Japan Airlines Co. Ltd v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2022:181
• Docket Number: T-340/17
• Date: 30 March 2022
• Celex Number: 62017TJ0340
• Court: General Court (European Union)

JUDGMENT OF THE GENERAL COURT (Fourth Chamber, Extended Composition)

30 March 2022 (*)

(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 – Article 266 TFEU – Limitation period – Rights of the defence – Non-discrimination – Single and continuous infringement – Amount of the fine – Value of sales – Gravity of the infringement – Additional amount – Mitigating circumstances – Encouragement of the anticompetitive conduct by public authorities – Substantially limited involvement – Proportionality – Unlimited jurisdiction)

In Case T‑340/17,

Japan Airlines Co. Ltd, established in Tokyo (Japan), represented by J.‑F. Bellis and K. Van Hove, lawyers, and R. Burton, Solicitor,

applicant,

v

European Commission, represented by A. Dawes, G. Koleva and C. Urraca Caviedes, acting as Agents, and by J. Holmes QC,

defendant,

APPLICATION under Article 263 TFEU for 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 applicant and, in the alternative, for a reduction in the amount of the fine imposed on the applicant,

THE GENERAL COURT (Fourth Chamber, Extended Composition),

composed of H. Kanninen (Rapporteur), President, J. Schwarcz, C. Iliopoulos, D. Spielmann and I. Reine, Judges,

Registrar: L. Ramette, Administrator,

having regard to the written part of the procedure and further to the hearing on 3 July 2019,

gives the following

Judgment

I. Background to the dispute

1 The applicant, Japan Airlines Co. Ltd, formerly Japan Airlines International Co. Ltd, is an air transport company. At the material time, the applicant was a subsidiary of Japan Airlines Corp., which has been absorbed by the applicant, its legal successor. It is active on the market for airfreight (‘freight’) services through one of its divisions, named JAL Cargo.

2 In the freight sector, airlines provide for the carriage of cargo by air (‘carriers’). As a general rule, carriers supply freight services to freight forwarders, who arrange the transport of that cargo on behalf of shippers. In return, those freight forwarders pay the carriers a price consisting, on the one hand, of rates calculated on a per-kilogram basis and negotiated either on a long-term basis (typically one season, namely six months) or on an ad-hoc basis, and, on the other hand, of various surcharges, which are intended to cover certain costs.

3 There are four different types of carrier: first, those which exclusively operate dedicated freighter airplanes, second, those with cargo capacity on passenger flights, third, those with both dedicated freighter airplanes and with cargo capacity on passenger flights (combination airlines) and, fourth, integrators with dedicated freighter airplanes providing both integrated express delivery services and general cargo services.

4 No carrier is able to serve all major cargo destinations in the world with sufficient frequency, and therefore agreements among carriers enabling them to increase their network coverage or improve their schedules have become common, including in the context of broader commercial alliances between carriers. At the material time, those alliances included inter alia the WOW alliance, which brought together Deutsche Lufthansa AG (‘Lufthansa’), SAS Cargo Group A/S (‘SAS Cargo’), Singapore Airlines Cargo Pte Ltd (‘SAC’) and the applicant.

A. Administrative procedure

5 On 7 December 2005, the Commission of the European Communities received an application for immunity under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) lodged by Lufthansa and its subsidiaries, Lufthansa Cargo AG and Swiss International Air Lines AG (‘Swiss’). The application alleged that extensive anticompetitive contacts were being maintained between a number of carriers with regard, inter alia, to:

– the fuel surcharge (‘FSC’), which had been introduced to tackle rising fuel costs;

– the security surcharge (‘SSC’), which had been introduced to address the costs of certain security measures imposed following the terrorist attacks of 11 September 2001.

6 On 14 and 15 February 2006, the Commission carried out unannounced inspections at the premises of a number of carriers pursuant to Article 20 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1).

7 Following the inspections, a number of carriers, including the applicant, made an application under the 2002 notice referred to in paragraph 5 above.

8 On 19 December 2007, after sending a number of requests for information, the Commission addressed a statement of objections to 27 carriers, including the applicant (‘the Statement of Objections’). It stated that those carriers had infringed Article 101 TFEU, Article 53 of the Agreement on the European Economic Area (EEA) and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (‘the EC-Switzerland Air Transport Agreement’) by participating in a cartel relating, in particular, to the FSC, the SSC and a refusal to pay commission on surcharges (‘the refusal to pay commission’).

9 In response to the Statement of Objections, the addressees submitted written observations.

10 An oral hearing was held from 30 June to 4 July 2008.

B. The Decision of 9 November 2010

11 On 9 November 2010, the Commission adopted Decision C(2010) 7694 final relating to a proceeding under Article 101 [TFEU], Article 53 of the EEA Agreement and Article 8 of the [EC-Switzerland Air Transport Agreement] (Case COMP/39258 – Airfreight) (‘the Decision of 9 November 2010’). That decision is addressed to 21 carriers (‘the carriers incriminated in the Decision of 9 November 2010’), namely:

– Air Canada;

– Air France-KLM (‘AF-KLM’);

– Société Air France (‘AF’);

– Koninklijke Luchtvaart Maatschappij NV (‘KLM’);

– British Airways plc;

– Cargolux Airlines International SA (‘Cargolux’);

– Cathay Pacific Airways Ltd (‘CPA’);

– Japan Airlines Corp.;

– the applicant;

– Lan Airlines SA (‘Lan’);

– Lan Cargo SA;

– Lufthansa Cargo;

– Lufthansa;

– Swiss;

– Martinair Holland NV (‘Martinair’);

– Qantas Airways Ltd (‘Qantas’);

– SAS AB;

– SAS Cargo;

– Scandinavian Airlines System Denmark-Norway-Sweden (‘SAS Consortium’);

– SAC;

– Singapore Airlines Ltd (‘SIA’).

12 The objections raised provisionally against the other addressees of the Statement of Objections were abandoned (‘the non-incriminated carriers’).

13 The grounds of the Decision of 9 November 2010 described a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement, covering the territory of the EEA and of Switzerland, by which the carriers incriminated in the Decision of 9 November 2010 had coordinated their behaviour as regards the pricing of freight services.

14 The operative part of the Decision of 9 November 2010, in so far as it related to the applicant, read as follows:

‘Article 2

The following undertakings infringed Article 101 of the TFEU by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports within the European Union and airports outside the EEA, for the following periods:

…

h) [Japan Airlines Corp.] from 1 May 2004 until 14 February 2006;

i) [the applicant] from 1 May 2004 until 14 February 2006;

…

Article 3

The following undertakings infringed Article 53 of the EEA Agreement by participating in an infringement that comprised both agreements and concerted practices through which they coordinated various elements of price to be charged for [freight] services on routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and third countries, for the following periods:

…

h) [Japan Airlines Corp.] from 19 May 2005 until 14 February 2006;

i) [the applicant] from 19 May 2005 until 14 February 2006;

…

Article 5

For the infringements referred to in Articles 1 to 4 [of the Decision of 9 November 2010], the following fines are imposed:

…

h) [Japan Airlines Corp.] and [the applicant] jointly and severally: EUR 35 700 000;

…

Article 6

The undertakings listed in Articles 1 to 4 shall immediately bring to an end the infringements referred to in those Articles, insofar as they have not already done so.

They shall refrain from repeating any act or conduct described in Articles 1 to 4, and from any act or conduct having the same or similar object or effect.’

C. Action challenging the Decision of 9 November 2010 before the Court

15 By application lodged at the Court Registry on 24 January 2011, the applicant brought an action seeking the annulment of the Decision of 9 November 2010, in so far as that decision concerned it and, in the alternative, a reduction in the fine imposed on it and on Japan Airlines Corp. The other carriers incriminated in the Decision of 9 November 2010, with the exception of Qantas, also brought actions against that decision before the Court.

16 By judgments of 16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994), Koninklijke Luchtvaart Maatschappij v Commission (T‑28/11, not published...