Judgment of the General Court Fourth Chamber, Extended Composition of 30 March 2022, British Airways v Commission, T-341/17

• Date: 30 March 2022
• Year: 2022

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Judgment of the General Court (Fourth Chamber, Extended Composition) of 30 March

2022, British Airways v Commission, T-341/17

Link to the complete text of the judgment

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 air freight services (fuel surcharge, s ecurity surcharge, payment of commission on

surcharges) – Exchange of information – Territorial jurisdiction of the Commission – Obligation to state

reasons – Article 266 TFEU – State coercion – Single and continuous infringement – Amount of the fine –

Value of sales – Duration of participation in the infringement – Mitigating circumstances – Encouragement

of anticompetitive conduct by public authorities – Unlimited jurisdiction

The applicant, British Airways plc, is an air transport company operating in the market for airfreight.

It is one of the 19 addressees 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) (‘the contested decision’). By that decision, the European Commission found that there had

been a single and continuous infringement of those provisions whereby the undertakings in question

had coordinated, during periods between 1999 and 2006, their pricing behaviour in the provision of

freight services on a global basis. It imposed a fine of EUR 104 040 000 on the applicant for its

participation in that infringement.

On 7 December 2005, the Commission received, under its 2002 Leniency Notice,

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an application for

immunity lodged by Lufthansa and two of its subsidiaries. That application mentioned that there were

anticompetitive contacts between a number of undertakings operating on the airfreight market (‘the

carriers’) with respect to various elements forming part of the prices charged for services on that

market, namely the imposition of ‘fuel’ and ‘security’ surcharges and, in essence, the refusal to grant

freight forwarders a discount on those surcharges. The evidence gathered by the Commission and its

investigations led it to address, on 19 December 2007, a statement of objections to 27 carriers and

subsequently to adopt, on 9 November 2010, against 21 carriers including the applicant, an initial

decision.

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However, that decision was annulled by the General Court by judgments of 16 December

2015,

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within the limit of the respective claims for annulment to that end, on account of

contradictions vitiating the statement of reasons for that decision.

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Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).

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Commission Decision C(2010) 7694 final of 9 November 2010 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

COMP/39258 – Airfreight) (‘the initial decision’).

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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, EU:T:2015:995), Japan Airlines v Commission (T-36/11, not published, EU:T:2015:992), Cathay Pacific

Airways v Commission (T-38/11, not published, EU:T:2015:985), Cargolux Airlines v Commission (T-39/11, not published, EU:T:2015:991), Latam

Airlines Group and Lan Cargo v Commission (T-40/11, not published, EU:T:2015:986), Singapore Airlines and Singapore Airlines Cargo Pte v

Commission (T-43/11, not published, EU:T:2015:989), Deutsche Lufthansa and Others v Commission (T-46/11, not published, EU:T:2015:987),

British Airways v Commission (T-48/11, not published, EU:T:2015:988), SAS Cargo Group and Others v Commission (T-56/11, not published,

EU:T:2015:990), Air France-KLM v Commission (T-62/11, not published, EU:T:2015:996), Air France v Commission (T-63/11, not published,

EU:T:2015:993), and Martinair Holland v Commission (T-67/11, not published, EU:T:2015:984).