24.7.2017   

EN

Official Journal of the European Union

C 239/60

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annul 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) in its entirety as far as the applicant is concerned;

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in the alternative, in the exercise of its unlimited jurisdiction, reduce the fine imposed on the applicant; and

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order the Commission to pay the costs.

1.

First plea in law, alleging that the Commission violates the principle of ne bis in idem and Article 266 TFEU in finding the applicant liable for aspects of the infringement for which the Commission cleared the applicant of liability in the 2010 Decision and, in any event, violates the applicable limitation period by imposing a fine on the applicant in relation to those aspects and has demonstrated no legitimate interest in making a formal finding of infringement in relation to those aspects.

2.

Second plea in law, alleging that the Commission violates the principle of non-discrimination through the re-adoption of the contested decision in that the applicant finds itself in a less advantageous position than other addressees of the 2010 Decision against which the latter has become final and binding.

3.

Third plea in law, alleging that the Commission violates Article 101 TFEU and Article 53 EEA and the scope of its jurisdiction as well as the applicant’s rights of defence in finding the applicant liable for an infringement on intra-EEA routes and EU-Switzerland routes during a period when the Commission had no power to enforce Article 101 TFEU and Article 53 EEA in relation to airlines operating only on EEA-third country routes and the applicant’s conduct on EEA-third country routes was accordingly legal.

4.

Fourth plea in law, alleging that the Commission violates Article 101 TFEU and Article 53 EEA in finding that the applicant participated in one single and continuous infringement that included routes which the applicant did not serve and for which the applicant lacked the necessary legal rights to serve.

5.

Fifth plea in law, alleging that the Commission violates Article 101 TFEU and Article 53 EEA in asserting jurisdiction over inbound airfreight services on EEA-third country routes as such services are sold to customers located outside the EEA.

6.

Sixth plea in law, alleging that the Commission violates the applicant’s rights of defence and the principles of non-discrimination and proportionality in applying different standards of proof to different carriers.

7.

Seventh plea in law, alleging that the Commission violates the 2006 Fining Guidelines (1) and the principle of proportionality by including the relevant value of sales used as the basis for calculating the fine revenues derived from elements of price for airfreight services unrelated to the infringement set out in the contested decision.

8.

Eighth plea in law, alleging that the Commission violates the 2006 Fining Guidelines and the principle of legitimate expectations by including in the relevant value of sales used as the basis for calculating the fine revenues derived from airfreight services on inbound routes between EEA States and third countries.

9.

Ninth plea, alleging that the Commission violates the principle of proportionality in limiting the reduction in the fine granted to the applicant on account of the regulatory framework to 15 %.

10.

Tenth plea in law, alleging that the Commission violates the principles of non-discrimination and proportionality in as well as the applicant’s rights of defence failing to grant the applicant 10 % reduction in the fin on account of limited involvement in the infringement where such a reduction was granted to other addressees of the contested decision and 2010 decision that are in a position objectively similar to that of the applicant.

11.

Eleventh plea in law, alleging that the Court should rely on its unlimited jurisdiction and significantly reduce the fine.