SAS Cargo Group and Others v Commission (Judgment) [2015] EUECJ T-56/11 (16 December 2015)

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(Competition — Agreements, decisions and concerted practices — European airfreight market — Agreements and concerted practices in respect of several elements of the pricing of airfreight services (imposition of fuel and security surcharges, refusal to pay commission on surcharges) — Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and Switzerland on Air Transport — Obligation to state reasons)

Scandinavian Airlines System Denmark-Norway-Sweden, established in Stockholm (Sweden),

represented initially by M. Kofmann, B. Creve, lawyers, I. Forrester QC, J. Killick and G. Forwood, Barristers, and subsequently by M. Kofmann, B. Creve, J. Killick and G. Forwood,

European Commission, represented initially by N. von Lingen, V. Bottka and S. Noë, and subsequently by V. Bottka and A. Dawes, acting as Agents, and by B. Doherty, Barrister,

Council of the European Union, represented by F. Florindo Gijón and M. Simm, acting as Agents,

APPLICATION for annulment of 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),

composed of H. Kanninen (Rapporteur), President, I. Pelikánová and E. Buttigieg, Judges,

having regard to the written procedure and further to the hearing on 21 May 2015,

1 The applicants, SAS Cargo Group A/S (‘SAS Cargo’), Scandinavian Airlines System Denmark-Norway-Sweden (‘Scandinavian Airlines’) and SAS AB, operate in the airfreight (‘freight’) market.

2 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, ‘the 2002 Leniency Notice’) lodged by Deutsche Lufthansa AG (‘Lufthansa’) and its subsidiaries, Lufthansa Cargo AG and Swiss International Air Lines AG (‘Swiss’). According to that application, anticompetitive contacts existed between a number of undertakings operating in the freight market (‘the carriers’) with respect, inter alia, to:

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

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

3 On 14 and 15 February 2006, the Commission carried out unannounced inspections 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 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1).

4 Following the inspections, a number of carriers, including SAS Cargo and Scandinavian Airlines, made an application under the 2002 Leniency Notice.

5 On 19 December 2007, the Commission addressed a statement of objections to 27 carriers, including the applicants (‘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 Swiss Agreement’) by participating in a worldwide cartel relating, inter alia, to the FSC, the SSC and a refusal to pay commission on surcharges (‘the refusal to pay commission’). The addressees of that statement of objections submitted written observations in reply. An oral hearing was held from 30 June to 4 July 2008.

6 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 Swiss Agreement (Case COMP/39258 — Airfreight) (‘the contested decision’). The contested decision was addressed to the following 21 carriers (‘the carriers at issue’):

7 The objections raised provisionally against the other addressees of the statement of objections were withdrawn.

8 The grounds of the contested decision describe a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Swiss Agreement, covering the EEA territory and Switzerland, by which the carriers at issue coordinated their behaviour as regards the pricing of freight services.

9 The operative part of the contested decision, in so far as it relates to the applicants, reads as follows:

The following undertakings infringed Article 101 of the TFEU and 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 airfreight services on routes between airports within the EEA, for the following periods:

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 airfreight services on routes between airports within the European Union and airports outside the EEA, for the following periods:

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 airfreight 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:

The following undertakings infringed Article 8 of the [Swiss] 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 airfreight services on routes between airports within the European Union and airports in Switzerland, for the following periods:

For the infringements referred to in Articles 1 to 4, the following fines are imposed:

(p) [SAS Cargo] and [Scandinavian Airlines] jointly and severally: EUR 4 254 250;

(q) [SAS Cargo], [Scandinavian Airlines] and SAS … jointly and severally: EUR 5 265 750;

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.

10 By application lodged at the Court Registry on 25 January 2011, the applicants brought the present action. The Commission lodged its defence on 1 June 2011.

11 By document lodged at the Court Registry on 13 April 2011, the Council of the European Union applied for leave to intervene in support of the form of order sought by the Commission. By order of 25 July 2011, the President of the Sixth Chamber of the Court granted that application.

12 The Council lodged its statement in intervention on 27 September 2011. On 22 November 2011, the applicants submitted their observations on the statement in intervention. On 25 November 2011, the Commission indicated that it would not lodge observations on that statement.

13 By decision of 24 June 2011, the Court decided, in accordance with Article 47(1) of its Rules of Procedure of 2 May 1991, not to allow a second exchange of pleadings. Consequently, the applicants’ subsequent application for a second exchange of pleadings, dated 11 July 2011, was rejected.

14 On 30 May 2011, the applicants lodged with the Court a letter in which they put forward additional arguments in support of the request which they had made in the application for the adoption of a measure of organisation of procedure or a measure of inquiry ordering the Commission to provide them with access to evidence which it had received after notification of the statement of objections. On 21 June 2011, the Commission submitted its observations on that letter and contended that the applicants’ request should be dismissed. On 5 July 2011, the applicants sent the Court a letter containing their comments on the Commission’s observations.

15 By decision of the President of the Court of 28 November 2011, one of the judges of the Sixth Chamber of the Court, to which the Judge-Rapporteur was assigned, was replaced by another judge.

16 By letter lodged at the Court Registry on 24 January 2012, the applicants requested that, by way of measures of organisation of procedure, the Court enjoin the Commission to produce a series of documents which, according to the applicants, had a bearing on the assessment of the evidence to which it referred in the contested decision. In the applicants’ view, the documents requested were necessary to support, inter alia, their argument that the Commission had infringed their rights of defence by failing to make available to them inculpatory and exculpatory evidence. In the same letter, the applicants requested the Court to place on the file in the present case certain documents which they had produced in support of their request for measures of organisation of procedure. The letter and the documents produced by the applicants were placed on the case file. The Commission and the Council submitted their observations on that letter and those documents on 30 and 23 March 2012 respectively.

17 By decision of the President of the Court of 30 November 2012, the Judge-Rapporteur was replaced by another judge and the present case was assigned to a new Judge-Rapporteur sitting in the Sixth Chamber.

18 Following a request by the Court in the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of 2 May 1991, the applicants submitted, by document lodged at the Court Registry on 25 June 2013, observations on the defence. By document lodged at the Court Registry on 27 September 2013, the Commission submitted observations on those observations.

19 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the First Chamber, to which the present case was, accordingly, allocated on 23 September 2013.

20 Upon hearing the report of the Judge-Rapporteur, the Court (First Chamber) decided to open the oral procedure. In addition, in the context of the measures of organisation of procedure provided for in Article 64 of its Rules of Procedure of 2 May 1991, the Court put written questions to the parties, which replied within the prescribed period. In their response, the applicants withdrew the sixth plea in law of the action.

21 By letter of 14 April 2015, the Council informed the Court that it would not be attending the hearing.

22 On 29 April 2015, the Court requested the applicants to inform it if the report for the hearing contained information that was confidential vis-à-vis the public. By two letters of 6 May 2015, the applicants requested that certain information in the report for the hearing not be made public and submitted some observations on the report for the hearing, of which the Court took note.

23 On 11 May 2015, the Commission submitted observations on the applicants’ request for confidential treatment, vis-à-vis the public, of the report for the hearing.

24 At the hearing on 21 May 2015, the applicants and the Commission presented oral argument and answered the questions put by the Court.

– declare that the applicants bear no liability for the global single, continuous and complex infringement as described in the contested decision and, if necessary, annul that decision to the extent that it finds the applicants liable;

– further, or in the alternative, reduce the amount of the fine imposed on them;

– make such other order as may be appropriate in the circumstances of the case.

29 In support of their action, the applicants invoke five pleas in law, alleging (i) infringement of essential procedural requirements, the principle of sound administration, the rights of the defence and the principle of equality of arms, in connection with access to the file, (ii) a lack of competence to apply Article 101 TFEU and Article 53 of the EEA Agreement to conduct adopted outside the EEA, (iii) a manifest error of assessment in that the Commission concluded that they participated in the single and continuous infringement described in the contested decision, (iv) that the fine imposed on them is unjustified and disproportionate, and (v) selective and arbitrary prosecution.

30 Moreover, in their response to the measure of organisation of procedure referred to in paragraph 20 above, and at the hearing, the applicants claimed that there were several contradictions between the operative part and the grounds of the contested decision. First, the operative part of that decision finds the existence of several infringements, as is demonstrated by Articles 1 to 4 of that decision and Article 5 of that decision which mentions infringements in the plural, whereas the grounds of the decision at issue clearly describe a single and continuous worldwide infringement, committed between 7 December 1999 and 14 February 2006. Secondly, that operative part finds that only some carriers participated in each of the four infringements, whereas those grounds state that all the carriers at issue are fully liable for one single and continuous infringement. Thirdly, the applicants submit that the description, in those grounds, of conduct predating 1 May 2004 concerning routes between airports within the European Union and airports outside the EEA is in conflict with Article 1 of the contested decision, which clearly limits the infringement, as regards those routes, to conduct that occurred after 1 May 2004.

31 In the light of those contradictions, the applicants claim that the contested decision must be annulled in its entirety. In that regard, they state, first of all, that those contradictions are a new manifestation of the arbitrary and selective nature of the prosecutions conducted by the Commission in the present case, as they indeed submitted in their fifth plea in law. The applicants then claim that the failure to provide any explanation for those contradictions contravenes the obligation to state reasons provided for in Article 296 TFEU. The applicants add that it is only in the defence that the Commission explained that it was imposing a fine on Air Canada only as from 1 May 2004 on the ground that Air Canada did not operate routes between airports within the EEA or routes between airports within the European Union and airports in Switzerland. Likewise, that decision does not provide any explanation regarding the fact that certain other carriers were not held liable in relation to routes between airports within the EEA. In addition, the applicants state that that decision does not explain why the contacts of December 1999 may constitute evidence of an infringement of competition law for some carriers and not for others. Furthermore, the applicants claim that the existence of four infringements, with a different number of carriers referred to, affects their legal situation, in so far as it will be more difficult for them to share liability for the loss suffered by customers with other carriers which in actual fact participated in the same conduct. In that context, the applicants also submit that the failure to state reasons prevents the Court from exercising an effective judicial review of that decision and national courts from giving an appropriate ruling on actions for damages. Moreover, the applicants observe that the statement of objections does not describe the four infringements which are finally found in the operative part of the contested decision, which amounts to an infringement of their right to be heard. According to the applicants, the infringement of the obligation to state reasons and the infringement of the right to be heard constitute grounds involving matters of public policy which must be raised by the EU judicature of its own motion. Consequently, the applicants take the view that the annulment in full of the contested decision amounts to the most appropriate sanction. Failing that, they suggest a significant reduction in the amount of the fine which was imposed on them.

32 At the hearing, the applicants explained that the fact that they are considered to have participated in a worldwide cartel means that they must deal with actions for damages brought before courts of very many Member States, such as, for example, the action brought by a Colombian flower producer. The applicants added that national courts will have to take account of the operative part of the contested decision and that the lack of reference, in the operative part, to certain carriers at issue would prevent them from obtaining the contribution of those carriers.

33 By those arguments, the applicants argue, in essence, that the contested decision is vitiated by a failure to state reasons, since the grounds and the operative part of that decision are contradictory, which the Commission disputes.

34 In that regard, it should be noted that it has consistently been held that an absence of or inadequate statement of reasons constitutes an infringement of essential procedural requirements for the purposes of Article 263 TFEU and is a ground involving a matter of public policy which may, and even must, be raised by the EU judicature of its own motion (see judgment of 2 December 2009 in Commission v Ireland and Others, C‑89/08 P, ECR, EU:C:2009:742, paragraph 34 and the case-law cited).

35 According to equally settled case-law, the statement of reasons required by Article 296(2) TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights and the Court of the European Union to exercise its power of review (see, to that effect, judgments of 25 June 1998 in British Airways and Others v Commission, T‑371/94 and T‑394/94, ECR, EU:T:1998:140, paragraph 89, and 29 June 2012 in GDF Suez v Commission, T‑370/09, ECR, EU:T:2012:333, paragraph 117). The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see, to that effect, judgments of 2 April 1998 in Commission v Sytraval and Brink’s France, C‑367/95 P, ECR, EU:C:1998:154, paragraph 63, and 15 March 2000 in Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, ECR, EU:T:2000:77, paragraph 469).

36 It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, judgment in Commission v Sytraval and Brink’s France, cited in paragraph 33 above, EU:C:1998:154, paragraph 63, and judgment of 2 February 2012 in Denki Kagaku Kogyo and Denka Chemicals v Commission, T‑83/08, EU:T:2012:48, paragraph 91).

37 Nevertheless, in stating the reasons for a decision which it takes to enforce the rules on competition, the Commission is required under Article 296 TFEU to set out at least the facts and considerations having decisive importance in the context of the decision in order to make clear to the competent court and the persons concerned the circumstances in which it has applied EU law (see, to that effect, judgment in Denki Kagaku Kogyo and Denka Chemicals v Commission, cited in paragraph 36 above, EU:T:2012:48, paragraph 91).

38 In addition, the statement of the reasons must be logical and, in particular, contain no internal inconsistency that would prevent a proper understanding of the reasons underlying the measure (see, to that effect, judgments of 10 July 2008 in Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, ECR, EU:C:2008:392, paragraph 169, and 29 September 2011 in Elf Aquitaine v Commission, C‑521/09 P, ECR, EU:C:2011:620, paragraph 151).

39 It must be added that, notwithstanding Article 23(5) of Regulation No 1/2003, which states that decisions imposing fines for infringements of the competition rules are not of a criminal law nature, the infringement of Article 101(1) TFEU, of Article 53 of the EEA Agreement and of Article 8 of the Swiss Agreement involves engaging in conduct which is generally regarded as underhand, to the detriment of the public at large, and which entails a clear stigma and a potential fine, for the undertakings responsible, of up to 10% of annual turnover, which is undoubtedly severe (see the Opinion of Advocate General Sharpston in KME Germany and Others v Commission, C‑272/09 P, ECR, EU:C:2011:63, paragraph 64). Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties (see judgment of 27 March 2014 in Saint-Gobain Glass France and Others v Commission, T‑56/09 and T‑73/09, ECR, EU:T:2014:160, paragraph 78 and the case-law cited), those penalties pertain to criminal matters for the purpose of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), as can be seen, inter alia, from the judgment of the European Court of Human Rights in A. Menarini Diagnostics S.R.L. v. Italy (no. 43509/08, §§ 39 to 44, 27 September 2011).

40 Moreover, in paragraphs 58 and 59 of its judgment in A. Menarini Diagnostics S.R.L. v. Italy, cited in paragraph 39 above, the European Court of Human Rights noted that, if a ‘penalty’ is imposed by a decision of an administrative authority, the person concerned must have an opportunity to challenge any decision made against him before a tribunal that offers the guarantees provided for in Article 6 of the ECHR (see, to that effect, judgment of 18 July 2013 in Schindler Holding and Others v Commission, C‑501/11 P, ECR, EU:C:2013:522, paragraph 34).

41 The principle of effective judicial protection, a general principle of EU law which is now enshrined in Article 47 of the Charter of Fundamental Rights of the European Union and which corresponds, in EU law, to Article 6(1) of the ECHR (see judgment of 10 July 2014 in Telefónica and Telefónica de España v Commission, C‑295/12 P, ECR, EU:C:2014:2062, paragraph 57 and the case-law cited), requires that the operative part of a decision adopted by the Commission, finding infringements of the competition rules, must be particularly clear and precise and that the undertakings held liable and penalised must be in a position to understand and to contest that imputation of liability and the imposition of those penalties, as set out in the wording of that operative part.

42 It should be borne in mind that it is in the operative part of a decision that the Commission must indicate the nature and extent of the infringements which it penalises. In principle, as regards in particular the scope and nature of the infringements penalised, it is the operative part, and not the statement of reasons, which is important. Only where there is a lack of clarity in the terms used in the operative part should reference be made, for the purposes of interpretation, to the statement of reasons contained in a decision. As the European Union Courts have held, for the purpose of determining the persons to whom a decision finding an infringement applies, only the operative part of the decision must be considered, provided that it is not open to more than one interpretation (judgments of 16 December 1975 in Suiker Unie and Others v Commission, 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, ECR, EU:C:1975:174, paragraph 315, and 11 December 2003 in Adriatica di Navigazione v Commission, T‑61/99, ECR, EU:T:2003:335, paragraph 43).

43 Moreover, it should also be borne in mind that Article 101(1) TFEU produces direct effects in relations between individuals and creates rights for individuals with the result that it must be open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition. National courts whose task it is to apply that provision in areas within their jurisdiction must therefore ensure that those rules take full effect and must protect the rights which they confer on individuals (judgment of 6 June 2013 in Donau Chemie and Others, C‑536/11, ECR, EU:C:2013:366, paragraphs 21 and 22). It follows that any person can claim compensation for the harm suffered where there is a causal relationship between that harm and an agreement or practice prohibited under Article 101(1) TFEU (judgments of 13 July 2006 in Manfredi and Others, C‑295/04 to C‑298/04, ECR, EU:C:2006:461, paragraph 61, and 6 November 2012 in Otis and Others, C‑199/11, ECR, EU:C:2012:684, paragraph 43).

44 In accordance with Article 16(1) of Regulation No 1/2003, when national courts rule on agreements, decisions or practices under Article 101 TFEU which are already the subject of a Commission decision, they cannot take decisions running counter to that decision.

45 In that respect, contrary to what the Commission essentially observed at the hearing, it must be considered that a national court would take a decision contrary to that adopted by the Commission not only if it gave a different legal classification to the anticompetitive conduct examined, but also if its decision differed from that of the Commission as regards the temporal or geographic scope of the conduct examined or as regards the liability or non-liability of persons investigated in relation to the conduct at issue and whose liability was examined in the Commission’s decision.

46 The national courts are therefore bound by the decision adopted by the Commission, provided that it has not been annulled or invalidated, and consequently the meaning of the operative part of that decision must be unambiguous.

47 In particular, as the applicants noted, clear wording of the operative part of a decision finding an infringement of the competition rules must allow the national courts to understand the scope of that infringement and to identify the persons liable, in order to be able to draw the necessary inferences as regards claims for damages brought by persons harmed by that infringement.

48 Lastly, it must be noted that the full effectiveness of Article 101 TFEU would be undermined if a person’s right to claim compensation from another person for harm suffered depended, unconditionally, on the existence of a contractual link between those two persons (see, to that effect, judgment of 5 June 2014 in Kone and Others, C‑557/12, ECR, EU:C:2014:1317, paragraph 33). It cannot therefore be ruled out that a person held liable for an infringement of the competition rules found by the Commission may be required to pay compensation for the damage caused to customers of other persons held liable for the same infringement. In such a case, and where provided for by national law, indemnity proceedings between those parties may be brought before the national courts. In that context, the wording of the operative part of a decision finding an infringement of the competition rules is evidently decisive, since it is such as to establish mutual rights and obligations of the persons concerned.

49 The national court may also, if provided for by national law, be required to find that all of the persons held liable for the infringement of the competition rules found by the Commission must jointly and severally make good the damage caused. In that case, the wording of the operative part of a decision finding an infringement of the competition rules may also be decisive as regards the persons concerned.

50 In the light of the foregoing, the Court must therefore establish, even before examining, if necessary, the pleas in law put forward by the applicants, whether, as the applicants essentially submit in their response to the measure of organisation of procedure referred to in paragraph 20 above, there is a contradiction between the grounds and the operative part of the contested decision.

51 Articles 1 to 4 of the operative part of the contested decision are worded as follows:

52 It must be pointed out, first of all, that, as the Commission stated, inter alia, in its reply to the measures of organisation of procedure referred to in paragraph 20 above, the division of the operative part of a decision finding infringements of the competition rules into four separate articles does not necessarily imply the existence of four separate infringements.

53 That division could be a reflection of the fact that the complex of instances of anticompetitive conduct comprising the single and continuous infringement described in the contested decision infringed three different provisions prohibiting that conduct which have different territorial and temporal scopes.

54 Indeed, the Commission indicated, in paragraphs 815 to 817 of the contested decision and in its written submissions to the Court, that, until 1 May 2004, it had implementing powers to apply Article 101 TFEU only with respect to international air transport between Community airports and therefore could not apply Article 101 TFEU to anticompetitive agreements and practices concerning routes between airports within the European Union and airports outside the EEA. Moreover, it explained, in recitals 818 to 821 of the contested decision, that, until 19 May 2005, it was competent to apply Article 53 of the EEA Agreement only to air transport between airports within the EEA and that it was only as from that date that it became competent to apply that provision as regards routes between airports in countries which are contracting parties to the EEA Agreement but which are not Member States and airports in third countries. Furthermore, it can be seen from recitals 822 to 825 of the contested decision that the Commission considered that it was competent to apply Article 8 of the Swiss Agreement to routes between airports in the European Union and airports in Switzerland as from 1 June 2002.

55 Accordingly, as the Commission indicated in its reply mentioned in paragraph 20 above, the infringement of the three provisions, namely Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Swiss Agreement — each of which set out the Commission’s competence as regards their application ratione temporis and ratione loci — led it to divide the operative part of the contested decision into seven articles, the first four of which are organised as follows:

– Article 1 concerns the Commission’s competence to apply Article 101 TFEU and Article 53 of the EEA Agreement as regards routes between airports within the EEA, for the period from 7 December 1999 to 14 February 2006;

– Article 2 concerns the Commission’s competence to apply Article 101 TFEU as regards routes between airports within the European Union and airports outside the EEA, for the period from 1 May 2004 to 14 February 2006;

– Article 3 concerns the Commission’s competence to apply Article 53 of the EEA Agreement as regards routes between airports in countries which are contracting parties to the EEA Agreement but which are not Member States and airports in third countries, for the period from 19 May 2005 to 14 February 2006;

– Article 4 concerns the Commission’s competence to apply Article 8 of the Swiss Agreement as regards routes between airports within the European Union and airports in Switzerland, for the period from 1 June 2002 to 14 February 2006.

56 The applicants do not dispute that the scope of the Commission’s competence varied depending on the routes concerned, or that the division of the operative part of the contested decision is related to the variable scope of the Commission’s competence.

57 However, the applicants submit, in essence, that, according to the grounds of the contested decision, all of the carriers at issue participated in the anticompetitive conduct comprising the single and continuous worldwide infringement, irrespective of the routes operated, and that Articles 1 to 4 of that decision find four separate infringements, each concerning a different category of routes, in which only some of the carriers at issue participated.

58 In that regard, it is apparent from the contested decision that only 11 of the 21 carriers at issue, namely Air France-KLM, Air France, KLM, British Airways, Cargolux, Lufthansa, Lufthansa Cargo, Swiss, Martinair, SAS and SAS Cargo, are mentioned in each of the first four articles. Air Canada, CPA, Japan Airlines Corp., Japan Airlines, Qantas, SAC and Singapore Airlines are mentioned in both Article 2 and Article 3 of the contested decision. Scandinavian Airlines is mentioned in both Article 1 and Article 4. LAN and LAN Cargo are mentioned only in Article 2.

59 It should be noted that the period from 1 May 2004 to 14 February 2006, during which the carriers mentioned in Article 2 of the contested decision are stated to have participated in the anticompetitive conduct, and the period from 19 May 2005 to 14 February 2006, during which the carriers mentioned in Article 3 are stated to have participated in that conduct, are entirely covered by the period referred to in Article 1 of the contested decision, from 7 December 1999 to 14 February 2006, and the period referred to in Article 4 of the contested decision, from 1 June 2002 to 14 February 2006, as can be seen from paragraph 51 above.

60 Consequently, if the anticompetitive conduct was regarded as comprising a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Swiss Agreement, concerning all the routes covered by the cartel, and in which all of the carriers at issue participated, the carriers mentioned in Article 2 of the contested decision should also be included in Articles 1 and 4 of that decision. Moreover, all of the carriers which, according to Article 2 of the contested decision, participated in the conduct referred to in that article for a period that extended beyond 19 May 2005 should also be included in Article 3 of that decision.

61 Thus, the first four articles of the contested decision cannot be interpreted as supporting the hypothesis of a single and continuous infringement in relation to all the routes covered by the cartel and in which all of the carriers at issue participated. Rather, given that several of the carriers at issue are not mentioned in Articles 1, 3 and 4 of the contested decision, the first four articles of that decision must necessarily be interpreted as meaning either:

– that the operative part of the contested decision finds four separate single and continuous infringements, each concerning a different category of routes, which might also explain the use of the word ‘infringements,’ in the plural, in Articles 5 and 6 of that decision, as cited in paragraph 9 above; or

– that the operative part of the contested decision finds one single and continuous infringement, liability for which is attributed only to the carriers which — as regards the routes mentioned in each of the first four articles of the contested decision — participated directly in the unlawful conduct referred to in each of those articles or were aware of collusion regarding those routes and accepted the risk.

62 The latter interpretation may be explained by the fact the Commission is not entitled to attribute liability to an undertaking which participated directly in one or more of the aspects of anticompetitive conduct comprising a single and continuous infringement for the unlawful conduct planned or put into effect by the other participants in which it did not directly participate, unless it has been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel and that it was aware of all the other conduct in pursuit of the same objectives or that it could reasonably have foreseen that conduct and was prepared to take the risk (see, to that effect, judgment of 6 December 2012 in Commission v Verhuizingen Coppens, C‑441/11 P, ECR, EU:C:2012:778, paragraph 44).

63 However, as the parties themselves point out, it is apparent from an overall reading of the grounds of the contested decision and, in particular, of recitals 1, 95 to 97, 100, 101, 855, 856 and 864 to 879 of that decision that the Commission describes a single cartel, constituting a single and continuous infringement of Article 101 TFEU, of Article 53 of the EEA Agreement and of Article 8 of the Swiss Agreement in relation to all of the routes covered by the cartel and in which all of the carriers at issue participated. Those carriers, in the context of a single overall plan and by means of a single network of bilateral and multilateral contacts, allegedly coordinated their behaviour in relation to the development of the FSC and the SSC and the refusal to pay commission. That coordination is said to have taken place at a worldwide level and therefore affected simultaneously all the routes referred to in the contested decision.

64 In recital 892 of the contested decision, the Commission even emphasised that the cartel described in paragraph 63 above constituted a single infringement and that, in the circumstances, it would be ‘artificial to split up’ the anticompetitive conduct comprising the single and continuous infringement into separate infringements.

65 There is therefore a contradiction between the grounds of the contested decision, which describe a single and continuous infringement in relation to all of the routes covered by the cartel and in which all of the carriers at issue allegedly participated, and the operative part of that decision, which refers to either four separate single and continuous infringements or just one single and continuous infringement, liability for which is attributed only to the carriers which, as regards the routes mentioned in Articles 1 to 4 of the contested decision, participated directly in the unlawful conduct referred to in each of those articles or were aware of the collusion on those routes and accepted the risk.

66 That conclusion is not undermined by the Commission’s argument, put forward in the reply to the measures of organisation of procedure mentioned in paragraph 20 above, that the failure to mention some of the carriers at issue in Articles 1, 3 and 4 of the contested decision can be explained by the fact that those carriers did not operate the routes referred to in those articles, and that those articles need not be interpreted as referring to separate single and continuous infringements.

67 The Commission’s alternative interpretation of the operative part of the contested decision goes against the very idea of there being a single and continuous infringement composed of a complex of anticompetitive conduct for which all the participants are liable, irrespective of the routes concerned, as can be seen inter alia from the Commission’s observations in recitals 862 and 873 of the contested decision, which show that it wished to apply, in this case, the principles derived from the case-law according to which a person may be held liable for the participation of an undertaking in a single and continuous infringement even though it is established that the undertaking concerned participated directly only in one or some of the constituent elements of that infringement, if it is shown that it knew, or must have known, that the collusion in which it participated was part of an overall plan and that the overall plan included all the constituent elements of the infringement (judgments of 14 May 1998 in Buchmann v Commission, T‑295/94, ECR, EU:T:1998:88, paragraph 121, and 20 March 2002 in HFB and Others v Commission, T‑9/99, ECR, EU:T:2002:70, paragraph 231).

68 The alternative interpretation of the operative part of the contested decision proposed by the Commission also contradicts certain assertions which it made in that decision, such as the statement in recital 881, according to which, in order to find a single and continuous infringement, it was not necessary for the carriers to be ‘actual or potential competitors of all participants in the cartel or … actual or potential competitors on any specific route’, or the statement in recital 825, according to which it was not necessary to establish the existence of an infringement as regards a specific route, but rather it sufficed to adduce evidence of the existence of a worldwide cartel, ‘[a]ll the events described in Section 4 [of the contested decision] form[ing] part of the evidence of the worldwide cartel described in [that] Decision’.

69 It is therefore clear that the grounds of the contested decision describe a single and continuous infringement not only in relation to the three constituent elements of the infringement, namely the FSC, the SSC and the refusal to pay commission, but also in relation to all the routes operated by the carriers in question.

70 Accordingly, the Commission’s alternative interpretation of the operative part of the contested decision would also lead to a finding of a contradiction between the grounds and the operative part of that decision.

71 Next, it must be pointed out that, contrary to the Commission’s submission (see paragraph 66 above), the carriers mentioned in Articles 1 to 4 of the contested decision are held liable for the entirety of the infringement referred to in each article, and no distinction is made, in each article, between the routes which were operated by those carriers during the infringement period and those which were not.

72 In short, reading the operative part of the contested decision in the manner proposed by the Commission results in an operative part based on two contradictory lines of reasoning. On the one hand, a carrier mentioned in one of the first four articles of that decision is held liable for the anticompetitive conduct in which it participated, even if it did not operate all of the routes covered by the article in question. On the other hand, the same carrier, which is not mentioned in one of the other articles, avoids all liability for anticompetitive conduct in which it nevertheless allegedly participated if it did not operate any of the routes covered by that article.

73 In addition, it must be noted that, in its reply referred to in paragraph 20 above, the Commission justified the failure to mention some of the carriers at issue in Articles 1, 3 and 4 of the contested decision for the first time on the basis of a ‘discretion’ allowing it not to attribute liability to some participants in a worldwide cartel for all of the anticompetitive conduct comprising that cartel in which they nevertheless took part, provided that that approach is based on objective and non-discriminatory criteria, while acknowledging that the contested decision could have included all of the carriers in Articles 1, 3 and 4 thereof.

74 Not only has the Commission not explained the basis in law for that discretion, but it has also not explained how that discretion is compatible with its intention to apply the principles derived from the case-law cited in recitals 862 and 873 of the contested decision, as mentioned in paragraph 67 above.

75 Lastly, it must be noted that the grounds of the contested decision themselves are not entirely internally consistent. Indeed, those grounds contain assessments which are difficult to reconcile with the existence of a single cartel covering all of the routes referred to in the operative part, as described in the grounds (see paragraph 63 above).

76 In that respect, the Commission indicated in recital 1124 of the contested decision that it had taken — as the starting date of the participation of each of the carriers at issue in the infringement — the first anticompetitive contact in which each carrier had taken part, except in the case of certain carriers which, according to the Commission, were not to be held liable for the infringement as regards routes between airports in the EEA, namely Air Canada, CPA, Japan Airlines, LAN Cargo and SAC. For those carriers, the Commission took 1 May 2004 as the starting date of the infringement, even though it indicated at the same time that they had participated in the single infringement, described in paragraph 63 above, before that date. It justified the choice of that date on the basis that ‘it [was] only from 1 May 2004 that Regulation No 1/2003 became applicable to the relevant services and that an infringement [was] found in respect of [the carriers in question]’.

77 It has already been noted (see paragraph 67 above) that, in the grounds of the contested decision, the Commission specifically indicated that it was applying the principles derived from the case-law according to which, in the context of a single and continuous infringement, a person may be held liable for the participation of an undertaking in an infringement even though it is established that the undertaking concerned participated directly only in one or some of the constituent elements of that infringement, if it is shown that it knew, or must have known, that the collusion in which it participated was part of an overall plan that included all the constituent elements of the infringement.

78 Thus, although the grounds of the contested decision describe a single and continuous infringement in relation to all of the routes covered by the cartel, they nevertheless contain significant internal inconsistencies.

79 It therefore follows from the foregoing that the contested decision is vitiated by contradictions, first, between the grounds and the operative part and, secondly, within the grounds themselves.

80 It is necessary to examine, in the second place, whether the internal inconsistencies of the contested decision infringe the applicants’ rights of defence, in that they did not allow them to understand the nature and scope of the infringement or infringements found, and prevent the Court from exercising its power of review.

81 In that respect, it must be borne in mind that the mere existence of a contradiction between the grounds and the operative part of a decision is not sufficient to establish that the decision is vitiated by a defective statement of reasons, provided that, first, the decision, taken as a whole, is such that the applicant is able to identify and plead that lack of consistency, secondly, the wording of the operative part of the decision is sufficiently clear and precise to allow the applicant to ascertain the exact scope of the decision and, thirdly, the evidence relied upon to demonstrate the applicant’s participation in the infringements imputed to it in the operative part is clearly identified and examined in the grounds (see, to that effect, judgment in Adriatica di Navigazione v Commission, cited in paragraph 42 above, EU:T:2003:335, paragraphs 49 to 52).

82 In the present case, neither of the two possible interpretations of the operative part of the contested decision, referred to in paragraph 61 above, is consistent with the grounds of that decision. Accordingly, since the Court cannot favour one of those interpretations without substituting its own assessment for that of the Commission, it suffices to examine, in the context of at least one of those two possible interpretations, whether the internal inconsistencies in the contested decision were liable to infringe the applicants’ rights of defence and prevent the Court from exercising its power of review.

83 As regards the first interpretation, namely that the operative part of the contested decision finds four separate single and continuous infringements, it must be noted that, although the applicants were able to identify a contradiction, inter alia between the grounds and the operative part of the contested decision, and to infer from the wording of the operative part that it found four separate infringements, they were not, however, in a position to understand to what extent the evidence set out in the grounds, relating to the existence of a single and continuous infringement, was liable to establish the existence of four separate infringements found in the operative part, or to contest the sufficiency of that evidence.

84 In recitals 692 to 806 of the contested decision, the Commission chose not to treat the evidence adduced as regards each of the carriers at issue differently depending on the routes or categories of routes to which that evidence related. The Commission merely examined whether that evidence was liable to establish the participation of those carriers in the single cartel described in the grounds of that decision, without examining whether the existence of each of the four single and continuous infringements that it found in the operative part of the contested decision was supported by evidence. A distinction was made between the evidence only as regards the coordination affecting, respectively, the FSC, the SSC and the refusal to pay commission.

85 Moreover, in the context of the first possible interpretation of the operative part, the applicants are unable to understand the line of reasoning that led the Commission to find them liable for an infringement, including in respect of routes which they did not operate within the parameters defined by each article of the contested decision referring to them, and, accordingly, to understand whether they had been treated unfairly by comparison with the carriers at issue which were held liable for only two infringements, or even just one, on the ground that they did not operate certain routes. In that regard, the applicants argue in particular that it is apparent from the contested decision that the exchange of emails of 13 and 14 December 1999 is said to constitute evidence of the participation of SAS Cargo in the infringement described in Article 1 of the operative part, whereas other airlines which were also parties to that exchange of emails are not included in Article 1 of that operative part, without any explanation for that difference in treatment.

86 It must also be pointed out that it is not clear from a reading of the contested decision why certain carriers were not included in some articles of the contested decision. It was only after the measure of organisation of procedure mentioned in paragraph 20 above that the Commission indicated to the Court that certain carriers were not mentioned in some articles of the contested decision either because those carriers did not operate the routes referred to in those articles or because their turnover generated on those routes was, for 2005, less than EUR 30 000.

87 In that respect, it must be borne in mind that, according to settled case-law, the statement of reasons must in principle be notified to the person concerned at the same time as the decision adversely affecting him and a failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the decision during the proceedings before the Court (judgments of 26 November 1981 in Michel v Parliament, 195/80, ECR, EU:C:1981:284, paragraph 22, and 28 June 2005 in Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, ECR, EU:C:2005:408, paragraph 463).

88 Otherwise, there is a risk that the obligation to state reasons will not achieve its purpose, which, according to settled case-law, is to provide the person concerned with sufficient information to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested and to enable the Court to review the legality of the decision (see, to that effect, judgment in Dansk Rorindustri and Others v Commission, cited in paragraph 87 above, EU:C:2005:408, paragraph 462 and the case-law cited).

89 In addition, the Court is unable to review the legality of the contested decision, since it is not in a position to assess whether the evidence adduced by the Commission in order to establish the existence of a single and continuous infringement was sufficient to establish the existence of the four infringements found in the operative part of that decision.

90 It follows that the contested decision is vitiated by a defective statement of reasons which justifies its annulment.

91 The contested decision must therefore be annulled in so far as it concerns the applicants, given that they have an interest in seeking its annulment only in so far as it concerns them, and it is not necessary to rule on the other heads of claim, to examine the pleas which they raised in the application or to grant their requests for measures of organisation of procedure or inquiry ordering the Commission to provide them with access to evidence and documents (see paragraphs 14 and 16 above).

92 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to bear its own costs and to pay those of the applicants, in accordance with the form of order sought by the applicants.

93 In accordance with Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Council must be ordered to bear its own costs.

1. Annuls 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), in so far as it concerns SAS Cargo Group A/S, Scandinavian Airlines System Denmark-Norway-Sweden and SAS AB;

3. Orders the European Commission to bear its own costs and to pay those of SAS Cargo Group, Scandinavian Airlines System Denmark-Norway-Sweden and SAS;

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> SAS Cargo Group and Others v Commission (Judgment) [2015] EUECJ T-56/11 (16 December 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/T5611.html Cite as: [2015] EUECJ T-56/11, EU:T:2015:990, ECLI:EU:T:2015:990

Court of Justice of the European Communities (including Court of First Instance Decisions)