Judgment of the General Court (Ninth Chamber) of 29 February 2016 —

UTi Worldwide and Others v Commission

(Case T‑264/12)

‛Competition — Agreements, decisions and concerted practices — International air freight forwarding services — Decision finding an infringement of Article 101 TFEU — Surcharges and tariff mechanisms having an impact on the final price of services — Errors of assessment — Proof — Whether trade between Member States affected — Appreciable effect on competition — Amount of the fine — Gravity of the infringement — Proportionality — Joint and several liability — Unlimited jurisdiction’

1. Agreements, decisions and concerted practices — Agreements between undertakings — Concept — Joint intention as to the conduct to be adopted on the market — Included — Pursuance of negotiations on certain aspects of the restriction — No effect (Art. 101(1) TFEU; EEA Agreement, Art. 53(1) (see paras 27-29)

2. Agreements, decisions and concerted practices — Concerted practice — Concept — Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market — Disclosure of sensitive information removing uncertainty as to the future behaviour of a competitor (Art. 101(1) TFEU; EEA Agreement, Art. 53(1) (see paras 30-34, 59-66, 91)

3. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Degree of precision required of the evidence used by the Commission — Body of evidence — Evidential obligations of undertakings disputing the reality of the infringement — Judicial review — Scope (Art. 101 TFEU; Council Regulation No 1/2003, Art. 2) (see paras 35-40, 43, 45, 83)

4. Competition — Administrative procedure — Commission decision finding an infringement — Use as evidence of statements of other undertakings which participated in the infringement — Lawfulness — Declarations against the interests of the person making them — High probative value (Art. 101 TFEU; Council Regulation No 1/2003, Art. 2) (see paras 41, 42)

5. Agreements, decisions and concerted practices — Participation in meetings having an anti-competitive object — Circumstances from which, where the undertaking concerned has not distanced itself from the decisions adopted, it may be concluded that it participated in the ensuing cartel — Conduct deviating from that agreed within the cartel — No effect (Art. 101(1) TFEU; EEA Agreement, Art. 53(1) (see paras 95, 127-129, 176)

6. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Anti-competitive object — Sufficient — Finding not subject to the obligation to prove the existence of inconveniences for end consumers (Art. 101(1) TFEU; EEA Agreement, Art. 53(1) (see paras 118, 186)

7. Agreements, decisions and concerted practices — Complex infringement comprising elements both of an agreement and of a concerted practice — Classified singly as ‘an agreement and/or concerted practice’ — Lawfulness (Art. 101(1) TFEU; EEA Agreement, Art. 53(1) (see para. 175)

8. Agreements, decisions and concerted practices — Effect on trade between Member States — Appreciable effect — Criteria for assessment — Potential and significant effect (Art. 101(1) TFEU; EEA Agreement, Art. 53(1); Commission Notice 2004/C 101/07, point 53) (see paras 196-200, 207, 219-222)

9. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope (Art. 261 TFEU; Council Regulation No 1/2003, Art. 31) (see paras 231-233)

10. Competition — Fines — Amount — Determination — Determination of the base amount — Determination of the value of sales — Gravity of the infringement — Determination of the fine in proportion to the factors for assessment of the gravity of the infringement — Overall turnover of the undertaking concerned — Turnover corresponding to the goods covered by the infringement — To be taken into consideration — Limits (Art. 101 TFEU; Charter of Fundamental Rights, Art. 49(3); Council Regulation No 1/2003, Art. 23(3); Commission Notice 2006/C 210/02, point 13) (see paras 244-250, 270, 271)

11. Competition — Fines — Guidelines on the method of setting fines — Legal nature — Indicative rule of conduct implying a self-limitation on the discretion of the Commission — Possibility of the Commission departing therefrom — Conditions (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, points 13 and 37) (see para. 251)

12. Competition — Fines — Amount — Determination — Determination of the base amount — Determination of the value of sales — Sales carried out in direct or indirect relation to the infringement — Limitation to sales actually carried out by the cartel — None (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 13) (see paras 259, 262, 263, 265-267)

13. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Horizontal cartel concerning prices — Very serious infringement — Intentional aspect of the conduct more important than its effects (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, points 21 and 23) (see paras 278-281)

14. Competition — Fines — Amount — Determination — Determination of the base amount — Criteria — Duration of the infringement — Agreement penalised because of its anti-competitive object regardless of its effects — Consideration of the duration of the agreement without regard to its non-application (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 24) (see para. 294)

15. Competition — Fines — Amount — Determination — Determination of the base amount — Criteria — Deterrent effect of the fine — Very serious infringement — Automatic inclusion of an additional amount by virtue of the guidelines for the calculation of fines (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 25) (see paras 298, 300-302)

16. Competition — Fines — Amount — Determination — Method of calculation laid down by the guidelines drawn up by the Commission — Penalty made to fit the particular infringement at various stages of the determination of the amount (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, points 22, 27, 29, 36 and 37) (see para. 311)

17. Competition — Fines — Joint and several liability for payment — Scope — Attribution to the parent company of the infringing conduct of its subsidiary — Determination of the amount of the fine to be paid by the parent company — Purely derivative liability of the parent company — Amount of the fine not capable of exceeding that imposed on its subsidiary (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2)) (see paras 328-331, 334)

Re:

APPLICATION for annulment of Commission Decision C(2012) 1959 final of 28 March 2012 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/39462 — Freight forwarding), in so far as it concerns the applicants, and, in the alternative, for variation of the fine imposed on them in that decision.

Operative part

The Court:

1. Annuls Commission Decision C(2012) 1959 final of 28 March 2012 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/39462 — Freight forwarding), in so far as the amount of the fine imposed on UTi Worldwide, Inc. exceeds that of the fines imposed on UTi Nederland BV and UTI Worldwide (UK) Ltd;

2. Sets the overall amount of the fine imposed on UTi Worldwide in Article 2(2) of Decision C(2012) 1959 final at EUR 2965000, the amount of the fine which is attributable to that undertaking pursuant to the first line of Article 2(2)(j) of that decision being set at EUR 1692000;

3. Dismisses the action as to the remainder;

4. Orders UTi Worldwide, UTi Nederland and UTI Worldwide (UK) to bear nine tenths of the costs of the European Commission and of their own costs;