalised, it is 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. For the purpose of determining the persons to whom a decision finding an infringement applies, only the operative part of the decision must be considered, provided that it is not open to more than one interpretation. (see para. 32)

In EU competition law, Article 101(1) TFEU produces direct effects in relations between individuals and creates rights for individuals with the result that it must be open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition. National courts whose task it is to apply that provision in areas within their jurisdiction must therefore ensure that those rules take full effect and must protect those rights. It follows that any person can claim compensation for the harm suffered where there is a causal relationship between that harm and an agreement or practice prohibited under Article 101 TFEU. In accordance with Article 16(1) of Regulation No 1/2003, when national courts rule on agreements, decisions or practices under Article 101 TFEU which are already the subject of a Commission decision, they cannot take decisions running counter to that decision, including as regards the temporal or geographic scope of the conduct examined or as regards the liability or non-liability of persons investigated. National courts are therefore bound by the decision adopted by the Commission, provided that it has not been annulled or invalidated, and consequently the meaning of the operative part of that decision must be unambiguous. In particular, clear wording of the operative part of a decision finding an infringement of the competition rules must allow the national courts to understand the scope of that infringement and to identify the persons liable, in order to be able to draw the necessary inferences as regards claims for damages brought by persons harmed by that infringement. In that regard, it cannot be ruled out that a person held liable for an infringement of the competition rules found by the Commission may be required to pay compensation for the damage caused to customers of other persons held liable for the same infringement. The wording of the operative part of a decision finding an infringement of the competition rules is evidently decisive, since it is such as to establish mutual rights and obligations of the persons concerned. The national court may also, if provided for by national law, be required to find that all of the persons held liable for the infringement of the competition rules found by the Commission must jointly and severally make good the damage caused. In that case, the wording of the operative part of a decision finding an infringement of the competition rules may also be decisive as regards the persons concerned. (see paras 33-39)

See the text of the decision. (see paras 55, 60)

In competition matters, where the grounds of a Commission decision finding an infringement and imposing a fine describe a single and continuous infringement in which all the incriminated undertakings allegedly participated, whereas the operative part of that decision, containing several articles, finds either several separate single and continuous infringements or just one single and continuous infringement, liability for which is attributed only to undertakings which participated directly in the unlawful conduct referred to in each of those articles, there is a contradiction between the grounds and the operative part of the decision. In that regard, the mere existence of a contradiction between the grounds and the operative part of a decision is not sufficient to establish that the decision is vitiated by a defective statement of reasons, provided that, first, the decision, taken as a whole, is such that the applicant is able to identify and plead that lack of consistency, secondly, the wording of the operative part of the decision is sufficiently clear and precise to allow the applicant to ascertain the exact scope of the decision and, thirdly, the evidence relied upon to demonstrate the applicant’s participation in the infringements imputed to it in the operative part is clearly identified and examined in the grounds. However, if the internal inconsistencies in the contested decision are liable to infringe the applicant’s rights of defence and prevent the Court from exercising its power of review, the contested decision is vitiated by a defective statement of reasons which justifies its annulment. That is in particular the case where the decision does not make it possible either to assess the sufficiency of the evidence set out in the grounds or to understand the line of reasoning that led the Commission to find the addressees of the decision liable. (see paras 58, 74-76, 78, 84)