Judgment of the General Court (Ninth Chamber) of 29 February 2016 —

EGL and Others v Commission

(Case T‑251/12)

‛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 — Definition of the market — Effect on trade between Member States — Cooperation — Partial immunity from a fine’

1. Agreements, decisions and concerted practices — Definition of the market — Purpose — Determination of the effect on trade between Member States — Obligation to define the market in question — Scope — Determination of the relevant market — Criteria for assessment — Substitutability of the products or services on the supply side or the demand side (Art. 101(1) TFEU; EEA Agreement, Art. 53(1); Commission Notices 97/C 372/03 and 2004/C 101/07, point 55) (see paras 33, 34, 42, 48, 52, 53)

2. 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 affected by the cartel — None (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 13) (see para. 61)

3. Agreements, decisions and concerted practices — Effect on trade between Member States — Appreciable effect — Criteria for assessment — Potential and significant effect (Art. 101(1) TFEU; EEA Agreement, Art. 53(1); Commission Notice 2004/C 101/07, point 53) (see paras 64-66, 74, 85, 87)

4. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Anti-competitive object — Sufficient — Distinction between infringements by object and infringements by effect (Art. 101(1) TFEU; EEA Agreement, Art. 53(1)) (see paras 93, 95)

5. 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 and No 141, third recital and Art. 1) (see paras 106, 107, 109-111, 114, 115, 118)

6. 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 — Inclusion of costs inherent to the prices of the goods and services sold (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 13) (see paras 119, 120)

7. Competition — Fines — Decision imposing fines — Obligation to state reasons — Scope — Indication of the evidence which enabled the Commission to measure the gravity of the infringement — Sufficient indication (Arts 101 TFEU and 296, second para., TFEU; Council Regulation No 1/2003, Art. 23(2) and (3)) (see paras 132, 133)

8. 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 — Supply of evidence enabling the Commission to carry out a targeted investigation in relation to a presumed infringement — Scope (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 298/11, points 4, 8(a), 18 and 22) (see paras 139, 144, 166, 167, 174-178, 187)

9. Competition — Fines — Amount — Determination — Adjustment of the basic amount — Leniency rules — Complex evaluation of economic matters — Commission’s margin of discretion — Judicial review — Review of legality — Scope (Arts 101 TFEU and 263 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2002/C 45/03, point 8(a)) (see para. 146)

10. Competition — Administrative procedure — Commission’s power of inspection — Decision ordering an inspection — Obligation to state reasons — Scope — Clear indication of the evidence suggesting an infringement (Art. 101 TFEU; Council Regulation No 1/2003, Art. 20(4)) (see paras 148-150)

11. Competition — Fines — Amount — Determination — Commission notice on the non-imposition or reduction of fines in cartel cases in return for the cooperation of the fined undertakings — 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. 180)

12. Competition — Fines — Amount — Determination — Adjustment of the basic amount — Mitigating circumstances — Cooperation of the undertaking concerned outside the scope of the Leniency Notice — Criteria for assessment — Double reduction under the Leniency Notice and under the Guidelines — Exclusion (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notices 2006/C 298/11 and 2006/C 210/02, point 29, fourth indent) (see paras 187, 189-192)

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 or, in the alternative, for variation of the fines imposed on them in that decision.

Operative part

The Court:

1. Dismisses the action;