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 – Rights of the defence – Equality of arms – Article 266 TFEU – State coercion – Single and continuous infringement – Amount of the fine – Value of sales – Gravity of the infringement – Duration of participation in the infringement – Mitigating circumstances – Substantially limited involvement – Aggravating circumstances – Repeated infringement – Unlimited jurisdiction)

In Case T‑324/17,

SAS Cargo Group A/S, established in Kastrup (Denmark),

Scandinavian Airlines System Denmark-Norway-Sweden, established in Stockholm (Sweden),

SAS AB, established in Stockholm,

represented by B. Creve, M. Kofmann, J. Killick and G. Forwood, lawyers,

applicants,

v

European Commission, represented by A. Dawes and C. Vollrath, acting as Agents, and by B. Doherty, Barrister,

defendant,

APPLICATION under Article 263 TFEU seeking, in essence, 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 applicants and, in the alternative, a reduction of the amount of the fine imposed on them,

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 11 July 2019,

gives the following

Judgment

I. Background to the dispute

1 The applicants, SAS Cargo Group A/S (‘SAS Cargo’), Scandinavian Airlines System Denmark-Norway-Sweden (‘SAS Consortium’) and SAS AB, are active in the market for airfreight (‘freight’). SAS Cargo, which offers freight services, is an indirectly wholly owned subsidiary of SAS. Until 1 June 2001, SAS Cargo did not exist as a separate legal entity, but was a business unit within SAS Consortium. SAS Consortium is owned by SAS.

2 In the freight sector, airlines provide for the carriage of cargo by air (‘carriers’). As a general rule, the carriers supply freight services to freight forwarders, who arrange the transport of that cargo on behalf of shippers. In return, those freight forwarders pay those 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: (i) those which exclusively operate dedicated freighter airplanes, (ii) those with cargo capacity on passenger flights, (iii) those with both dedicated freighter airplanes and with cargo capacity on passenger flights (combination airlines) and (iv) integrators with dedicated freighter airplanes providing both integrated express delivery services and general freight 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 comprised Deutsche Lufthansa AG (‘Lufthansa’), SAS Cargo, Singapore Airlines Cargo Pte Ltd (‘SAC’) and Japan Airlines International Co. Ltd (‘Japan Airlines’).

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, in particular, to: – the fuel surcharge (‘the FSC’), which had been introduced to tackle rising fuel costs; – the security surcharge (‘the 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 various 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 SAS Cargo and SAS Consortium, submitted 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 applicants (‘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.; – Japan Airlines; – Lan Airlines SA; – Lan Cargo SA; – Lufthansa Cargo; – Lufthansa; – Swiss; – Martinair Holland NV (‘Martinair’); – Qantas Airways Ltd (‘Qantas’); – SAS; – SAS Cargo; – 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 applicants, read as follows: ‘Article 1 The following undertakings infringed Article 101 of the TFEU and 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 within the EEA, for the following periods: … j) SAS … from 17 August 2001 until 14 February 2006; k) [SAS Cargo] from 1 June 2001 until 14 February 2006; l) [SAS Consortium] from 13 December 1999 until 28 December 2003; … 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: … q) SAS … from 1 May 2004 until 14 February 2006; r) [SAS Cargo] 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: … o) SAS … from 19 May 2005 until 14 February 2006; p) [SAS Cargo] from 19 May 2005 until 14 February 2006; … Article 4 The following undertakings infringed Article 8 of the [EC-Switzerland Air Transport 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 within the European Union and airports in Switzerland, for the following periods: … j) SAS … from 1 June 2002 until 14 February 2006; k) [SAS Cargo] from 1 June 2002 until 14 February 2006; l) [SAS Consortium] from 1 June 2002 until 28 December 2003. … Article 5 For the infringements referred to in Articles 1 to 4 [of the Decision of 9 November 2010], the following fines are imposed: … o) [SAS Consortium]: EUR 5355000; p) [SAS Cargo] and [SAS Consortium] jointly and severally: EUR 4254250; q) [the applicants] jointly and severally: EUR 5265750; r) [SAS Cargo] and SAS … jointly and severally: EUR 32984250; s) [SAS Cargo]: EUR 22308250; … Article 6 The undertakings listed in Articles 1 to 4 shall immediately bring to an end the infringements referred to in those Articles, in so far 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. The action challenging the Decision of 9 November 2010 before the Court

15 By application lodged at the Registry of the General Court on 25 January 2011, the applicants brought an action seeking annulment of the Decision of 9 November 2010 in so far as the decision concerned them or, in the alternative, reduction of the amount of the fines imposed on them. 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, Japan Airlines 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, the applicants, AF-KLM, AF and Martinair. The Court held that that 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 applicants’ 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 applicants 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. Secondly, it held that the applicants had not been able to understand the line of reasoning that had led the Commission to find them liable for an infringement, including in respect of routes which they did not operate within the parameters defined by each article of the Decision of 9 November 2010.

D. The 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 in relation to all of the routes referred to in that decision.

22 The addressees of the Commission’s letter referred to in paragraph 21 above were invited to make known their views on the Commission DG Competition’s intended decision within one month. All addressees, including the applicants, 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; – Japan Airlines; – 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 at local level, partly better to 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 Secondly, 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 Thirdly, 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 evidence relied on against the applicants is set out in recitals 790 to 792 of the contested decision.

35 In the fourth place, in Section 5 of the contested decision, the Commission applied Article 101 TFEU to the facts of the case, while stating, in footnote 1289 to that decision, that the considerations adopted applied also 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, which ‘ultimately [amounted] 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 knowingly substituted practical cooperation between them for the risks of competition’.

36 Secondly, 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 in 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).

37 In recital 882 of the contested decision, the Commission added that the applicants were involved in two of the three elements of the single infringement, namely the FSC and the SSC, but that ‘given their involvement in the other elements of the infringement they could have reasonably foreseen exchanges between the parties on such a related matter as commissioning on surcharges and were prepared to take the risk’.

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

39 Fourthly, 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 have operated, in particular because of the agreements which they were able to conclude between themselves.

40 Fifthly, 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.

41 Sixthly, 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.’

42 Seventhly, in recitals 972 to 1021 of the contested decision, the Commission examined the legislation of seven third countries, which a number 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 coercion from those third countries.

43 Eighthly, 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 of the EEA Agreement and between contracting parties to the EC-Switzerland Air Transport Agreement.

44 Ninthly, 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. On the one hand, 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, 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 of 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 [between] Switzerland [and] third countries’.

45 On the other hand, 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 would exceed 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 European Union or 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).’

46 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, anti-competitive 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 anti-competitive 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 staff were merely implementing them. The uniform application of the surcharges on a world wide scale was a key element of the cartel.’

47 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 that 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.

48 In so far as the applicants are concerned, the Commission found that the duration of the infringement was from 13 December 1999 to 14 February 2006.

49 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.

50 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’).

51 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’).

52 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, EU-third country routes, EU-Switzerland routes, and non-EU EEA-third country routes. The Commission also took into account the accession of new Member States to the EU in 2004.

53 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% of worldwide market share and a market share at least as high on intra-EEA 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%.

54 In recitals 1214 to 1217 of the contested decision, the Commission determined the duration of the applicants’ participation in the single and continuous infringement as follows, according to the routes concerned: – in so far as concerned intra-EEA routes, for SAS, SAS Cargo and SAS Consortium respectively: from 17 August 2001 to 14 February 2006, from 1 June 2001 to 14 February 2006 and from 13 December 1999 to 28 December 2003, equating to four years and five months, four years and eight months and four years and giving rise to multipliers of 45⁄12, 48⁄12 and 4 respectively; – in so far as concerned EU-third country routes, for SAS and SAS Cargo: 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 concerned EU-Switzerland routes, for SAS, SAS Cargo and SAS Consortium respectively: from 1 June 2002 to 14 February 2006, from 1 June 2002 to 14 February 2006 and from 1 June 2002 to 28 December 2003, equating to three years and eight months, three years and eight months and one year and six months and giving rise to multipliers of 38⁄12, 38⁄12 and 16⁄12 respectively; – in so far as concerned non-EU EEA-third country routes, for SAS and SAS Cargo: from 19 May 2005 to 14 February 2006, equating to eight months and giving rise to a multiplier of 8⁄12.

55 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 53 above, the additional amount should be set at 16% of the value of sales. In recitals 1221, 1223 and 1227 to 1229 of that decision, the Commission stated that that additional amount should be divided between SAS, SAS Cargo and SAS Consortium in such a way as to reflect the duration of the participation of each of those entities in the single and continuous infringement.

56 Consequently, in recitals 1240 to 1242 of the contested decision, the basic amount of the fine to be imposed on SAS, SAS Cargo and SAS Consortium was assessed, respectively, at EUR 106000000, EUR 108000000, and EUR 14000000, which was reduced to EUR 60000000, EUR 61000000 and EUR 14000000, respectively, 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 outbound 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 have occurred outside that territory.

57 In recitals 1243 to 1245 of the contested decision, in accordance with point 28 of the 2006 Guidelines, the Commission imposed on SAS Cargo and on SAS Consortium an increase of 50% in the basic amount of the fine for repeated infringement.

58 In recitals 1258 and 1259 of the contested decision, in accordance with point 29 of the 2006 Guidelines, on account of their limited involvement in the single and continuous infringement, the Commission granted the applicants, on account of mitigating circumstances, a reduction of 10% of the basic amount of the fine.

59 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% to the basic amount of the fine (‘the general 15% reduction’) on the ground that certain regulatory regimes had encouraged the cartel at issue.

60 By contrast, in recitals 1268 and 1271 of the contested decision, the Commission rejected the applicants’ argument that they could derive a legitimate expectation as to the limits of the Commission’s territorial jurisdiction to find an infringement of the competition rules from a decision of the Danish competition authority of 2002.

61 Consequently, in recital 1293 of the contested decision, the Commission set the basic amount of the fines of SAS, SAS Cargo and SAS Consortium, after adjustment, at EUR 45000000, at EUR 76250000 and at EUR 17500000, respectively.

62 In recitals 1347 to 1354 of the contested decision, the Commission took account of the applicants’ contribution in the context of their leniency application and applied a reduction of 15% to the fine, with the result that, as stated in recital 1404 of the contested decision, the amount of the fine imposed on SAS, SAS Cargo and SAS Consortium was set at EUR 38250000, EUR 64812500 and EUR 14875000 respectively.

63 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: … (o) SAS … from 17 August 2001 until 14 February 2006; (p) [SAS Cargo] from 1 June 2001 until 14 February 2006; (q) [SAS Consortium] from 13 December 1999 to 28 December 2003; … (2) The following undertakings infringed Article 101 of the TFEU as regards [EU-third country routes], for the following periods: … (o) SAS … from 1 May 2004 until 14 February 2006; (p) [SAS Cargo] 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: … (o) SAS … from 19 May 2005 until 14 February 2006; (p) [SAS Cargo] 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: … (o) SAS … from 1 June 2002 until 14 February 2006; (p) [SAS Cargo] from 1 June 2002 until 14 February 2006; (q) [SAS Consortium] from 1 June 2002 until 28 December 2003. … 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: … (n) [SAS Consortium]: EUR 5355000; (o) [SAS Cargo and SAS Consortium] jointly and severally: EUR 4254250; (p) [the applicants] jointly and severally: EUR 5265750; (q) [SAS Cargo] and SAS … jointly and severally: EUR 32984250; (r) [SAS Cargo]: EUR 22308250; … 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 applicants] …’

II. Procedure and forms of order sought

64 By application lodged at the Registry of the General Court on 29 May 2017, the applicants brought the present action.

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

66 The applicants lodged their reply at the Court Registry on 8 January 2018.

67 The Commission lodged its rejoinder at the Court Registry on 1 March 2018.

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

69 On 25 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.

70 At the hearing on 11 July 2019, the parties presented oral argument and answered the questions put by the Court. Following the hearing, the applicants were requested to adduce the agreement relating the WOW alliance and an air services agreement (‘ASA’). They complied with that request within the prescribed period.

71 The oral part of the procedure was closed on 18 July 2019.

72 By order of 7 January 2021, 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 on 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.

73 The Commission replied, within the time limit set, to a series of questions put by the Court on 12 January, 2 March and 12 April 2021. The applicants submitted their observations on the replies of the Commission on 14 May 2021.

74 By decision of 26 July 2021, the Court again closed the oral part of the procedure.

75 The applicants claim that the Court should: – adopt a measure of organisation of the procedure or a measure of inquiry ordering the Commission to grant them access to the entire case file, or adopt such other measure as the Court deems necessary; – annul in whole or in part the contested decision, in so far as it concerns them; – in the alternative, reduce the amount of the fine imposed on them in the contested decision; – order the Commission to pay the costs.

76 The Commission contends, in essence, that the Court should: – dismiss the action; – alter the amount of the fine imposed on the applicants 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 applicants to pay the costs.

III. Law

77 In their action, the applicants put forward both a claim for annulment of the contested decision and a claim for a reduction in the amount of the fine imposed on them. The Commission, for its part, made an application seeking, in essence, an alteration of the amount of the fine imposed on the applicants, 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

78 The applicants put forward five pleas in law in support of their claim for annulment. Those pleas are as follows: – The first alleges infringement of the rights of the defence and the principle of equality of arms, in so far as they were refused access to evidence, both inculpatory and exculpatory; – The second alleges infringement of the right to be heard and a lack of jurisdiction on the part of the Commission, first, to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services and, secondly, to apply Article 53 of the EEA Agreement to freight services provided on routes between Switzerland and the three EEA Member States that are not EU Member States, namely Iceland, the Principality of Liechtenstein and the Kingdom of Norway (‘non-EU EEA-Switzerland routes’); – The third alleges an error of assessment of the conduct in which the applicants were involved and the finding that that conduct proved their participation in, or awareness of, the single and continuous infringement; – The fourth alleges infringement of Article 266 TFEU, of the second paragraph of Article 296 TFEU and of Article 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’), in so far as the contested decision is vitiated by internal inconsistencies; – The fifth, submitted in the alternative, alleges errors in the determination of the amount of the fine imposed on the applicants.

1. The first plea in law, alleging infringement of the rights of the defence and the principle of equality of arms, in so far as they were refused access to evidence, both inculpatory and exculpatory

79 The applicants submit that the Commission infringed their rights of defence and the principle of equality of arms by refusing them access to relevant evidence, in particular evidence received by the Commission after the Statement of Objections was sent. The evidence in question is inculpatory and exculpatory evidence contained, first, in the replies of other addressees of the Statement of Objections and in the documents accompanying those replies, secondly, in the submissions made to the Court by other carriers in their actions for the annulment of the Decision of 9 November 2010 and, thirdly, in the documents underlying the Commission’s statement about the WOW alliance in its decision of 4 July 2005 in Case COMP/M.3770 – Lufthansa/Swiss.

80 As regards the inculpatory evidence that was not communicated to them and on which the Commission relied in the contested decision, the applicants submit that that evidence should be disallowed, in particular, certain documents concerning the regulatory framework applicable in Hong Kong, Japan, India, Thailand, Singapore, South Korea and Brazil.

81 As regards the exculpatory evidence, the applicants maintain that the evidence obtained by the Commission after notification of the Statement of Objections is likely to be exculpatory, since, objectively, it is linked to the objections formulated against them and might have been useful for their defence. Without having access to those documents, it is impossible for the applicants to know their contents. The applicants nevertheless suggest certain aspects of the case to which that evidence might relate, namely their conduct in the context of alliances; vertical capacity supply relationships between Lufthansa and other carriers; conduct in third countries that involved the applicants; internal speculation on the part of other carriers concerning public information regarding the applicants; disparate local conduct at issue and conduct at issue that did not involve the applicants.

82 The applicants add that it is their prerogative, not the prerogative of the Commission, to decide whether or not particular information is liable to be useful for their defence.

83 In support of their plea, the applicants rely on, inter alia, the judgments of 25 October 2011, Solvay v Commission (C‑109/10 P, EU:C:2011:686), and of 29 June 1995, Solvay v Commission (T‑30/91, EU:T:1995:115), and on Articles 41 and 47 of the Charter and Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). In their observations on the Commission’s replies to the Court’s written questions of 12 April 2021, they also rely on the judgment of 25 July 2019 of the European Court of Human Rights, Rook v. Germany (CE:ECHR:2019:0725JUD000158615, §§ 58 and 59). According to the applicants, that judgment reaffirms the principle of the equality of arms, as resulting from the judgment of 29 June 1995, Solvay v Commission (T‑30/91, EU:T:1995:115), and confirms that any limitation on the disclosure of documents that may be relevant must be strictly necessary to protect the fundamental rights of a third party or to safeguard an important public interest.

84 Furthermore, the applicants request the Court to adopt a measure of organisation of the procedure or a measure of inquiry ordering the Commission to give them access to the entire case file. At the hearing, the applicants amended their request, first, by limiting its scope to the replies to the Statement of Objections and the annexes thereto and, secondly, by extending it to the observations and documents submitted before the Court by the other incriminated carriers in their respective actions against the Decision of 9 November 2010.

85 The Commission disputes the applicants’ arguments.

86 The Commission argues that the applicants have been given access to all the evidence to which they are entitled and that they are merely speculating when they claim that there might be additional exculpatory evidence on the file.

87 The Commission also argues that it carefully examined the applicants’ requests for access to documents. The applicants are not entitled to have access to all the replies of other carriers to the Statement of Objections. The Commission is required to disclose such material to the applicants only to the extent that it contains new inculpatory or exculpatory evidence or is essential in order to enable them to dispute the figures used by the Commission in the Statement of Objections.

88 The Commission disputes the applicants’ allegations concerning the aspects of the dispute in respect of which they were denied access to exculpatory evidence.

89 Lastly, the Commission objects to the measures of organisation of procedure or investigation requested by the applicants. The Commission considers it disproportionate, on the ground, inter alia, that the applicants have failed to provide any evidence to show that the documents in question would have been useful for the purposes of the proceedings.

90 In that regard, it must be noted that respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 66).

91 A corollary of the principle of protection of the rights of the defence, the right of access to the file means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence. Those documents include both incriminating evidence and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved (judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 68).

92 In that respect, it should be recalled that it is not until the beginning of the inter partes administrative stage that the undertaking concerned is informed, by means of the notification of the Statement of Objections, of all the essential evidence on which the Commission relies at that stage of the procedure and that that undertaking has a right of access to the file in order to ensure that its rights of defence are effectively exercised. Consequently, the other parties’ replies to the Statement of Objections are not, in principle, included in the documents of the investigation file that the parties may consult (judgment of 30 September 2009, Hoechst v Commission, T‑161/05, EU:T:2009:366, paragraph 163).

93 However, if the Commission wishes to rely on a passage in a reply to a Statement of Objections or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article 101(1) TFEU, the other parties involved in that proceeding must be placed in a position in which they can express their views on such evidence. In such circumstances the passage in question or the document annexed thereto constitutes inculpatory evidence against the various parties alleged to have participated in the infringement (see judgment of 30 September 2009, Hoechst v Commission, T‑161/05, EU:T:2009:366, paragraph 164 and the case-law cited).

94 According to the case-law, extracts from replies to the statement of objections constitute inculpatory evidence where the Commission uses them in the contested decision to support an objection which it alleges against the undertaking concerned (see, to that effect, judgment of 8 July 2008, BPB v Commission, T‑53/03, EU:T:2008:254, paragraph 54).

96 It is for the undertaking concerned, as the case may be, to show that the result at which the Commission arrived in its decision might have been different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding of infringement against it had to be disallowed as inculpatory evidence (see, to that effect, judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraphs 78 and 79; see also judgment of 30 September 2009, Hoechst v Commission, T‑161/05, EU:T:2009:366, paragraph 165 and the case-law cited).

97 Where an exculpatory document has not been communicated, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the decision of the Commission (see judgment of 30 September 2009, Hoechst v Commission, T‑161/05, EU:T:2009:366, paragraph 166 and the case-law cited), or that it could have harmed or rendered more difficult the defence of that undertaking’s interests during the administrative procedure (judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 368).

98 In that regard, a passage in a reply to a Statement of Objections or a document annexed to such a reply which may be relevant for the defence of an undertaking in that it enables that undertaking to rely on evidence which is not consistent with the inferences made at that stage by the Commission constitutes exculpatory evidence (judgment of 12 July 2011, Hitachi and Others v Commission, T‑112/07, EU:T:2011:342, paragraph 34).

99 However, the mere fact that other undertakings put forward the same arguments as the undertaking concerned and that they may have used more resources for their defence is not sufficient for those arguments to be regarded as exculpatory evidence (see judgment of 12 July 2011, Hitachi and Others v Commission, T‑112/07, EU:T:2011:342, paragraph 35 and the case-law cited).

100 As regards documents that the Commission is not, as a general rule, required to divulge of its own initiative, it should be noted that the undertakings concerned cannot, in principle, reasonably invoke failure to communicate the alleged exculpatory evidence contained in the replies in question, since it did not request access to those replies during the administrative procedure (see, to that effect, judgment of 16 June 2011, FMC Foret v Commission, T‑191/06, EU:T:2011:277 paragraph 292).

101 It should also be borne in mind that it is for the undertaking alleging an infringement of its rights of defence to adduce prima facie evidence that the documents which were not disclosed to it by the Commission would be useful for its defence (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T‑441/14, EU:T:2018:453, paragraph 80).

102 In the present case, a distinction must be drawn between the alleged inculpatory evidence and the alleged exculpatory evidence whose non-disclosure is challenged by the applicants.

(a) The alleged inculpatory evidence

103 The alleged inculpatory evidence to which the applicants claim they were not given access all relates to the description and analysis, set out in recitals 976 to 989 and 998 to 1012 of the contested decision, of the legislative framework and the administrative practice applicable to the establishment of carriers’ rates in certain third countries. The applicants refer in that regard, first of all, to the Commission’s direct references to the replies of CPA, British Airways, Cargolux, another carrier and Japan Airlines to the Statement of Objections, to documents that implicitly make reference to those replies and to the undisclosed documents on which the Commission relied even though those replies did not necessarily come from other carriers that were addressees of the Statement of Objections.

104 First of all, as regards the direct references in the contested decision to the replies to the Statement of Objections, it must be noted that, for the most part, they are not mere summaries of an argument developed by an addressee of the Statement of Objections, within the meaning of the case-law referred to in paragraph 95 above.

105 First, that applies to the statements of Japan Airlines and another carrier set out in recitals 1003, 1005 and 1006 of the contested decision, according to which (i) the Japanese authorities did not require, until 2006, any reference to the agreement between the designated carriers as stipulated by the ASA applicable in the context of the submission of applications for surcharge approvals and (ii) there was no obligation to coordinate flights between Japan and the United Kingdom.

106 As the applicants submit, it is apparent from the contested decision that the Commission relied on those statements to support the finding that there was no administrative practice obliging the incriminated carriers to coordinate on the surcharges during the infringement period and thus to support its view that the conduct in Japan fell within the scope of Article 101 TFEU and Article 53 of the EEA Agreement. In the part of the contested decision entitled ‘Analysis of the Japanese regulatory system’, in recitals 1005 and 1006 of the contested decision, the Commission relies on those statements to establish the following two findings. In the first place, the ASAs concluded between Japan and the States party to the EEA Agreement did not in practice oblige carriers to agree on tariffs since, in order to avoid such an obligation, it was sufficient for them to make reference, in their request relating to the FSC, to an alleged agreement within IATA. In the second place, the Japanese authorities imposed no coordination obligation in respect of flights between Japan and the United Kingdom.

107 Secondly, that also applies to the statements of CPA, Cargolux and British Airways referred to in recitals 977 to 979 of the contested decision, in which those three carriers acknowledge that the submission of individual applications for surcharge approval in Hong Kong was possible, in particular for a fixed amount of FSC. It is true that those assertions appear in a section of the contested decision entitled ‘Carriers’ Arguments’. However, as the applicants rightly point out, in recital 987 of the contested decision, in the context of the analysis of the administrative practice in Hong Kong, the Commission states as follows: ‘Other parties dispute the possible existence of a requirement [to discuss tariffs and submit a collective application to the Hong Kong Civil Aviation Department (“the CAD”)] with some arguing that CAD encouraged rather than required concertation.’

108 However, that statement by the Commission can be understood only as referring to the statements of CPA, Cargolux and British Airways that are mentioned in recitals 977 to 979 of the contested decision.

109 Nevertheless, CPA’s statements reproduced in recital 1004 of the contested decision cannot be classified as inculpatory evidence, since it is not apparent from the contested decision that the Commission relied on those statements in order to establish the single and continuous infringement.

110 Next, as regards the evidence that allegedly refers to those replies implicitly, contrary to what the applicants claim, it is not apparent from the passage in recital 1012 of the contested decision stating that ‘it is not claimed that the parties were required to concert on the SSC or commissioning on surcharges’, that the Commission relied on undisclosed inculpatory evidence. By that finding, the Commission merely observes that no evidence attesting to such an obligation was provided in response to the Statement of Objections.

111 Lastly, as regards the undisclosed documents on which the Commission allegedly relied even though they did not necessarily come from other carriers to which the Statement of Objections was addressed, the applicants refer to the documents that were used for the analysis of Japanese legislation and the ASAs applicable in third countries other than Hong Kong and Japan set out in recitals 998 to 1001, 1009, 1010 and 1013 to 1019 of the contested decision.

112 However, those recitals do not refer to any document at all in the investigation file, irrespective of whether produced before or after the Statement of Objections was sent. In those recitals, the Commission merely describes the applicable provisions of Japanese legislation and the ASAs to which the third countries concerned are parties and finds that it has not been established that they require carriers to implement price coordination. The provisions in question are those referred to by some of the carriers to which the Statement of Objections was addressed in their arguments in reply thereto, as is apparent from recitals 1002, 1003 and 1013 of the contested decision.

113 The applicants have failed to explain how the passages in question of the contested decision indicate the existence of one or more undisclosed inculpatory documents on which the Commission relies.

114 Even if, in that regard, the applicants intended to complain that the Commission did not provide them with access to the text of the legal provisions in question, it should be noted that the legal framework applicable in Japan and in the other relevant third countries with regard to surcharges cannot, in itself, constitute incriminating evidence and that, in any event, that information is in principle public and accessible (see, to that effect, judgment of 27 September 2006, Jungbunzlauer v Commission, T‑43/02, EU:T:2006:270, paragraph 354). Moreover, paragraph 139 of the Statement of Objections stated that, in Japan, ‘the coordination of the implementation [of the FSC] between [carriers] [was] nowhere compulsory’, and paragraph 1439 contained an analysis of the clauses relating to the joint setting of charges, as the case may be, in an ASA. The applicants were therefore afforded the opportunity, during the administrative procedure, to make known their views on the legal provisions in question.

115 In the light of the foregoing, it must be held that the Commission erred in refusing the applicants access to the passages of the replies to the Statement of Objections referred to in recitals 977 to 979, 1003, 1005 and 1006 of the contested decision and described in paragraphs 105 to 108 above.

(b) The alleged exculpatory evidence

116 In the present case, it must first be noted that it is common ground between the parties that the documents that, according to the applicants, contain the exculpatory evidence were the subject of requests for access, by the applicants, during the administrative procedure.

117 Next, it is important to note that the applicants, to a large extent, merely rely on the fact that some of the incriminated carriers or addressees of the Statement of Objections put forward the same arguments as they did in their replies to the Statement of Objections or in their observations before the Court. Such considerations are not sufficient to establish the existence of exculpatory evidence (see, to that effect, judgment of 12 July 2011, Hitachi and Others v Commission, T‑112/07, EU:T:2011:342, paragraphs 43 and 44).

118 Moreover, in so far as the applicants speculate as to the existence of exculpatory documents provided by the other carriers, they do not provide any prima facie evidence to show that such documents would have been useful for the purposes of the present proceedings (see, to that effect, judgment of 27 September 2012, Koninklijke Wegenbouw Stevin v Commission, T‑357/06, EU:T:2012:488, paragraph 164). Moreover, upholding the applicants’ claims notwithstanding their general nature, would have the consequence of allowing them to benefit from the greater efforts made and resources invested, as the case may be, by the other carriers, contrary to the case-law referred to in paragraph 99 above.

119 As regards, more specifically, the documents underlying the Commission’s statement about the WOW alliance in its decision of 4 July 2005 in Case COMP/M.3770 – Lufthansa/Swiss, it must be noted that the Commission did not rely on those documents in the procedure leading to the contested decision and that the reference made to that decision in footnote 1386 to the contested decision is, as noted by the Commission, based solely on public information.

120 As regards the evidence alleged to demonstrate the existence of capacity agreements between Lufthansa and the addressees of a number of emails sent by Lufthansa regarding an adjustment of its FSC rates, which would help to support a plausible alternative explanation for those emails, namely the legitimate communication of information by a supplier to its customers, it should be pointed out, first, that the applicants, as noted by the Commission, already raised in their reply to the Statement of Objections the argument that the addressees of the emails in question were customers of Lufthansa, secondly, that they already had, by means of the evidence in the investigation file, a list of the carriers party to a capacity purchase agreement with Lufthansa, as they themselves admitted at the hearing, and, thirdly, that the Commission, in the contested decision, rejected their argument by noting, in recital 797, that the announcements had made the applicants aware that Lufthansa was engaged in negotiations with other carriers. It follows that the applicants have failed to demonstrate that the disclosure of that evidence could have been useful to them in the context of their defence.

121 As regards the evidence adduced by the non-incriminated carriers, the applicants’ claim that that evidence could have been exculpatory for their defence, since the non-incriminated carriers were involved in contacts at issue which were relied on against the applicants in the contested decision, is based on extremely general conjecture. Given its general nature, the applicants’ hypothesis cannot constitute a sufficiently precise indication of the existence of exculpatory evidence in the replies of those carriers (see, to that effect, judgment of 27 September 2012, Koninklijke Wegenbouw Stevin v Commission, T‑357/06, EU:T:2012:488, paragraph 164).

122 The same applies to the applicants’ argument that, since their employees only participated ‘in a minor fraction’ of the conduct at issue, the evidence relating to the majority of that conduct is in the hands of the other carriers involved.

123 Lastly, it is to no avail that the applicants rely on the judgment of 29 June 1995, Solvay v Commission (T‑30/91, EU:T:1995:115), in which the Court stated that it was not for the Commission to decide on its own whether the documents seized in the investigation were exculpatory in relation to the undertakings concerned, since that case concerned documents that were part of the investigation file proper. It is clear from the case-law of the Court that the principle that it cannot be for the Commission alone to determine the documents of use in the defence of the undertaking concerned applies only to documents in the Commission’s file and cannot apply to the replies given by other parties concerned to the statement of objections communicated by the Commission (judgment of 16 June 2011, Heineken Nederland and Heineken v Commission, T‑240/07, EU:T:2011:284, paragraph 254).

(c) Conclusion

124 It must be concluded that the Commission was wrong to refuse the applicants access to the passages in the replies to the Statement of Objections referred to in recitals 977 to 979, 1003, 1005 and 1006 of the contested decision. In accordance with the case-law cited in paragraph 96 above, it will be assessed below (see paragraph 550 below), in the context of the examination of the merits of the Commission’s assessments regarding the applicants’ participation in the single and continuous infringement, whether the result at which the Commission arrived would have been different if those passages had to be disallowed as inculpatory evidence.

125 As regards the applicants’ requests for the adoption of measures of organisation of procedure or measures of inquiry in order to obtain the production of the replies, and the annexes thereto, of the addressees of the Statement of Objections and the observations and documents submitted before the Court by the other carriers in their respective actions against the Decision of 9 November 2010, the applicants claim that the production of such documents would enable them to establish that those documents would have been useful for their defence and, therefore, that the non-disclosure thereof constituted an infringement of their rights.

126 In that regard, it is sufficient to note that the Court has been able to rule on the merits of the first plea on the basis of the evidence submitted before it, and that it is the sole judge of whether there is any need for the information available to it concerning the cases before it to be supplemented by taking the measures requested in the present case, which cannot be intended to make up for the applicants’ omission to adduce evidence (see, to that effect, judgment of 16 July 2009, SELEX Sistemi Integrati v Commission, C‑481/07 P, not published, EU:C:2009:461, paragraph 44). It follows that the applicants’ requests must be rejected, both in so far as they relate to the replies to the Statement of Objections and in so far as they relate to the observations submitted before the Court in the context of actions against the Decision of 9 November 2010.

2. The second plea in law, alleging infringement of the right to be heard and lack of jurisdiction

127 The applicants present the present plea in two parts, alleging, first, infringement of the right to be heard and 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 and, secondly, a lack of jurisdiction on the part of the Commission to apply Article 53 of the EEA Agreement to non-EU EEA-Switzerland routes.

(a) The first part of the second plea, alleging infringement of the right to be heard and a lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes

128 The applicants submit, in essence, that the Commission infringed their right to be heard and exceeded the limits of its jurisdiction by finding and penalising an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes, which the Commission disputes.

129 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 penalise 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).

130 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).

131 In recitals 1043 to 1046 of the contested decision, the Commission relied on both the implementation test and the qualified effects test in order to establish its jurisdiction under public international law to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes.

132 Since the applicants allege 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 avail itself of the qualified effects test. To that end, the Court will consider whether the applicants are justified, first, in claiming infringement of their right to be heard in relation to the application of that test and, secondly, in claiming that the Commission erred in its application. In accordance with the case-law cited in paragraph 130 above, it is only where at least one of those two complaints is well founded that it will be necessary to ascertain whether the Commission was entitled to rely on the implementation test.

(1) The right to be heard

133 The applicants claim that the Commission deprived them of the opportunity to comment on the application of the qualified effects test during the administrative procedure. The Commission failed to state in the Statement of Objections that it intended to rely on the qualified effects test. In addition, the Commission failed to state therein the grounds on which it relied in the contested decision in order to conclude that the qualified effects test was satisfied.

134 The Commission disputes the applicants’ line of argument.

135 In that regard, it should be recalled that the statement of objections constitutes the procedural safeguard applying the fundamental principle of EU law which requires observance of the rights of the defence in all proceedings (judgment of 3 September 2009, Papierfabrik August Koehler and Others v Commission, C‑322/07 P, C‑327/07 P and C‑338/07 P, EU:C:2009:500, paragraph 35).

136 That principle requires, in particular, that the Statement of Objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it (judgment of 3 September 2009, Papierfabrik August Koehler and Others v Commission, C‑322/07 P, C‑327/07 P and C‑338/07 P, EU:C:2009:500, paragraph 36).

137 Article 27(1) of Regulation No 1/2003 and Article 11(2) of Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18), which apply that principle, require the Commission to adopt in its final decision only objections in respect of which the undertakings and associations of undertakings concerned have been afforded the opportunity of making known their views.

138 At the same time, account must be taken of the provisional nature of the statement of objections, with the result that the existence of differences between that document and the final decision is not only possible but lawful, in so far as the final decision reflects all the evidence submitted and discussed during the administrative procedure, including after the sending of the statement of objections (see, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 67).

139 It is only if the final decision alleges that the undertakings concerned have committed infringements other than those referred to in the statement of objections or takes into consideration different facts that there will be an infringement of the rights of the defence (see judgment of 14 March 2013, Fresh Del Monte Produce v Commission, T‑587/08, EU:T:2013:129, paragraph 706 and the case-law cited). According to the case-law, that is not the case where the alleged differences between the statement of objections and the contested decision do not concern any conduct other than that in respect of which the parties have already submitted observations and are therefore unrelated to any new complaint (judgment of 29 March 2012, Telefónica and Telefónica de España v Commission, T‑336/07, EU:T:2012:172, paragraphs 84 and 85).

140 It is common ground between the parties that, unlike the contested decision, the Statement of Objections does not refer to the qualified effects test. It should be noted, however, that, by relying in that decision on the qualified effects test to establish its jurisdiction under public international law to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes, the Commission neither advanced new objections against the applicants nor altered the content of those which it had provisionally included in the Statement of Objections.

141 The Commission had already stated in the Statement of Objections that it intended to find an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes. In paragraph 129 of the Statement of Objections, the Commission observed that the ‘infringement covered … freight services within the EU/EEA and Switzerland and on routes between EU/EEA airports and third countries all over the world, in both directions’. Similarly, in paragraph 1430 of the Statement of Objections, the Commission stated that ‘all the anti-competitive activities involving each of the participants fit within an overall aim, namely to agree on pricing or at least to remove pricing uncertainty in the EEA-wide market for air freight, including routes between EEA airports and third countries’.

142 The Commission also justified its jurisdiction to find an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes at the stage of the Statement of Objections. In paragraph 1390 of the Statement of Objections, the Commission stated that it was ‘competent to apply Article [101 TFEU] to the arrangements concerning air transport between [EU] airports and third countries which may have affected trade between Member States’. In paragraph 1394 of the Statement of Objections, the Commission added that it was also ‘competent to apply Article 53 of the EEA Agreement … to the arrangements relating to air transport between EEA airports and third countries which may have affected trade between Member States and Contracting Parties of the EEA Agreement or between Contracting Parties of the EEA Agreement’.

143 Moreover, in their replies to the Statement of Objections, the applicants expressly disputed those assessments. Section 11 of SAS Cargo’s reply to the Statement of Objections and section 6 of SAS Consortium’s reply to the Statement of Objections are thus entirely dedicated to the examination of the Commission’s jurisdiction to find an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes.

144 In recitals 1042 to 1046 of the contested decision, the Commission merely responded to those arguments, in accordance with the possibility afforded to it, in the light of the administrative procedure, to revise or supplement its arguments of fact or law in support of its objections (see, to that effect, judgment of 29 March 2012, Telefónica and Telefónica de España v Commission, T‑336/07, EU:T:2012:172, paragraph 82).

145 In those circumstances, the fact that the qualified effects test was not specifically discussed during the administrative procedure is irrelevant for the purposes of assessing whether the applicants’ rights of defence were respected.

146 It follows that the applicants are not justified in claiming that the Commission infringed their rights of defence by relying on the qualified effects test for the first time in the contested decision.

147 Nor are the applicants justified in claiming that the application of the qualified effects test in recitals 1045 and 1046 of the contested decision is based on facts which the Commission had not relied on in the Statement of Objections. The facts on which those recitals are based are all set out in the Statement of Objections. Thus, the ground referred to in recital 1045 of the contested decision, relating to the effect of the conduct at issue on consumers in the EEA, is based on considerations relating to the price structure of freight services, the role of freight forwarders as intermediaries between the carriers and the shippers, and the nature of the single and continuous infringement (including its classification as a restriction of competition ‘by object’) which were referred to in paragraphs 7, 104, 1396 to 1411 and 1434 to 1438 of the Statement of Objections. Similarly, the ground relating to the effects on competition for interlining services set out in that same recital is based on the considerations relating to the operation of the freight sector referred to in paragraphs 7, 9, 102 and 105 of the Statement of Objections. The geographic scope of the cartel at issue and the inclusion of inbound freight services in the single and continuous infringement referred to in recital 1046 of the contested decision are addressed in paragraphs 3, 125, 129, 1045, 1390, 1394 and 1430 of the Statement of Objections.

148 It follows that the applicants have failed to demonstrate that their right to be heard was infringed in that regard.

(2) The qualified effects test

149 In the application, the applicants disputed the applicability of the qualified effects test, claiming, in essence, that that test was not recognised under EU law and that it had been invoked in breach of the principle of non-retroactivity. However, in the reply, they stated that they were withdrawing those arguments in the light of the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632).

150 The applicants maintain, nevertheless, that the Commission erred in its application of the qualified effects test. The applicants claim that the Commission reversed the burden of proof and relied on considerations that were incorrect and contrary to public international law for the purposes of concluding that that test was satisfied.

151 According to the applicants, it follows from the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632, paragraphs 49 to 51), that the effects of the agreement or practice at issue must be specifically on competition within the internal market. Those effects must be immediate, substantial, foreseeable and probable.

152 In the present case, first, the Commission found that the surcharges were passed on through the production and distribution chain and affected consumers in the EEA by increasing the prices of imported goods. Such effects are neither immediate nor foreseeable. Furthermore, not only are they unsubstantiated, they are purely speculative. The refusal to pay commission, in particular, affected solely freight forwarders.

153 The Commission also failed to prove that the effects of the relevant conduct on consumers in the EEA were substantial. That conduct concerned only two surcharges, which represented a fraction of the final price. As a matter of economic theory, coordination on a small element of the price has no effect on the competitiveness of the total price. Moreover, the effect of the conduct in which the applicants were involved in third countries could only have improved, and not hindered, the competitiveness of the goods imported into the EEA. That conduct led to lower surcharges in the United States, Hong Kong, Japan and Thailand.

154 Secondly, the Commission referred to the effects on competition of interlining services which third-country carriers, without services to the final destination EEA airport, buy from other carriers. In the contested decision, the Commission’s description of those effects was unclear and inadequate. Furthermore, the Commission did not adduce any evidence in support of its reasoning and it is doubtful whether such evidence exists.

155 The Commission disputes the applicants’ line of argument.

156 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.

157 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 the 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’.

158 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.

159 The Court considers it appropriate to examine both the effects of the 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.

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

160 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.

161 In that connection, 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 in 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).

162 In the present case, the applicants dispute the relevance of the effect at issue (see paragraphs 163 to 179 below), and its foreseeability (see paragraphs 183 to 200 below), its substantiality (see paragraphs 201 to 216 below) and its immediacy (see paragraphs 217 to 226 below).

– The relevance of the effect at issue

163 It is clear from the case-law that the fact that an undertaking participating in an agreement or a 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).

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

165 That test does not require it to be established that the conduct at issue produced effects which actually materialised 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 the conduct at issue on competition (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 51).

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

167 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, as the applicants moreover agree, also cannot require the demonstration of the actual effects which presupposes classification of conduct as a restriction of competition ‘by effect’ within the meaning of those provisions.

168 In that connection, it should be recalled, as the applicants submit, 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 which limit competition in 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).

169 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).

171 In those circumstances, interpreting the qualified effects test 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.

172 The applicants cannot, moreover, complain that the Commission failed to analyse the effect at issue sufficiently.

173 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 which they had purchased than would have been charged in the absence of that infringement.

174 Contrary to the applicants’ submission, it cannot be considered that that effect is irrelevant for the purposes of applying the qualified effects test on the ground that it does not specifically impact competition in the internal market.

175 In that regard, in the first place, it should be noted that the applicants have failed to explain what they mean to convey with that argument.

176 In the second place, it must be observed that the applicants are mistaken if their argument is to be interpreted as meaning that the conduct at issue, in so far as it related to inbound routes, was not capable of restricting competition in the EEA, on the ground that that conduct took place in third countries where the freight forwarders who sourced inbound freight services from the incriminated carriers are established.

177 In that connection, 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).

178 In the present case, it is apparent from recitals 14, 17 and 70 of the contested decision and from the parties’ replies to the measures of organisation of procedure of the Court 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 point of 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 applicants achieved only a negligible proportion of their sales of inbound freight services to customers based in the EEA.

179 It must, however, be observed that, although freight forwarders purchase those services, they do so, inter alia, 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.

180 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 be felt and, consequently, it is in the internal market or within the EEA that the effect at issue is liable to materialise.

181 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.

182 In accordance with the case-law cited in paragraph 161 above, the question is therefore whether that effect has the required foreseeability, substantiality and immediacy.

– The foreseeability of the effect at issue

183 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).

184 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).

185 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, jud