Judgments nº T-267/12 of The General Court, February 29, 2016

• Resolution Date: February 29, 2016
• Issuing Organization: The General Court
• Decision Number: 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)

In Case T-267/12,

Deutsche Bahn AG, established in Berlin (Germany),

Schenker AG, established in Essen (Germany),

Schenker China Ltd, established in Shanghai (China),

Schenker International (HK) Ltd, established in Hong Kong (China),

represented by F. Montag, B. Kacholdt, F. Hoseinian, lawyers, and by D. Colgan and T. Morgan, Solicitors,

applicants,

v

European Commission, represented initially by A. Dawes and N. von Lingen, and subsequently by A. Dawes and G. Meessen, acting as Agents, and by B. Kennelly and H. Mussa, Barristers,

defendant,

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,

THE GENERAL COURT (Ninth Chamber),

composed of G. Berardis, President, O. Czúcz (Rapporteur) and A. Popescu, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written procedure and further to the hearing on 24 September 2014,

gives the following

Judgment

Background to the dispute and the contested decision

1 By 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) (‘the contested decision’), the European Commission found that companies active in the international air freight forwarding services sector had, in periods between 2002 and 2007, participated in various agreements and concerted practices in the international air freight forwarding services sector, giving rise to four separate infringements of Article 101(1) TFEU and Article 53(1) of the Agreement on the European Economic Area (EEA).

2 The first applicant, Deutsche Bahn AG (‘DB’), is a joint-stock company governed by German law and wholly owned by the Federal Republic of Germany. DB is the holding company of a group of companies (‘the DB group’) providing mobility and logistics services worldwide. Under the brand DB Schenker and notably through the Schenker group of companies, which comprises a number of entities including Schenker AG (the second applicant), Schenker China Ltd (the third applicant) and Schenker International (HK) Ltd (the fourth applicant), the DB group provides, inter alia, air freight forwarding services. [confidential], (1) The Brink’s Company (‘Brink’s’) sold to DB a group of companies run by Bax Global Inc., one of which was Bax Global (China) Co. Ltd. After its business was transferred to Schenker China, Bax Global (China) ceased trading and ceased to exist.

3 The present case concerns only three of the four infringements referred to in paragraph 1 above, namely the currency adjustment factor (‘CAF’) cartel, the advanced manifest system (‘AMS’) cartel and the peak season surcharge (‘PSS’) cartel. It does not concern the new export system (‘NES’) cartel. As regards the latter infringement, another company in the DB group has brought an action which forms the subject matter of Case T-265/12.

4 The cartels referred to in paragraph 3 above concern the market in international air freight forwarding services. According to the Commission’s description of that sector in recitals 3 to 71 of the contested decision, freight forwarding services may be defined as the organisation of transportation of items, which may also include activities such as customs clearance, warehousing or ground services, on behalf of customers according to their needs. The freight forwarding services have been segmented into domestic and international freight forwarding and into freight forwarding by air, land and sea (recital 3 of the contested decision).

5 The Commission’s findings in relation to the AMS, CAF and PSS cartels may be summarised as follows:

- the AMS cartel, which is described in recitals 131 to 163 of the contested decision, concerns a surcharge introduced from early 2003, following significant amendments to the AMS made by the United States Bureau of Customs and Border Protection after the terrorist attacks of 11 September 2001; a number of international freight forwarders agreed from at least 19 March 2003 until 19 August 2004 to fix a surcharge at a level that would enable them to cover at least the costs associated with the AMS; the discussions between the undertakings participating in the cartel and the monitoring of its implementation took place, in particular, within the framework of the Freight Forward International Association (named Freight Forward Europe before 1 January 2004; ‘the FFI Association’);

- the CAF cartel, which is described in recitals 213 to 263 of the contested decision, was aimed at finding an agreement on a common tariff strategy in order to deal with the risk of a fall in profits owing to the appreciation of the Chinese currency, the renminbi, against the United States dollar, following the decision of the People’s Bank of China in 2005 that it would no longer peg the renminbi to the United States dollar; a number of international freight forwarders decided to convert all contracts with their customers into renminbi and, if this was not possible, to introduce a surcharge (CAF) and to set its level; the discussions took place in China between 27 July 2005 and 13 March 2006;

- the PSS cartel, which is described in recitals 300 to 342 of the contested decision, concerned an agreement between a number of international freight forwarders between August 2005 and May 2007 relating to the application of a temporary rate adjustment factor; that factor was imposed as a reaction to increased demand in the air freight forwarding sector at certain times, such as the Christmas period, which led to a shortage of transportation capacity and an increase in transport rates; it was designed to protect the freight forwarders’ margins.

6 It is stated in recital 72 of the contested decision that the Commission began its investigation after an application for immunity was submitted by Deutsche Post AG (‘DP’) under the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the 2006 Leniency Notice’). DP supplemented its application for immunity by statements and documentary evidence. By letter of 24 September 2007 the Commission granted conditional immunity to DP with respect to an alleged cartel among the private providers of international air freight forwarding services, aimed at fixing or passing on various fees and surcharges.

7 The Commission carried out unannounced inspections between 10 and 12 October 2007.

8 [confidential] DB and its subsidiaries submitted an application for immunity or, failing that, for a reduction of the fine pursuant to the leniency programme (recital 76 of the contested decision).

9 On 5 February 2010 the Commission sent a statement of objections to the applicants, DB, Schenker, Schenker International (HK) and Schenker China, to which they responded (recitals 87 and 89 of the contested decision).

10 Between 6 and 9 July 2010 the Commission held a hearing in which the applicants took part (recital 89 of the contested decision).

11 In the contested decision, having regard to the evidence in its possession, the Commission held that the applicants had taken part in the AMS, CAF and PSS infringements and that, as an economic successor of Bax Global (China), Schenker China was liable for the participation of Bax Global (China) in the CAF cartel.

12 In Article 1(2)(g) of the contested decision, the Commission found that, in relation to the AMS cartel, Schenker and DB had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating from 25 March 2003 until 19 August 2004 in a single and continuous infringement in the air freight forwarding services sector, which covered the whole of the EEA, and which consisted in fixing prices or other trading conditions. Article 2(2)(g) of the contested decision provides that, for that infringement, a fine of EUR 23 091 000 was imposed jointly and severally on Schenker and DB. For their cooperation, Schenker and DB received a 25% reduction of their fine.

13 In Article 1(3)(a) of the contested decision, the Commission found that, in relation to the CAF cartel, Schenker China, as an economic successor of Bax Global (China), had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating, from 27 July 2005 until 13 March 2006, in a single and continuous infringement in the air freight forwarding services sector, which covered the whole of the EEA, and which consisted in fixing prices or other trading conditions. Article 2(3)(a) of the contested decision provides that, for that infringement, a fine of EUR 2 444 000 was imposed on Schenker China as an economic successor of Bax Global (China). For its cooperation, Schenker China received a 20% reduction of its fine.

14 In Article 1(3)(b) of the contested decision, the Commission found that, in relation to the CAF cartel, Schenker China and DB had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating, from 29 July 2005 until 13 March 2006, in a single and...