EN Official Journal of the European Union C 251/18

Appeal brought on 10 May 2016 by Kühne + Nagel International AG against the judgment delivered on 29 February 2016 in Case T-254/12 Kühne + Nagel International AG v European Commission

(Case C-261/16 P)

(2016/C 251/19)

Language of the case: German

Parties

Appellants: Kühne + Nagel International AG, Kühne + Nagel Management AG, Kühne + Nagel Ltd, Kühne + Nagel Ltd, Kühne + Nagel Ltd (represented by: U. Denzel, C. von Köckritz and C. Klöppner, lawyers)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

1. set aside the judgment of the General Court (Ninth Chamber) of 29 February 2016 in Case T-254/12;

2. annul, pursuant to the fourth paragraph of Article 263 TFEU, Article 1(1) and (2), Article 2 and Article 3 of the Commission decision of 28 May 2012 in Case COMP/39462 — Freight forwarding, C(2012) 1959 final, in so far as it concerns the appellants;

3. annul or substantially reduce the fines imposed on the appellants in the aforementioned decision;

4. order the Commission to pay the appellants’ costs in respect of the proceedings before the General Court and the Court of Justice.

Pleas in law and main arguments

The appellants put forward five grounds of appeal:

First, the General Court errs in law in assuming that the concerted practices relating to NES and AMS infringe Article 101 TFEU. Article 101 TFEU is not applicable to those concerted practices because they were not capable of affecting inter-State trade.

Secondly, the calculation of the fine imposed on the appellants is marred by an error in law. Concerted practices contrary to the law on cartels were established in relation to individual charges (‘fees’ or ‘surcharges’). In that regard, the General Court ought to have calculated the fine to be imposed only on the basis of the turnovers redeemed with the respective fee. The General Court misjudged that, by including additional turnovers (in particular the freight rate) in the calculation of the fine, the Commission infringed recital 13 of the guidelines on the setting of fines. By implicitly also taking the exercise of its unlimited jurisdiction to review as a basis for that method, the General Court itself thereby incorrectly exercised that power.

Thirdly, the General Court infringed the principle of equal treatment. Unlike the other freight forwarders, K+N does not operate according to the consolidation model but, from an economic point of view, behaves as a classic intermediary in over 90 % of transactions. Due to the quite significant differences in the business model, the General Court ought to have proceeded differently and should not have treated different situations in the same way. In particular, the General Court should have annulled the Commission’s calculation of the fine and should have determined, as against the appellants, a fine only on the basis of the turnovers generated with the respective ‘fees’ or ‘surcharges’.

Fourthly, the fine imposed by the General Court is grossly disproportionate. The fine approved by the General Court is clearly excessive and also cannot be justified on grounds of deterrence.

Fifthly, the General Court did not observe the Air Transport Exemption and thus erroneously took, in relation to NES and AMS, the applicability of Article 101 TFEU as a starting point.