(Case T‑350/17)

Singapore Airlines Ltd
and
Singapore Airlines Cargo Pte Ltd

v

European Commission

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 Switzerland 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 – Ne bis in idem principle – State coercion – Single and continuous infringement – Amount of the fine – Value of sales – Gravity of the infringement – Unlimited jurisdiction)

1. Competition – Transport – Competition rules – Air transport – Regulation No 411/2004 – Scope – EU-third country routes and non-EU EEA third country routes – Inbound airfreight services – Included

   (Arts 101 and 102 TFEU; EEA Agreement, Arts 53 and 54 and Annex XIII and Protocol 21, as amended by Decision of the EEA Joint Committee No 40/2005; Council Regulations No 1/2003, Art. 32(c), and No 411/2004, Arts 1 and 3)

   (see paragraphs 78-89)

2. Competition – EU rules – Territorial scope – Competence of the Commission – Conformity with public international law – Implementation or qualified effects of abusive practices in the EEA – Alternative methods – Criterion of the immediate, substantial and foreseeable effect – Scope where conduct has the object of restricting competition

   (Art. 101 TFEU; EEA Agreement, Art. 53)

   (see paragraphs 90-92, 108, 110-119, 129-131, 135-143, 145-147, 156-162)

3. Action for annulment – Pleas in law – Lack of competence of the institution which adopted the contested measure – Examination by the EU judicature of its own motion – Condition – Compliance with the principle that the parties should be heard

   (Art. 263 TFEU)

   (see paragraphs 179, 180)

4. Competition – Administrative procedure – Commission decision finding an infringement – Identification of the offences subject to sanction – Requirements arising from the principle of effective judicial protection – Clarity and precision of the operative part of the decision – Assessment – Precedence of the wording of the operative part over the grounds

   (Art. 101 TFEU; EEA Agreement, Art. 53; EC-Switzerland Agreement on Air Transport, Arts 8 and 11(2); Charter of Fundamental Rights of the European Union, Art. 47)

   (see paragraphs 187, 188, 191-197)

5. Competition – EU rules – Substantive scope – Conduct imposed by State measures – Not included – Scope – State constraint exerted by a third country – Irrelevant – Conformity with public international law

   (Arts 101 and 102 TFEU)

   (see paragraphs 235, 240-244)

6. Competition – EU rules – Substantive scope – Conduct imposed by State measures – Not included – Conditions – Existence of state constraints that preclude any autonomous conduct by undertakings – Burden of proof on the undertaking relying thereon – Scope

   (Arts 101 and 102 TFEU)

   (see paragraphs 235-238, 272, 283-285, 307)

7. Agreements, decisions and concerted practices – Prohibition – Infringements – Agreements and concerted practices constituting a single infringement – Concept – Unlawful practices and conduct forming part of an overall plan with a single objective – Assessment – Criteria – Same subject matter and subjects – Need for a link of complementary between the various instances of conduct at issue – Absence – Need to define the relevant market – Absence – Relevant indicia

   (Art. 101 TFEU; EEA Agreement, Art. 53; EC-Switzerland Agreement on Air Transport, Art. 8)

   (see paragraphs 312-317, 323, 324, 329-331, 340, 360, 376)

8. Agreements, decisions and concerted practices – Adverse effect on competition – Criteria for assessment – Content and objective of a cartel and economic and legal context of its development – Distinction between infringements by object and infringements by effect – Intention of the parties to an agreement to restrict competition – Not a necessary criterion – Infringement by object – Whether sufficiently damaging – Criteria for assessment

   (Art. 101 TFEU)

   (see paragraphs 409-426)

9. Action for annulment – Decision finding an infringement of the competition rules – Annulment on grounds of a defective statement of reasons – Adoption of a new decision taking into account a finding not indicated in the initial decision – Declaration of non-liability – Absence – Breach of the principle ne bis in idem – Absence

   (Arts 101 and 266, first para., TFEU; Charter of Fundamental Rights of the European Union, Art. 50; EEA Agreement, Art. 53; EC-Switzerland Agreement on Air Transport, Art. 8; Council Regulation No 1/2003, Art. 7)

   (see paragraphs 522-548)

10. Agreements, decisions and concerted practices – Prohibition – Infringements – Agreements and concerted practices constituting a single infringement – Attribution of liability for the entire infringement to a single undertaking – Conditions – Unlawful practices and conduct forming part of an overall plan – Assessment – Criteria – Contribution to the single objective of the infringement – Knowledge or foreseeability of the overall plan of the agreement, decision or concerted practice and of its key elements – Need for a competitive relationship between all the participating undertakings – Absence

    (Art. 101 TFEU; EEA Agreement, Art. 53; EC-Switzerland Agreement on Air Transport, Art. 8)

    (see paragraphs 553-567, 572, 575, 577)

11. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Extent of the burden of proof – Single and continuous infringement – Knowledge or foreseeability of the overall plan of the agreement, decision or concerted practice and of its key elements – Body of evidence

    (Art. 101 TFEU; EEA Agreement, Art. 53; EC-Switzerland Agreement on Air Transport, Art. 8; Council Regulation No 1/2003, Art. 23(2) and (3))

    (see paragraphs 610, 613-617)

12. Competition – Fines – Amount – Determination – Judicial review – Unlimited jurisdiction of the EU judicature – Scope – Limit – Observance of the principle of non-discrimination – Account taken of the Guidelines on the method of setting fines

    (Art. 261 TFEU; Council Regulation No 1/2003, Art. 31; Commission Notice 2006/C 210/02)

    (see paragraphs 670-676)

13. Competition – Fines – Amount – Determination – Determination of the basic amount – Determination of the value of sales – Account taken only of the value of sales carried out in direct or indirect relation to the infringement in the geographic sector concerned – Sales carried out within the territory of the European Economic Area – Cartel in the airfreight services sector – Account taken of the value of sales of inbound freight services – Whether permissible

    (Art. 101 TFEU; EEA Agreement, Art. 53; EC-Switzerland Agreement on Air Transport, Art. 8; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 13)

    (see paragraphs 678-691)

Résumé

The applicants are Singapore Airlines Ltd and its subsidiary Singapore Airlines Cargo Pte Ltd. Singapore Airlines Cargo Pte Ltd is active in the airfreight services market.

They are among 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 by which the undertakings in question had coordinated, over periods between 1999 and 2006, their pricing behaviour for the provision of freight services worldwide. It imposed a fine of EUR 74800000 on the applicants for their participation in that infringement.

On 7 December 2005, the Commission received an application for immunity under the 2002 Leniency Notice, ( 1 ) lodged by Lufthansa and two of its subsidiaries. That application referred to the existence of anticompetitive contacts between a number of undertakings operating in 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 send a statement of objections to 27 carriers on 19 December 2007 and then to adopt a first decision against 21 carriers, including the applicants, on 9 November 2010. ( 2 ) However, that decision was annulled by the General Court, by judgments of 16 December 2015, ( 3 ) within the limits of the respective claims for annulment to that end, due to contradictions in the statement of reasons for that decision.

In its judgment, the Court rejects the claim for annulment of the contested decision as well as the claim for reduction of the amount of the fine imposed on the applicants. Thus, it endorses the analysis followed by the Commission in order to establish the existence of a single and continuous infringement affecting several types of air routes, as well as the applicants’ participation in that infringement, to the extent found in the operative part of the decision at issue. It nevertheless provides clarification on the scope of the principle ne bis in idem in proceedings aimed at establishing and, where appropriate, penalising infringements of the competition rules.

Findings of the Court

In the first place, the Court holds that the Commission did not exceed the limits of its own territorial jurisdiction when it found that there was a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement, affecting flights on so-called ‘inbound’ air routes, understood as routes from airports located in third countries to those located in Member States of the European Union or other States party to the European Economic Area which are not members of the European Union within the temporal limits described in the contested decision.

In the second place, the Court rejects the plea, raised of its own motion, alleging a lack of jurisdiction on the part of the Commission to find and penalise an infringement of Article 53 of the EEA Agreement on routes between Switzerland, on the one hand, and Norway and Iceland, on the other. That plea is unfounded, since it is apparent from the operative part of the contested decision that the Commission did not find any infringement of that provision on those routes.

In the third place, the Court examines the applicants’ various complaints seeking to dispute, in principle, the existence of a single and continuous infringement in the light of the conduct found in the contested decision.

In that regard, the Court finds, in particular, that, contrary to what is argued by the applicants, the analysis carried out by the Commission in order to establish the existence of the infringement at issue, envisaged as a single and continuous infringement, is not vitiated by any error of law or assessment. First, the Court observes that the factors relied on by the Commission for the purposes of its analysis, relating in particular to the existence of a single anticompetitive objective and the identical nature of the undertakings and services in question, were such as to enable the Commission to classify the conduct at issue as a single infringement. Second, the Court examines in detail the evidence relied on by the Commission in that respect, which leads it to consider, in conclusion, that the applicants failed to establish the errors of assessment which they allege.

As regards, in the fourth place, the finding of the applicants’ participation in the single and continuous infringement, the Court examines in turn various pleas and complaints put forward by the applicants seeking to challenge both the finding taken as a whole and various elements of that finding relating to their participation in the various aspects of the infringement at issue, and the scope of that finding, as set out in the operative part of the contested decision.

In that context, the Court examines, in particular, a complaint alleging breach of the principle ne bis in idem, which precludes inter alia an undertaking being found liable or proceedings being brought against it afresh on the grounds of anticompetitive conduct for which it has been declared not liable by an earlier decision that can no longer be challenged. In that regard, it observes at the outset, as the applicants do, that the operative part of the contested decision expressly finds that the applicants participated in the infringement at issue by virtue of their conduct in connection with air routes between Member States of the European Union and between those of Member States of the European Union and Switzerland. That finding, although envisaged in the Statement of Objections of 2007, did not appear in the operative part of the initial decision, adopted on 9 November 2010. The Court nevertheless considers that such silence does not amount to a declaration of non-liability in that regard. According to the Court, to hold otherwise would be irreconcilable with various provisions and, what is more, with the general scheme of the system relating to the application of the EU competition rules. Thus, first, in the exercise of its prerogatives in competition matters, ( 4 ) the Commission is not under any obligation to rule on whether or not there has been an infringement of the relevant competition rules, to find and penalise any anticompetitive conduct, or even, in the context of an investigation procedure giving rise to a statement of objections, to rule in the final decision on each objection referred to in that statement. Secondly, from the point of view of the general scheme of Regulation No 1/2003, ( 5 ) the Court notes that Article 10 of that regulation provides for a specific legal basis for the adoption of a ‘negative’ decision on the substance, which is specifically intended to make a finding that Article 101 TFEU does not apply to specific conduct. Furthermore, the Court notes that, according to the case-law, ( 6 ) the adoption by a national competition authority of a decision that there are no grounds for action under the second paragraph of Article 5 of Regulation No 1/2003 does not lead to a declaration of non-liability capable of precluding a subsequent finding of an infringement.

In the present case, given that the initial decision was not adopted on the basis of Article 10 of that regulation, there is nothing to justify regarding it as a declaration of non-liability, even though it amounts, in the circumstances of the present case, to a decision that there were no grounds for action.

In those circumstances, the Court holds that no breach of the principle ne bis in idem may be alleged against the Commission.

Lastly, after rejecting the claims for annulment in their entirety, the Court also rejects the claim for reduction of the amount of the fine imposed jointly and severally on the applicants by the Commission. In that regard, considering it appropriate to adhere to the method of calculation used by the Commission in the contested decision, the Court rejects the applicants’ complaints concerning the application of that method in the present case.

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

( 2 ) 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’).

( 3 ) 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).

( 4 ) The Court refers, in the present case, to Article 105(1) TFEU, Article 55(1) of the EEA Agreement, the EC-Switzerland Air Transport Agreement, Regulation No 1/2003 and the implementing provisions of Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement.

( 5 ) 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).

( 6 ) See, inter alia, judgment of 3 May 2011, Tele2 Polska (C‑375/09, EU:C:2011:270, paragraphs 22 to 28).