Judgment of the General Court (First Chamber) of 16 December 2015 —

SAS Cargo Group and Others v Commission

(Case T‑56/11)

‛Competition — Agreements, decisions and concerted practices — European airfreight market — Agreements and concerted practices in respect of several elements of the pricing of airfreight services (imposition of fuel and security surcharges, refusal to pay commission on surcharges) — Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and Switzerland on Air Transport — Obligation to state reasons’

1. Actions for annulment — Grounds — Infringement of essential procedural requirements — Lack of or inadequate statement of reasons — To be considered of the Court’s own motion (Arts 263 TFEU and 296 TFEU) (see para. 34)

2. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — Decision of the Commission finding an infringement and imposing a fine — Requirements arising from the principle of effective judicial protection — Clarity and precision of the operative part of the decision (Arts 101(1) TFEU and 296 TFEU; EEA Agreement, Art. 53; EC-Switzerland Agreement on Air Transport, Art. 8; Council Regulation No 1/2003, Arts 2 and 23(5)) (see paras 37-41)

3. Competition — Administrative procedure — Commission decision finding an infringement — Identification of the persons forming the subject-matter of a decision — Priority of the operative part over the statement of reasons (Arts 101(1) TFEU and 296 TFEU; EEA Agreement, Art. 53; EC-Switzerland Agreement on Air Transport, Art. 8; Council Regulation No 1/2003, Art. 2) (see para. 42)

4. Agreements, decisions and concerted practices — Prohibition — Direct effect — Right of individuals to claim compensation for damage suffered — Procedures for exercising — Infringements forming the subject-matter of a decision of the Commission — Binding nature of the decision on national courts — Scope — Importance of the clarity and precision of the operative part of the decision (Arts 101(1) TFEU and 296 TFEU; EEA Agreement, Art. 53; EC-Switzerland Agreement on Air Transport, Art. 8; Council Regulation No 1/2003, Arts 2 and 16(1)) (see paras 43-49)

5. Agreements, decisions and concerted practices — Agreements and concerted practices constituting a single infringement — Undertakings that may be held responsible for participating in an overall cartel — Criteria — Single objective and overall plan (Art. 101(1) TFEU; EEA Agreement, Art. 53; EC-Switzerland Agreement on Air Transport, Art. 8; Council Regulation No 1/2003, Art. 2) (see paras 62, 67)

6. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — Decision of the Commission finding an infringement and imposing a fine — Internal contradictions in the decision — Consequences — Annulment — Conditions — Defence rights of the penalised undertaking affected — Impossibility of the EU judicature exercising its review (Arts 101(1) TFEU and 296 TFEU; EEA Agreement, Art. 53; EC-Switzerland Agreement on Air Transport, Art. 8; Council Regulation No 1/2003, Art. 2) (see paras 65, 81-83, 89, 90)

7. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — Correction of an error of reasoning during the proceedings before the Court — Not permissible (Arts 101(1) TFEU and 296 TFEU; EEA Agreement, Art. 53; EC-Switzerland Agreement on Air Transport, Art. 8; Council Regulation No 1/2003, Art. 2) (see paras 87, 88)

Re:

APPLICATION for annulment of Commission Decision C(2010) 7694 final of 9 November 2010 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 COMP/39258 — Airfreight).

Operative part

The Court:

1. Annuls Commission Decision C(2010) 7694 final of 9 November 2010 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 COMP/39258 — Airfreight), in so far as it concerns SAS Cargo Group A/S, Scandinavian Airlines System Denmark-Norway-Sweden and SAS AB;

2. Dismisses the remainder of the action;

3. Orders the European Commission to bear its own costs and to pay those of SAS Cargo Group, Scandinavian Airlines System Denmark-Norway-Sweden and SAS;