Appeal brought on 7 June 2022 by Air Canada against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 30 March 2022 in Case T-326/17, Air Canada v Commission

(Case C-367/22 P)

(2022/C 303/25)

Language of the case: English

Parties

Appellant: Air Canada (represented by: T. Soames, avocat, and I.-Z. Prodromou-Stamoudi, dikigoros)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the judgment under appeal;

— annul the 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) (the ‘Decision’) or, in the alternative, any one or more of Art. 1(1)(a), 1(2)(a), 1(3)(a) and 1(4)(a);

— annul Art. 3 or, in the alternative, reduce substantially the amount of the fine imposed on Air Canada;

— in the alternative, refer the case back to the General Court for determination in accordance with the judgment of the Court; and

— order the Commission to pay the appellant’s costs before the Court and the remaining two thirds of the costs before the General Court.

Pleas in law and main arguments

In support of the Appeal, the appellant relies on three pleas in law:

By the first ground of appeal, which is divided in two parts the appellant claims that the General Court erred in law in its assessment of the Commission’s jurisdiction to find and penalise an infringement of Art. 101 TFEU and Art. 53 EEA on inbound routes.

The General Court committed a manifest error of law by finding that Art. 101(1) TFEU can be applied to conduct involving price coordination outside the EU based on the qualified effects test alone without it being necessary to assess whether the conduct has the object or effect of restricting or distorting competition in the internal market.

The General Court committed manifest errors of law in reviewing the Decision’s assessment of the effects of coordination in relation to inbound freight services in so far as it: (i) misapplied and confused the relevant case-law concerning the assessment of anticompetitive effects stemming from by object infringements of competition law in the context of asserting jurisdiction to apply Art. 101 TFEU and Art. 53 EEA; (ii) held that the Commission satisfied the qualified effects test when it failed to discharge its obligation to assess properly or at all the evidentiary proof necessary to establish jurisdiction on inbound routes to satisfy the test in its Decision; (iii) erred in reversing the applicable burden of proof and taking issues with Air Canada’s alleged failure to disprove the existence of effects the Decision never even established; (iv) substituted its own reasoning for that of the Commission on how and why the qualified effects test is supposedly satisfied; (v) infringed Air Canada’s rights of defence by assessing the Decision’s legality pursuant to arguments, interpretation and analysis made for the first time during the annulment proceedings; (vi) misapplied and confused the relevant case-law concerning the single and continuous infringement; and (vii) failed to review properly the Decision’s assessment of the effects of the single and continuous infringement taken as a whole.

By the second ground of appeal, the appellant alleges manifest errors of law in the General Court’s assessment of Air Canada’s liability on routes it never operated or which it could not legally have operated to the extent that it: (i) substituted the Commission’s reasoning in the Decision for its own and, by so doing, adopted a position contrary to the actual wording of the Decision itself; (ii) infringed Air Canada’s rights of defence by relying on arguments, interpretation and analysis never put to Air Canada during the administrative procedure; (iii) failed to state sufficiently clear and unequivocal reasons as to why it reached its final conclusions; and (iv) relied on case-law not on point and, in any event, applied this wrongly.

By the third ground of appeal, the appellant alleges manifest errors of law in the General Court’s failure to assess on its own motion the Commission’s lack of temporal competence to fine Air Canada after expiration of the limitation period.