Opinion of Advocate General Rantos delivered on 5 September 2024.

• Jurisdiction: European Union
• Celex Number: 62022CC0367
• ECLI: ECLI:EU:C:2024:702
• Date: 05 September 2024
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 5 September 2024 (1)

Cases C‑367/22 P, C‑369/22 P, C‑370/22 P, C‑375/22 P, C‑378/22 P, C‑379/22 P, C‑380/22 P, C‑381/22 P, C‑382/22 P, C‑385/22 P, C‑386/22 P, C‑401/22 P and C‑403/22 P

Air Canada (C‑367/22 P), Air France (C‑369/22 P), Air France-KLM (C‑370/22 P), LATAM Airlines Group and Lan Cargo (C‑375/22 P), British Airways (C‑378/22 P), Singapore Airlines and Singapore Airlines Cargo (C‑379/22 P), Deutsche Lufthansa and Others (C‑380/22 P), Japan Airlines (C‑381/22 P), Cathay Pacific Airways (C‑382/22 P), Koninklijke Luchtvaart Maatschappij (C‑385/22 P), Martinair Holland (C‑386/22 P), Cargolux Airlines (C‑401/22 P) and SAS Cargo Group and Others (C‑403/22 P)

v

European Commission

( Appeal – Competition – Agreements, decisions and concerted practices – European market for airfreight – Article 101(1) TFEU and Article 53 of the EEA Agreement – Coordination on elements of the prices of airfreight services – Fuel surcharge, security surcharge and refusal to pay commissions on surcharges – Single and continuous infringement – Jurisdiction of the Commission – ‘Qualified effects’ test – Partial annulment of the decision at issue – Evidence of participation in the infringement – Principle of equal treatment – Limitation period in respect of the Commission’s power to impose penalties – Fines – Unlimited jurisdiction )

Table of contents

I. Introduction

II. Background to the dispute

A. The cartel at issue

B. Procedure before the Commission and the decision at issue

C. Procedure before the General Court and the judgments under appeal

III. Procedure before the Court of Justice and forms of order sought

IV. Analysis

A. The grounds relating to the Commission’s lack of jurisdiction to find and penalise an infringement of Article 101(1) TFEU and Article 53 of the EEA Agreement concerning inbound freight services

1. The Commission’s jurisdiction to find and penalise an infringement concerning inbound freight services solely on the basis of the ‘qualified effects’ test

2. The application of the ‘qualified effects’ test

(a) The examination of the qualified effects of the coordination in relation to inbound freight services considered in isolation

(1) The criterion of a restriction of competition by object as an irrelevant criterion

(2) The demonstration that qualified effects exist

(i) The relevant standard of proof

(ii) The existence of qualified effects in the present case

– The immediacy of the effects

– The substantial nature of the effects

– The foreseeability of the effects

(b) The use of the concept of a ‘single and continuous infringement’ taken as a whole

(1) The relevance of the examination of the qualified effects of the coordination in relation to inbound freight services having regard to the single and continuous infringement as a whole

(2) The demonstration of the effects of the single and continuous infringement taken as a whole

(3) The use of the concept of a ‘world-wide cartel’

3. Certain procedural defects in the judgments under appeal

(a) The substitution of grounds

(b) Infringement of the rights of the defence

(c) The reversal of the burden of proof

B. The grounds relating to the merits of the decision at issue

1. The participation in the single and continuous infringement

(a) Air Canada’s liability for non-relevant routes

(b) The breach of the principle of equal treatment in relation to Cargolux

(c) The liability of Cargolux in relation to the security surcharge

(d) Errors in the assessment of the evidence as regards Cathay Pacific Airways

2. The annulment (only) in part of the decision at issue in relation to LATAM Airlines Group and Lan Cargo

3. The limitation period in respect of the Commission’s power to impose penalties in relation to Air Canada and Singapore Airlines

C. The General Court’s exercise of unlimited jurisdiction in relation to SAS Cargo Group

1. The right to be heard and the adversarial principle

2. The obligation to state reasons

3. The principle ne ultra petita

4. The presumption of innocence and the principle of equal treatment

V. Conclusion

I. Introduction

1. This Opinion concerns a series of 13 appeals lodged by airlines (‘the appellants’) (2) against judgments of the General Court of the European Union of 30 March 2022 (‘the judgments under appeal’) (3) for annulment of the European Commission Decision of 17 March 2017 (‘the decision at issue’) (4) relating to a cartel in the form of a single and continuous infringement on the market for airfreight (‘the cartel at issue’).

2. The cartel at issue, implemented in its entirety over the period from 7 December 1999 to 14 February 2006, was penalised by the Commission on the basis of 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’) and concerns the freight services provided on the following routes: between airports within the EEA (‘intra-EEA routes’), between airports within the European Union and airports located outside the EEA (‘EU-third country routes’), between airports located in countries that are Contracting Parties to the EEA Agreement but not EU Member States and airports located in third countries (‘non-EU EEA-third country routes’ and, together with EU-third country routes, ‘EEA-third country routes’) and between airports within the European Union and Swiss airports (‘EU-Switzerland routes’).

3. This Opinion, which is focused on various grounds of appeal, primarily concerns the jurisdiction of the Commission to find and penalise a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement in relation to the freight services on routes from third countries to the EEA (‘inbound routes’ and ‘inbound freight services’) and, more specifically, the application of the ‘qualified effects’ test on the territory of the EEA to agreements implemented outside the EEA. The main issues raised by those appeals concern:

– the question whether the ‘qualified effects’ test is sufficient to substantiate the jurisdiction of the Commission to find and penalise an infringement of Article 101(1) TFEU and Article 53 of the EEA Agreement with regard to inbound freight services, as well as the standard of proof required in that regard and the application of that test in the present case, in particular in the light of the judgment of 6 September 2017, Intel v Commission; (5)

– the issue of whether the concept of a ‘single and continuous infringement’ requires, implicitly, that each constituent element of that infringement, examined individually, can constitute an infringement of Article 101 TFEU and Article 53 of the EEA Agreement, and whether that concept is relevant in assessing the jurisdiction of the Commission to find and penalise an infringement of those provisions with regard to inbound freight services, in particular in the light of the judgment of 16 June 2022, Sony Corporation and Sony Electronics v Commission. (6)

II. Background to the dispute

4. As far as is relevant for the purposes of this Opinion, the facts and the legal context of the cases forming the subject matter of the appeals, as set out in the decision at issue and the judgments under appeal, can be summarised as follows.

A. The cartel at issue

5. In the freight sector, airlines provide for the carriage of cargo by air (‘the carriers’) and, as a general rule, such carriage occurs on a market operating on different levels: upstream, carriers supply their freight services to freight forwarders, in return for a price consisting, on the one hand, of rates calculated on a per-kilogram basis and, on the other hand, of surcharges intended to cover certain costs; downstream, the freight forwarders arrange the transport of that cargo on behalf of shippers. In order to be able to serve all major cargo destinations in the world with sufficient frequency, the carriers developed a system of agreements, including in the context of broader alliances between carriers.

6. The cartel at issue concerns the following three elements: the introduction and administration of a surcharge intended to tackle the increase in the cost of fuel (‘the fuel surcharge’) (7) and a surcharge intended to address the costs of certain security measures adopted following the terrorist attacks of 11 September 2001 (‘the security surcharge’), (8) as well as the refusal to pay commission on the surcharges (‘the refusal to pay commission’). (9)

B. Procedure before the Commission and the decision at issue

7. On completion of an investigation opened in 2005, (10) and further to a statement of objections adopted on 19 December 2007 (‘the statement of objections’), (11) the Commission adopted, on 9 November 2010, a first decision (‘the 2010 decision’) (12) in which it found there to be 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 concerning, inter alia, the fuel surcharge, the security surcharge and the refusal to pay commission. (13)

8. The General Court having annulled the 2010 decision, in whole or in part, by judgments of 16 December 2015, (14) on account of defective statements of reasons, the Commission resumed the procedure and adopted the decision at issue, on 17 March 2017, in respect of 19 carriers (‘the incriminated carriers’), amongst them the appellants. (15) In that decision, the Commission found there to be 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, by which those carriers had coordinated their behaviour as regards the pricing for the provision of freight services worldwide through the fuel surcharge, the security surcharge and the refusal to pay commission.

9. In the first place, the Commission...