5.3.2011

Official Journal of the European Union

C 72/30

Action brought on 23 January 2011 — Koninklijke Luchtvaart Maatschappij v Commission

(Case T-28/11)

2011/C 72/48

Language of the case: English

Parties

Applicant: Koninklijke Luchtvaart Maatschappij NV (Amstelveen, the Netherlands) (represented by: M. Smeets, lawyer)

Defendant: European Commission

Form of order sought

—	annul Commission Decision No C(2010) 7694 final on 9 November 2010 in whole or in part, and in subsidiary order,

—	reduce the fine imposed.

Pleas in law and main arguments

Application pursuant to Article 263 of the Treaty on the Functioning of the European Union (the ‘TFEU’) (ex Article 230 EC) for the review and annulment of Commission Decision No C(2010) 7694 final on 9 November 2010, relating to proceedings under Article 101 TFEU (ex Article 81 EC), 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/39.258 — Airfreight) addressed to KLM N.V.; and, in subsidiary order, for the reduction of the fine imposed pursuant to Article 261 TFEU (ex article 229 EC).

In support of the action, the applicant relies on four pleas in law.

First plea in law, alleging that the contested decision fails to state reasons within the meaning of article 296 TFEU and article 41 (2) (C) of the Charter of Fundamental Rights of the European Union. In this regard the applicant submits the following arguments:

—	fundamental inconsistency between the operative part of the decision and the statement of reasons;

—	inconsistencies between the operative part of the decision and the statement of reasons preclude an effective review of the decision by the Court;

—	inconsistencies and lack of clarity within the statement of reasons concerning (i) the scope of the infringement and the addressees of the decision, (ii) the non-commissioning of surcharges, and (iii) the introduction of the fuel surcharge preclude an effective review of the decision by the Court;

—	inconsistencies and lack of clarity in the statement of reasons in relation to the application of the 2006 Fining Guidelines and the imposition of fines preclude an effective review of the decision by the Court.

Second plea in law, alleging that the decision was taken in violation of the right to due process within the meaning of article 41, 47, 48, 49, and 50 of the Charter of Fundamental Rights of the European Union. In this regard the applicant submits the following arguments:

—	the Commission failed to respect the right to be heard, the right to a fair trial and the presumption of innocence under article 41 (2) (a), 47 and 48 of the Charter by omitting to hear the addressees on the various changes to the scope of the case and the number of addressees;

—	violation of the principle of the legality and proportionality of fines under article 49 Charter by including KLM Cargo’s full turnover in the value of sales under the 2006 Fining Guidelines, and the right to be heard in that regard;

—

violation of the principle of the legality and proportionality of fines under article 49 Charter and the principle of non bis in idem of article 50 Charter by including sales outside the EEA in the value of sales under the 2006 Fining Guidelines and by using an indiscriminate criterion to cap that value of sales, and the right to be heard in that regard.

Third plea in law, alleging that the fine has been set in breach of article 101 TFEU, article 23 of Regulation 1/2003 (1) and the 2006 Fining Guidelines since:

—	the 2006 Fining Guidelines do not allow to include sales which are not directly or indirectly related to the infringement in the value of sales;

—	the 2006 Fining Guidelines do not allow the fine to be based on sales outside the EEA.

Fourth plea in law, alleging that the determination of fines under the 2006 Fining Guidelines is manifestly erroneous and in violation of the principles of legitimate expectations, proportionality and equal treatment. In this regard the applicant submits the following arguments:

—	it is manifestly erroneous and a violation of the principles of legitimate expectations, proportionality and equal treatment to hold that the sales related directly or indirectly to the infringement are KLM Cargo’s full sales;

—	it is manifestly erroneous and in violation of the principles of legitimate expectations, proportionality and equal treatment to hold that the sales related directly or indirectly to the infringement should include KLM Cargo’s sales outside the EEA;

—

it is manifestly erroneous and in violation of the principles of proportionality and equal treatment to determine the gravity of the infringement without reference to the nature of surcharges and to determine both the value of sales and the gravity of the infringement with reference to the global scope of the infringement;

—	it is manifestly erroneous and in violation of the principles of proportionality and equal treatment to determine the additional amount of the fine (‘entry fee’) irrespective of the duration of the infringement;

—	it is manifestly erroneous and in violation of the principles of proportionality and equal treatment to set the reduction of the fine on account of governmental intervention at 15 %.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ 2003 L 1, p. 1