Judgment of the General Court of 30 March 2022 — SAS Cargo Group and Others v Commission

(Case T-324/17) (1)

(Competition - Agreements, decisions and concerted practices - Market for airfreight - Decision finding an infringement of 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 - Coordination of elements of the price of airfreight services (fuel surcharge, security surcharge, payment of commission on surcharges) - Exchange of information - Territorial jurisdiction of the Commission - Rights of the defence - Equality of arms - Article 266 TFEU - State coercion - Single and continuous infringement - Amount of the fine - Value of sales - Gravity of the infringement - Duration of participation in the infringement - Mitigating circumstances - Substantially limited involvement - Aggravating circumstances - Repeated infringement - Unlimited jurisdiction)

(2022/C 207/31)

Language of the case: English

Parties

Applicants: SAS Cargo Group A/S (Kastrup, Denmark), Scandinavian Airlines System Denmark-Norway-Sweden (Stockholm, Sweden), SAS AB (Stockholm) (represented by: B. Creve, M. Kofmann, J. Killick and G. Forwood, lawyers)

Defendant: European Commission (represented by: A. Dawes and C. Vollrath, acting as Agents, and by B. Doherty, Barrister)

Re:

Application under Article 263 TFEU seeking, in essence, annulment of 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) in so far as it relates to the applicants and, in the alternative, a reduction of the amount of the fine imposed on them.

Operative part of the judgment

The Court:

1. Annuls Article 1(1)(o), (p) and (q), (2)(o) and (p), (3)(o) and (p), and (4)(o), (p) and (q) of 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) in so far as it finds that SAS AB, SAS Cargo Group A/S and Scandinavian Airlines System Denmark-Norway-Sweden participated in the component of the single and continuous infringement relating to the refusal to pay commission on surcharges;

2. Annuls Article 1(2)(o) and (p) in so far as it finds an infringement of Article 101 TFEU on routes from Thailand to the European Union between 20 July 2005 and 14 February 2006 as regards the element relating to the FSC, and Article 1(3)(o) and (p), in so far as it finds an infringement of Article 53 of the EEA Agreement on routes from Thailand to the European Economic Area between 20 July 2005 and 14 February 2006 as regards the element relating to the FSC;

3. Annuls Article 3(n) to (r);

4. The amount of the fine imposed on Scandinavian Airlines System Denmark-Norway-Sweden is set at EUR 7 030 618, the fine imposed on SAS Cargo Group and Scandinavian Airlines System Denmark-Norway-Sweden jointly and severally must be set at EUR 5 937 909, the fine imposed on SAS Cargo Group, Scandinavian Airlines System Denmark-Norway-Sweden and SAS jointly and severally must be set at EUR 6 314 572, the fine imposed on SAS Cargo Group and SAS jointly and severally must be set at EUR 29 045 427 and the fine imposed on SAS Cargo Group must be set at EUR 21 687 090;

5. Dismisses the action as to the remainder;

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

7. Orders SAS Cargo Group, Scandinavian Airlines System Denmark-Norway-Sweden and SAS to bear one quarter of their own costs.

(1) OJ C 239, 24.7.2017.