Judgment of the General Court (Ninth Chamber) of 29 February 2016 — Deutsche Bahn and Others v Commission

(Case T‑267/12)

‛Competition — Agreements, decisions and concerted practices — International air freight forwarding services — Decision finding an infringement of Article 101 TFEU — Price fixing — Surcharges and charging mechanisms affecting the final price — Evidence contained in an application for immunity — Protection of the confidentiality of communications between lawyers and clients — Code of Conduct rules on the duty of loyalty and prohibition on double representation — Fiduciary duties — Whether unlawful conduct can be attributed — Choice of companies — Fines — Proportionality — Gravity of the infringement — Mitigating circumstances — Equal treatment — Cooperation — Partial immunity from a fine — Unlimited jurisdiction — Settlement — 2006 Guidelines on the method of setting fines’

1. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope (Art. 261 TFEU; Council Regulation No 1/2003, Art. 31) (see paras 34-37)

2. Competition — Administrative procedure — Commission decision finding an infringement — Use as evidence of statements of other undertakings which participated in the infringement — Lawfulness — Conditions (Art. 101 TFEU; Council Regulation No 1/2003, Art. 2) (see paras 43-45)

3. Competition — Administrative procedure — Commission’s powers of investigation — Power to demand production of a communication between lawyer and client — Limits — Protection of the confidentiality of such a communication — Scope (Art. 101 TFEU; Council Regulation No 1/2003, Arts 2, 17 and 19) (see paras 48, 49)

4. Competition — Transport — Competition rules — Air transport — Regulation No 17 — Scope — Activities directly concerning the provision of air transport services — Not included — Activities not concerning the air transport market itself, but an upstream or downstream market — Inclusion (Art. 101 TFEU; Council Regulations No 17, No 141, third recital and Art. 1) (see paras 80-86)

5. Competition — EU rules — Infringements — Attribution — Legal entity liable for the infringement — Disappearance at the time of adoption of the Commission decision or transfer of its business to another entity having a structural link with it — Imputation to economic successor — Lawfulness (Art. 101 TFEU) (see paras 120-124)

6. Competition — Administrative procedure — Commission decision finding an infringement and imposing a fine — Choice of legal entities subject to a penalty — Margin of discretion — Limits — Respect for the principle of equal treatment (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2)) (see paras 142-150)

7. Act of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — No possibility of Commission regularising the lack of a statement of reasons for the decision during the procedure before EU bodies (Arts 101 TFEU and 296 TFEU) (see paras 160-162, 445)

8. Competition — Fines — Amount — Determination — Determination of the base amount — Determination of the value of sales — Gravity of the infringement — Determination of the fine in proportion to the factors for assessment of the gravity of the infringement — Overall turnover of the undertaking concerned — Turnover corresponding to the goods covered by the infringement — To be taken into consideration — Limits (Art. 101 TFEU; Charter of Fundamental Rights, Art. 49(3); Council Regulation No 1/2003, Art. 23(3); Commission Notice 2006/C 210/02, point 13) (see paras 175-179)

9. Competition — Fines — Guidelines on the method of setting fines — Legal nature — Indicative rule of conduct implying a self-limitation on the discretion of the Commission — Possibility of the Commission departing therefrom — Conditions (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, points 13 and 37) (see paras 180-183)

10. Competition — Fines — Amount — Determination — Determination of the base amount — Determination of the value of sales — Sales carried out in direct or indirect relation to the infringement — Cartel in the international freight forwarding sector — Cartel covering transport services as a block of services — Account taken of the value of sales realised with transport services as a block of services — Lawfulness (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 13) (see paras 187-201, 205-207)

11. Competition — Fines — Amount — Determination — Determination of the base amount — Determination of the value of sales — Sales carried out in direct or indirect relation to the infringement — Limitation to sales actually carried out by the cartel — None (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 13) (see paras 215-218)

12. Competition — Fines — Amount — Determination — Guidelines adopted by the Commission — Existence of a cartel concerning a market upstream of the market concerned by the infringement — Not obliging the Commission to depart from the Guidelines (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 13) (see paras 224-228)

13. Competition — Fines — Amount — Determination — Pursuit of an objective of general prevention — Lawfulness (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 13) (see para. 239)

14. Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Existence of a cartel concerning a market upstream of the market concerned by the infringement — Absence (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 29) (see paras 265-267)

15. Competition — Fines — Amount — Determination — Principle of equal treatment — Commission’s decision-making practice — Indicative nature (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 13) (see paras 274-278, 452)

16. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Scope — Refusal to communicate a document — Consequences — Need to draw a distinction, in relation to the burden of proof borne by the undertaking concerned, between incriminating and exculpatory documents (Art. 101 TFEU; Council Regulation No 1/2003, Art. 27(1) and (2); Commission Regulation No 773/2004, Art. 15) (see paras 290-294)

17. Competition — Fines — Amount — Determination — Adjustment of the basic amount — Communication of the Commission on immunity form fines and reduction in their amount for cooperation of the undertakings concerned — Binding upon the Commission — Breach of principle of the protection of legitimate expectation — Conditions (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 298/11, point 38) (see para. 303)

18. Competition — Fines — Amount — Determination — Legal context — Guidelines adopted by the Commission — Communication of the Commission on immunity form fines and reduction in their amount for cooperation of the undertakings concerned — Discretion of the Commission — Judicial review — Scope (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 298/11) (see para. 315)

19. Competition — Administrative procedure — Commission’s power of inspection — Decision ordering an inspection — Obligation to state reasons — Scope (Art. 101 TFEU; Council Regulation No 1/2003, Art. 20(4)) (see paras 317-319)

20. Competition — Fines — Amount — Determination — Criteria — Non-imposition or reduction of the fine for cooperation of the undertaking concerned — Granting of a conditional immunity from fines — Condition — Information provided having to enable the Commission to form a detailed and precise idea of the nature and extent of the presumed cartel — None — Information having to make it possible to carry out a targeted investigation in relation to a presumed infringement (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 298/11, points 8(a), 9(a), and 18) (see paras 335-338, 364)

21. Competition — Fines — Amount — Determination — Adjustment of the basic amount — Communication of the Commission on immunity from fines and reduction in their amount for cooperation of the undertakings concerned — Undertaking being the first to provide decisive proof — Criteria for assessment (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 298/11, point 26, third para.) (see paras 375-377)

22. Competition — Administrative procedure — Settlement procedure — Opening — Discretion of the Commission — Scope (Arts 101 TFEU and 102 TFEU; Commission Regulations No 773/2004, Art. 10a(1), and No 622/2008, fourth recital; Commission Notice 2008/C 167/01) (see paras 417, 418, 424, 438)

Re:

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

Operative part

The Court:

1. Dismisses the action;