Judgments nº T-265/12 of The General Court, February 29, 2016

• Resolution Date: February 29, 2016
• Issuing Organization: The General Court
• Decision Number: T-265/12

(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 duty of loyalty and prohibition on double representation - Fiduciary duties - Whether trade between Member States affected - Whether unlawful conduct can be attributed - Choice of companies - Fines - Proportionality - Gravity of the infringement - Mitigating circumstances - Equal treatment - Cooperation - Settlement - 2006 Guidelines on the method of setting fines)

In Case T-265/12,

Schenker Ltd, established in Feltham (United Kingdom), represented by F. Montag, B. Kacholdt and F. Hoseinian, lawyers, and by D. Colgan and T. Morgan, Solicitors,

applicant,

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 applicant, and for variation of the fine imposed on it in that decision,

THE GENERAL COURT (Ninth Chamber),

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

Registrar: C. Kristensen, 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 sector of international air freight forwarding services had, in periods between 2002 and 2007, participated in various agreements and concerted practices in the sector of international air freight forwarding services, 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 applicant, Schenker Ltd, is owned by Deutsche Bahn AG (‘DB’), 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 in particular via the Schenker group of companies, consisting of a number of entities, including the applicant, the DB group provides, in particular, 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 Ltd (UK). After its business was transferred to the applicant, Bax Global (UK) ceased trading and ceased to exist.

3 This case concerns only one of the four infringements referred to in paragraph 1 above, namely the new export system (‘NES’) cartel. This case does not concern the currency adjustment factor (‘CAF’) cartel, the advanced manifest system (‘AMS’) cartel and the peak season surcharge (‘PSS’) cartel. In so far as, by the contested decision, the Commission penalised other companies in the DB group for their participation in the CAF, AMS and PSS cartels, those companies have brought a separate action, which forms the subject matter of Case T-267/12.

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 business has 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 description which the Commission provided of the NES cartel in recitals 92 to 114 of the contested decision may be summarised as follows: the NES is a pre-clearance system for exports from the United Kingdom to countries outside the European Economic Area which was introduced by the United Kingdom authorities in 2002. At a meeting, several freight forwarders agreed to introduce a surcharge for NES declarations, agreed on the levels of the surcharge and on the timing of its application. Following that meeting, those freight forwarders exchanged several emails in order to monitor the implementation of the agreement on the market. The anticompetitive contacts lasted from 1 October 2002 until 10 March 2003.

6 The discussions concerning the AMS cartel and the monitoring of its implementation took place, in particular, in the context of the Freight Forward International Association (known as Freight Forward Europe before 1 January 2004; ‘the FFI Association’).

7 It is stated in recital 72 of the contested decision that the Commission began its investigation following the application for immunity 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 oral 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.

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

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

10 On 5 February 2010 the Commission sent a statement of objections to the applicant, to which it replied (recitals 87 and 89 of the contested decision).

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

12 In the contested decision, having regard to the evidence in its possession, the Commission held that, as the economic successor of Bax Global (UK), the applicant was liable for the participation of Bax Global (UK) in the NES cartel.

13 In Article 1(1)(a) of the contested decision, the Commission found that, in relation to the NES cartel, as an economic successor of Bax Global (UK), the applicant had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating from 1 October 2002 until 10 March 2003 in a single and continuous infringement in the air freight forwarding services sector which covered the territory of the United Kingdom, and which consisted in fixing prices or other trading conditions. Article 2(1)(a) of the contested decision provides that, for that infringement, a fine amounting to EUR 3 673 000 was imposed on the applicant. The applicant received no reduction of its fine for cooperation with the Commission.

14 It is stated in recital 856 of the contested decision that the fine imposed was calculated on the basis of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’).

Procedure before the General Court and forms of order sought

15 By application lodged at the Court Registry on 12 June 2012, the applicant brought this action.

16 On the proposal of the Judge-Rapporteur, the Court (Ninth Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure under Article 64 of the Rules of Procedure of 2 May 1991, sent questions to which the parties were invited to reply. The parties complied with that request within the period prescribed.

17 By letter of 5 September 2014, the applicant lodged observations on the report for the hearing.

18 The parties presented oral argument and replied to questions put by the Court at the hearing on 24 September 2014.

19 The applicant claims that the Court should:

- annul Article 1(1)(a) of the contested decision;

- annul in its entirety or, in the alternative, reduce the fine imposed in Article 2(1)(a) of the contested decision;

- order the Commission to pay the costs.

20 The Commission contends that the Court should:

- dismiss the action;

- order the applicant to pay the costs.

Law

21 In support of its action, the applicant relies on seven pleas in law.

22 The first plea in law alleges (i) infringement of Articles 4, 7 and 27(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1), breach of the rights of the defence and of the right to a fair hearing, and (ii) breach of the principle of sound administration. In essence, the applicant claims that the information and evidence contained in DP’s application for immunity were inadmissible.

23 By the second plea, the applicant claims that the Commission had no power to adopt a decision concerning the NES cartel, since that cartel was exempt from the application of European Union competition law pursuant to Article 1 of Regulation No 141 of the Council of 26 November 1962 exempting transport from the application of Council Regulation No 17 (OJ, English Special Edition, Series I 1959-1962, p. 291).

24 In the third plea in law, the applicant claims that, in...