GC, 4th chamber, March 30, 2022, No T-350/17

THE GENERAL COURT (Fourth Chamber, Extended Composition),

Judgment

I. Background to the dispute

1 The applicants are Singapore Airlines Ltd (‘SIA’) and its subsidiary Singapore Airlines Cargo Pte Ltd (‘SAC’) (together or separately, ‘the applicants’). SAC is active in the market for airfreight (‘freight’).

2 In the freight sector, airlines provide for the carriage of cargo by air (‘carriers’). As a general rule, carriers supply freight services to freight forwarders, who arrange the transport of that cargo on behalf of shippers. In return, those freight forwarders pay the carriers a price consisting, on the one hand, of rates calculated on a per-kilogram basis and negotiated either on a long-term basis (typically one season, namely six months) or on an ad-hoc basis, and, on the other hand, of various surcharges, which are intended to cover certain costs.

3 There are four different types of carrier: first, those which exclusively operate dedicated freighter airplanes, secondly, those with cargo capacity on passenger flights, thirdly, those with both dedicated freighter airplanes and with cargo capacity on passenger flights (combination airlines) and, fourthly, integrators with dedicated freighter airplanes providing both integrated express delivery services and general cargo services.

4 No carrier is able to serve all major cargo destinations in the world with sufficient frequency, and therefore agreements among carriers enabling them to increase their network coverage or improve their schedules have become common, including in the context of broader commercial alliances between carriers. At the material time, those alliances included inter alia the WOW alliance, which brought together Deutsche Lufthansa AG (‘Lufthansa’), SAS Cargo Group A/S (‘SAS Cargo’), the applicants and Japan Airlines International Co. Ltd (‘Japan Airlines’).

A. Administrative procedure

5 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) lodged by Lufthansa and its subsidiaries, Lufthansa Cargo AG and Swiss International Air Lines AG (‘Swiss’). The application alleged that extensive anticompetitive contacts were being maintained between a number of carriers with regard to:

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

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

6 On 14 and 15 February 2006, the Commission carried out unannounced inspections at the premises of a number of carriers 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] and [102 TFEU] (OJ 2003 L 1, p. 1).

7 Following the inspections, a number of carriers made an application under the 2002 notice referred to in paragraph 5 above.

8 On 19 December 2007, after sending a number of requests for information, 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 EC Switzerland Air Transport Agreement’) by participating in a cartel relating, in particular, to the FSC, the SSC and a refusal to pay commission on surcharges (‘the refusal to pay commission’).

9 In response to the Statement of Objections, the addressees submitted written observations.

10 An oral hearing was held from 30 June to 4 July 2008.

B. The Decision of 9 November 2010

11 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 [EC Switzerland Air Transport Agreement] (Case COMP/39258 – Airfreight) (‘the Decision of 9 November 2010’). That decision is addressed to 21 carriers (‘the carriers incriminated in the Decision of 9 November 2010’), namely:

– Air Canada;

– Air France-KLM (‘AF-KLM’);

– Société Air France (‘AF’);

– Koninklijke Luchtvaart Maatschappij NV (‘KLM’);

– British Airways plc;

– Cargolux Airlines International SA (‘Cargolux’);

– Cathay Pacific Airways Ltd (‘CPA’);

– Japan Airlines Corp.;

– Japan Airlines;

– Lan Airlines SA;

– Lan Cargo SA;

– Lufthansa Cargo;

– Lufthansa;

– Swiss;

– Martinair Holland NV (‘Martinair’);

– Qantas Airways Ltd (‘Qantas’);

– SAS AB;

– SAS Cargo;

– Scandinavian Airlines System Denmark-Norway-Sweden (‘SAS Consortium’);

– SAC;

– SIA.

12 The objections raised provisionally against the other addressees of the Statement of Objections were abandoned (‘the non-incriminated carriers’).

13 The grounds of the Decision of 9 November 2010 described 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, covering the territory of the EEA and of Switzerland, by which the carriers incriminated in the Decision of 9 November 2010 had coordinated their behaviour as regards the pricing of freight services.

14 The operative part of the Decision of 9 November 2010, in so far as it related to the applicants, read as follows:

‘Article 2

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

…

(s) [SAC] from 1 May 2004 until 14 February 2006;

(t) [SIA] from 1 May 2004 until 14 February 2006.

Article 3

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 [freight] 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:

…

(q) [SAC] from 19 May 2005 until 14 February 2006;

(r) [SIA] from 19 May 2005 until 14 February 2006.

Article 5

For the infringements referred to in Articles 1 to 4 [of the Decision of 9 November 2010], the following fines are imposed:

…

(t) [the applicants] jointly and severally: EUR 74 800 000;

…

Article 6

The undertakings listed in Articles 1 to 4 shall immediately bring to an end the infringements referred to in those Articles, in so far 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.’

C. Action challenging the Decision of 9 November 2010 before the Court

15 By application lodged at the Court Registry on 25 January 2011, the applicants brought an action seeking the annulment of the Decision of 9 November 2010, in so far as that decision concerned them and, in the alternative, a reduction in the fine imposed on them. The other carriers incriminated in the Decision of 9 November 2010, with the exception of Qantas, also brought actions against that decision before the Court.

16 By 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, EU:T:2015:984); the Court annulled, in whole or in part, the Decision of 9 November 2010 in so far as it concerned, respectively, Air Canada, KLM, Japan Airlines and Japan Airlines Corp., CPA, Cargolux, Latam Airlines Group SA (formerly Lan Airlines) and Lan Cargo, the applicants, Lufthansa, Lufthansa Cargo and Swiss, British Airways, SAS Cargo, SAS Consortium and SAS, AF-KLM, AF and Martinair. The Court found that the decision was vitiated by a defective statement of reasons.

17 In that regard, the Court held, in the first place, that the Decision of 9 November 2010 was vitiated by contradictions between the grounds and the operative part thereof. The grounds of the decision described a single and continuous infringement relating to all routes covered by the cartel, in which all the carriers incriminated in the Decision of 9 November 2010 had participated. By contrast, the operative part of that decision identified either four separate single and continuous infringements, or just one single and continuous infringement, liability for which was attributed solely to the carriers which, as regards the routes mentioned in Articles 1 to 4 of the 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. Neither of those two readings of the operative part of the Decision of 9 November 2010 was consistent with the grounds for the decision.

18 The Court also rejected as incompatible with the grounds of the Decision of 9 November 2010 the alternative reading of the operative part proposed by the Commission, which was that the failure to mention some of the carriers incriminated in the Decision of 9 November 2010 in Articles 1, 3 and 4 of the decision could 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.

19 In the second place, the Court held that the grounds of the Decision of 9 November 2010 contained significant internal inconsistencies.

20 In the third place, after noting that neither of the two possible readings of the operative part of the Decision of 9 November 2010 was consistent with the grounds thereof, the Court considered whether, in the context of at least one of those two possible readings, the internal contradictions of that decision were likely to undermine the applicants’ rights of defence and prevent the Court from conducting its review. As regards the first reading, namely that there were four separate single and continuous infringements, first of all, the Court held that the applicants had not been in a position to understand to what extent the evidence set out in the grounds and relating to the existence of a single and continuous infringement was liable to establish the existence of the four separate infringements found in the operative part, or to contest the sufficiency of that evidence. Secondly, it held that the applicants had not been able to understand the line of reasoning that had led the Commission to find them liable for an infringement, including in respect of routes which it did not operate within the parameters defined by each article of the Decision of 9 November 2010.

D. Contested decision

21 On 20 May 2016, following the annulment ordered by the Court, the Commission sent a letter to the carriers incriminated in the Decision of 9 November 2010 which had brought an action against that decision before the Court to inform them that its Directorate-General (DG) for Competition intended to propose to it the adoption of a new decision in which it would find that they had participated in 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 on all of the routes referred to in that decision.

22 The recipients of the Commission’s letter referred to in the previous paragraph were invited to make known their views on the Commission DG for Competition’s intended decision within one month. All recipients, including the applicants, availed themselves of that possibility.

23 On 17 March 2017, the Commission adopted Decision C(2017) 1742 final relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the [EC Switzerland Air Transport Agreement] (Case AT.39258 – Airfreight) (‘the contested decision’). That decision is addressed to 19 carriers (‘the incriminated carriers’), namely:

– Air Canada;

– AF-KLM;

– AF;

– KLM;

– British Airways;

– Cargolux;

– CPA;

– Japan Airlines;

– Latam Airlines Group;

– Lan Cargo;

– Lufthansa Cargo;

– Lufthansa;

– Swiss;

– Martinair;

– SAS;

– SAS Cargo;

– SAS Consortium;

– SAC;

– SIA.

24 In the contested decision, no objections are maintained against the other addressees of the Statement of Objections.

25 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 EC Switzerland Air Transport Agreement, by which the incriminated carriers coordinated their behaviour as regards the pricing of freight services worldwide through the FSC, the SSC and the payment of commission on surcharges.

26 In the first place, in Section 4.1 of the contested decision, the Commission described the ‘basic principles and structure of the cartel’. In recitals 107 and 108 of that decision, the Commission stated that the investigations had uncovered a worldwide cartel based on a network of bilateral and multilateral contacts over a long period of time among competitors regarding the conduct which they had decided on, intended to adopt, or contemplated adopting with regard to various elements of the charges for freight services, namely the FSC, the SSC and the refusal to pay commission. It stated that the common objective of that network of contacts was to coordinate competitors’ pricing behaviour or to reduce uncertainty with regard to their pricing policies (‘the cartel at issue’).

27 According to recital 109 of the contested decision, the objective of the coordinated application of the FSC was to ensure that carriers throughout the world imposed a flat-rate surcharge per kilo for all relevant shipments. A complex network of mainly bilateral contacts among carriers was established to coordinate and monitor the application of the FSC, the precise date of application often, according to the Commission, being decided at local level usually with the principal local carrier taking the lead and others following. That coordinated approach was extended to the SSC and to the refusal to pay commission, with the result that the latter became net revenue for the carriers and created an additional incentive for them to continue with the coordination relating to the surcharges.

28 According to recital 110 of the contested decision, senior management in the head offices of a number of airlines were either directly involved in competitor contacts or regularly informed about them. In the case of the surcharges, the responsible head-office employees were in contact with each other when a change to the surcharge level was imminent. The refusal to pay a commission on surcharges was also confirmed on a number of occasions during contacts at head-office level. There were frequent contacts also in a number of local markets, partly to better implement the instructions received from the head offices and to adapt them to the local market conditions, partly to coordinate and implement local initiatives. In this latter case, the head offices generally authorised or were informed of the proposed action.

29 According to recital 111 of the contested decision, carriers contacted each other bilaterally, in small groups and in some instances in large multilateral forums. Local associations of carrier representatives were used, in particular in Hong Kong and Switzerland, to discuss yield-improvement measures and coordinate surcharges. Meetings of alliances, such as the WOW alliance, were also used for such purposes.

30 In the second place, in Sections 4.3, 4.4 and 4.5 of the contested decision, the Commission described the contacts concerning, respectively, the FSC, the SSC and the refusal to pay commission (‘the contacts at issue’).

31 Thus, first, in recitals 118 to 120 of the contested decision, the Commission summarised the contacts relating to the FSC as follows:

‘(118) A network of bilateral contacts built up from late 1999/early 2000 onwards involving a number of airlines that allowed information sharing concerning the actions of the participants throughout the network. Carriers contacted each other regularly to discuss any question that came up concerning the FSC, including changes to the mechanism, changes [to] the FSC level, consequent application of the mechanism, [and] instances when some airlines did not follow the system.

(119) Concerning the implementation of FSC at local level, a system was often applied whereby leading airlines on particular routes or in certain countries would announce the change first, and they would be followed by others …

(120) Anticompetitive coordination concerning the FSC took place mainly in four contexts: concerning the introduction of FSC in early 2000, the reintroduction of a fuel surcharge mechanism after the revocation of the planned [International Air Transport Association (IATA)] mechanism, the introduction of new trigger points (raising the maximum level of FSC) and most frequently at the point where the fuel indices were approaching the level at which an increase or decrease in the FSC would be triggered.’

32 Secondly, in recital 579 of the contested decision, the Commission summarised the contacts relating to the SSC as follows:

‘A number of [incriminated carriers] discussed, among others issues, their plans whether or not to introduce a SSC … Moreover, the amount of the surcharge and the timing of the introduction were also discussed. [The incriminated carriers] furthermore shared with each other ideas concerning the justification to be given to their customers. Ad hoc contacts concerning the implementation of the SSC continued throughout the years 2002-2006. The illicit coordination took place both at head office and local level.’

33 Third, in recital 676 of the contested decision, the Commission stated that the incriminated carriers had ‘continued to refuse commission on the surcharges and [had] confirmed their relevant intentions to each other in the framework of numerous contacts’.

34 In the third place, in Section 4.6 of the contested decision, the Commission carried out the assessment of the contacts at issue. The assessment of the contacts relied on against the applicants is set out in recitals 803 to 806 of that decision.

35 In the fourth place, in Section 5 of the contested decision, the Commission applied Article 101 TFEU to the facts of the present case, while stating, in footnote 1289 to that decision, that the considerations adopted also applied to Article 53 of the EEA Agreement and Article 8 of the EC Switzerland Air Transport Agreement. Thus, first, in recital 846 of that decision, the Commission found that the incriminated carriers had coordinated their conduct or influenced price setting, ‘ultimately amounting to price fixing with regard to’ the FSC, the SSC and the payment of commission on surcharges. In recital 861 of that decision, the Commission described the ‘overall scheme to coordinate the pricing behaviour for [freight] services’ the investigation of which had revealed the existence of a ‘complex infringement consisting of various actions which [could] be either classified as an agreement or concerted practice, within which the competitors [had] knowingly substituted practical cooperation between them for the risks of competition’.

36 Second, in recital 869 of the contested decision, the Commission found that the ‘conduct in question [constituted] a single and continuous infringement of Article 101 of the TFEU’. It thus found that the arrangements at issue pursued a single anticompetitive aim of distorting competition in the freight sector within the EEA, including when coordination took place at local level and experienced local variations (recitals 872 to 876), concerned a ‘single product/service’, namely ‘the provision of [freight] services and the pricing thereof’ (recital 877), concerned the same undertakings (recital 878), had a single nature (recital 879) and related to three elements, namely the FSC, the SSC and the refusal to pay commission, which were ‘frequently discussed side by side in the same competitor contact’ (recital 880).

37 In recital 881 of the contested decision, the Commission added that ‘the majority of the parties’, including the applicants, were involved in all three elements of the single infringement.

38 Third, in recital 884 of the contested decision, the Commission concluded that the infringement at issue was continuous.

39 Fourth, in recitals 885 to 890 of the contested decision, the Commission examined the relevance of contacts in third countries and of contacts concerning routes which the carriers had never operated or which they could not legally have operated. It considered that, given the worldwide nature of the cartel at issue, those contacts were relevant to establishing the existence of the single and continuous infringement. In particular, it found that the surcharges were measures of general application that were not route-specific but were intended to be applied on all routes, on a worldwide basis, including routes to and from the EEA and Switzerland. It stated that the refusal to pay commission was equally general in nature. In addition, the Commission considered that there were no insurmountable barriers that prevented carriers from providing freight services on routes which they had never operated or which they could not legally operate, in particular because of the agreements which they were able to conclude between themselves.

40 Fifth, in recital 903 of the contested decision, the Commission found that the conduct at issue had the object of restricting competition ‘at least in the [European Union], the EEA and Switzerland’. In recital 917 of that decision, the Commission added, in essence, that there was, therefore, no need to take into account the ‘actual effects’ of that conduct.

41 Sixth, in recitals 922 to 971 of the contested decision, the Commission examined the WOW alliance. In recital 971 of that decision, it concluded that:

‘Having regard to the WOW Alliance Agreement and its implementation the Commission finds that the coordination of the surcharges between the WOW [alliance] members was conducted outside the legitimate framework of the alliance that does not justify it. The members were in fact aware that such coordination is illegitimate. Furthermore, they were aware that, the coordination of surcharges involved a number of [carriers] not participating in [the WOW alliance]. Consequently, the Commission finds that the evidence concerning contacts between WOW [alliance] members … constitutes evidence of their participation in the infringement of Article 101 of the TFEU as described in this Decision.’

42 Seventh, in recitals 972 to 1021 of the contested decision, the Commission examined the legislation of seven third countries, which several of the incriminated carriers maintained had required them to collude on surcharges, thereby impeding the application of the relevant competition rules. The Commission considered that those carriers had failed to prove that they had acted under duress from those third countries.

43 Eighth, in recitals 1024 to 1035 of the contested decision, the Commission found that the single and continuous infringement was likely to have an appreciable effect on trade between Member States, between contracting parties to the EEA Agreement and between contracting parties to the EC Switzerland Air Transport Agreement.

44 Ninth, the Commission examined the limits of its territorial and temporal jurisdiction to find and penalise an infringement of the competition rules in the present case. First, in recitals 822 to 832 of the contested decision, under the heading ‘Jurisdiction of the Commission’, the Commission stated, in essence, that it would not apply, first of all, Article 101 TFEU to agreements and practices prior to 1 May 2004 concerning routes between airports within the European Union and airports outside the EEA (‘EU third country routes’), next, Article 53 of the EEA Agreement to agreements and practices prior to 19 May 2005 concerning EU third country routes and routes between airports in countries that are contracting parties to the EEA Agreement but are not EU Member States and airports in third countries (‘non-EU EEA third country routes’ and, together with EU-third country routes, ‘EEA third country routes’) and, lastly, Article 8 of the EC Switzerland Air Transport Agreement to agreements and practices prior to 1 June 2002 concerning routes between airports within the European Union and Swiss airports (‘EU Switzerland routes’). It also stated that the contested decision did ‘not purport to find an infringement of Article 8 of the [EC Switzerland Air Transport Agreement] concerning freight services on routes between Switzerland and third countries’.

45 Second, in recitals 1036 to 1046 of the contested decision, under the heading ‘The applicability of Article 101 of the TFEU and Article 53 of the EEA Agreement to inbound routes’, the Commission rejected the arguments put forward by the various incriminated carriers that it would exceed the limits of its territorial jurisdiction under the rules of public international law by finding and penalising an infringement of those two provisions on routes from third countries to the EEA (‘inbound routes’ and, as regards the freight services offered on those routes, ‘inbound freight services’). In particular, in recital 1042 of that decision, it recalled the criteria which it considered to be applicable:

‘With respect to the extra-territorial application of Article 101 of the TFEU and Article 53 of the EEA Agreement these provisions are applicable to arrangements that are either implemented within the [European Union] (implementation theory) or that have immediate, substantial and foreseeable effects within the [European Union] (effects theory).’

46 In recitals 1043 to 1046 of the contested decision, the Commission applied the criteria in question to the facts of the present case:

‘(1043) In the case of [inbound freight services], Article 101 of the TFEU and Article 53 of the EEA Agreement are applicable because the service itself that is the subject of the price fixing infringement is to be performed and is indeed performed, in part, within the territory of the EEA. Moreover, many contacts by which the addressees coordinated surcharges and the non-payment of commission took place in the EEA or involved participants in the EEA.

(1044) … the example given in the [Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2008 C 95, p. 1 and corrigendum OJ 2009 C 43, p. 10)] is not relevant here. [That notice] relates to the geographic allocation of turnover of undertakings for the purpose of establishing whether the turnover thresholds of Article 1 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings [(OJ 2004 L 24, p. 1)] are met.

(1045) In addition, anticompetitive practices in third countries with regard to … freight transportation to the EU/EEA are liable to have immediate, substantial and foreseeable effects within the EU/EEA, as the increased costs of air transport to the EEA, and consequently higher prices of imported goods, are by their very nature liable to have effects on consumers in the EEA. In this case the anticompetitive practices eliminating competition between carriers offering [inbound freight services] were liable to have such effects also on the provision of [freight] services by other carriers within the EEA, between the different hub airports used by carriers from third countries in the EEA and airports of destination of those shipments in the EEA to which the carrier from the third country does not fly.

(1046) Finally, it has to be underlined that the Commission has found a world-wide cartel. The cartel was implemented globally and the cartel arrangements concerning inbound routes formed an integral part of the single and continuous infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement. The cartel arrangements were in many cases organised centrally and the local personnel were merely implementing them. The uniform application of the surcharges on a world wide scale was a key element of the cartel.’

47 In the fifth place, in recital 1146 of the contested decision, the Commission found that the cartel at issue had started on 7 December 1999 and lasted until 14 February 2006. In the same recital, it stated that the cartel had infringed:

– Article 101 TFEU, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the European Union;

– Article 101 TFEU, from 1 May 2004 to 14 February 2006, as regards air transport on EU-third country routes;

– Article 53 of the EEA Agreement, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the EEA (‘intra-EEA routes’);

– Article 53 of the EEA Agreement, from 19 May 2005 to 14 February 2006, as regards air transport on non-EU EEA third country routes;

– Article 8 of the EC Switzerland Air Transport Agreement, from 1 June 2002 to 14 February 2006, as regards air transport on EU Switzerland routes.

48 In so far as the applicants are concerned, the Commission found that the duration of their infringement was from 4 January 2000 to 14 February 2006.

49 In the sixth place, in Section 8 of the contested decision, the Commission examined the remedies to be taken and the fines to be imposed.

50 As regards, in particular, its determination of the amount of the fines, the Commission stated that it took into account the gravity and duration of the single and continuous infringement as well as possible aggravating and mitigating circumstances. To that end, it applied the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) (‘the 2006 Guidelines’).

51 In recitals 1184 and 1185 of the contested decision, the Commission stated that the basic amount of the fine consisted of a proportion of up to 30% of the value of the undertaking’s sales, depending on the gravity of the infringement, multiplied by the number of years of the undertaking’s participation in the infringement, plus an additional amount of between 15 and 25% of the value of sales (‘the additional amount’).

52 In recital 1197 of the contested decision, the Commission determined the value of sales by adding together, for 2005 – that being the last full year of the single and continuous infringement – turnover from flights in both directions on intra-EEA routes, on EU third country routes, on EU Switzerland routes and on non-EU EEA third country routes. It also took into account the accession of new Member States to the European Union in 2004.

53 In recitals 1198 to 1212 of the contested decision, taking into account the nature of the infringement (horizontal price-fixing agreements), the combined market share of the incriminated carriers (34% worldwide and at least as high on intra-EEA routes and EEA third country routes), the geographic scope of the cartel at issue (worldwide) and the fact that the cartel had actually been implemented, the Commission set the gravity factor at 16%.

54 In recitals 1214 to 1217 of the contested decision, the Commission determined the duration of the applicants’ participation in the single and continuous infringement as follows, according to the routes concerned:

– in so far as concerned intra-EEA routes, for SAC and SIA, respectively: from 1 July 2001 to 14 February 2006 and from 4 January 2000 to 14 February 2006, equating to four years and seven months and six years and one month, respectively, and giving rise to a multiplier of 4 7/12 and 6 1/12, respectively;

– in so far as concerned EU third country routes, for SAC and SIA: from 1 May 2004 to 14 February 2006, equating to one year and nine months and giving rise to a multiplier of 1 9/12;

– in so far as concerned EU Switzerland routes, for SAC and SIA: from 1 June 2002 to 14 February 2006, equating to three years and eight months and giving rise to a multiplier of 3 8/12;

– in so far as concerned non-EU EEA third country routes, for SAC and SIA: from 19 May 2005 to 14 February 2006, equating to eight months and giving rise to a multiplier of 8/12.

55 In recital 1219 of the contested decision, the Commission found that, given the specific circumstances of the case and taking into account the criteria mentioned in paragraph 53 above, the additional amount should be set at 16% of the value of sales.

56 Consequently, in recitals 1240 to 1242 of the contested decision, the basic amount to be imposed on the applicants was assessed at EUR 177 000 000 and, after a reduction of 50% on the basis of point 37 of the 2006 Guidelines (‘the general 50% reduction’) to reflect the fact that part of the services relating to inbound routes and routes from the EEA to third countries (‘outbound routes’) was performed outside the territory covered by the EEA Agreement and that part of the harm was therefore likely to occur outside that territory, the basic amount of the applicant’s fine was fixed at EUR 88 000 000.

57 In recitals 1264 and 1265 of the contested decision, in accordance with point 29 of the 2006 Guidelines, the Commission granted the incriminated carriers an additional reduction of 15% in the basic amount of the fine (‘the general 15% reduction’) on the ground that certain regulatory regimes had encouraged the cartel at issue.

58 Consequently, in recital 1293 of the contested decision, the Commission set the basic amount of the applicants’ fine, after adjustment, at EUR 74.8 million.

59 The operative part of the contested decision, in so far as the present dispute is concerned, reads as follows:

‘Article 1

By coordinating their pricing behaviour in the provision of [freight] services on a global basis with respect to the [FSC], the [SSC] and the payment of commission payable on surcharges, the following undertakings have committed the following single and continuous infringement of Article 101 [TFEU], Article 53 of [the EEA Agreement] and Article 8 of [the EC Switzerland Air Transport Agreement] as regards the following routes and for the following periods.

(1) The following undertakings have infringed Article 101 of the TFEU and Article 53 of the EEA Agreement as regards [intra-EEA routes], for the following periods:

…

(r) [SAC] from 1 July 2001 until 14 February 2006;

(s) [SIA] from 4 January 2000 until 14 February 2006.

(2) The following undertakings infringed Article 101 of the TFEU as regards [EU third country routes], for the following periods:

…

(q) [SAC] from 1 May 2004 until 14 February 2006;

(r) [SIA] from 1 May 2004 until 14 February 2006.

(3) The following undertakings infringed Article 53 of the EEA Agreement as regards [non-EU EEA third country routes], for the following periods:

…

(q) [SAC] from 19 May 2005 until 14 February 2006;

(r) [SIA] from 19 May 2005 until 14 February 2006.

(4) The following undertakings infringed Article 8 of the [EC Switzerland Air Transport Agreement] as regards [EU Switzerland routes], for the following periods:

…

(r) [SAC] from 1 June 2002 to 14 February 2006;

(s) [SIA] from 1 June 2002 to 14 February 2006.

Article 2

[The Decision of 9 November 2010] is amended as follows:

In Article 5, paragraphs (j), (k) and (l) are repealed.

Article 3

For the single and continuous infringement referred to in Article 1 (and as regards British Airways … also for the aspects of Articles 1 to 4 of [the Decision of 9 November 2010] that have become final), the following fines are imposed:

…

(s) [the applicants] jointly and severally: EUR 74 800 000,

…’

Article 4

The undertakings listed in Article 1 shall immediately bring to an end the single and continuous infringement referred to in that Article in so far as they have not already done so.

They shall also refrain from repeating any act or conduct having the same or similar object or effect.

Article 5

This Decision is addressed to:

…

[the applicants]

…’

II. Procedure and forms of order sought

60 By application lodged at the Court Registry on 1 June 2017, the applicants brought the present action.

61 The Commission lodged its defence at the Court Registry on 29 September 2017.

62 The applicants lodged their reply at the Court Registry on 15 December 2017.

63 The Commission lodged its rejoinder at the Court Registry on 2 March 2018.

64 On 24 April 2019, on a proposal from the Fourth Chamber, the Court decided, pursuant to Article 28 of its Rules of Procedure, to refer the present case to a chamber sitting in extended composition.

65 On 7 June 2019, in the context of the measures of organisation of procedure laid down in Article 89 of the Rules of Procedure, the Court put written questions to the parties. The parties replied within the prescribed period.

66 At the hearing on 26 June 2019, the parties presented oral argument and answered the questions put by the Court. On that occasion, the applicants produced a new document which the Court decided to place on the file while reserving the question of its admissibility.

67 By order of 31 July 2020, the Court (Fourth Chamber, Extended Composition), considering that it lacked sufficient information and that it was necessary to invite the parties to submit their observations concerning an argument which had not been debated between them, ordered the reopening of the oral part of the procedure pursuant to Article 113 of the Rules of Procedure.

68 The parties replied within the prescribed period to a series of questions put by the Court on 4 August 2020, and then submitted observations on their respective replies.

69 By decision of 6 November 2020, the Court again closed the oral part of the procedure.

70 The applicants claim, in essence, that the Court should:

– annul the contested decision, in its entirety or in part, in so far as it concerns them;

– in addition, or in the alternative, substantially reduce the fine imposed on them;

– order the Commission to pay the costs;

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

71 The Commission contends, in essence, that the Court should:

– dismiss the action;

– alter the amount of the fine imposed on the applicants by withdrawing the benefit of the general 50% reduction and of the general 15% reduction, should the Court find that the turnover from the sale of inbound freight services could not be included in the value of sales;

– order the applicants to pay the costs.

III. Law

72 In their action, the applicants put forward both a claim for annulment of the contested decision and a claim for a reduction in the amount of the fine imposed on them. The Commission, for its part, made an application seeking, in essence, an alteration of the amount of the fine imposed on the applicants, should the Court find that the turnover from the sale of inbound freight services could not be included in the value of sales.

A. The claim for annulment

73 (formatting help required) The applicants put forward five pleas in support of their claim for annulment. Those pleas allege:

– first, errors of law and fact and errors of assessment in connection with the finding of a single and continuous infringement;

– second, errors of law and fact and errors of assessment in relation to the refusal to pay commission;

– third, errors of law and fact and errors of assessment in connection with the examination of contacts within the WOW alliance;

– fourth, errors of law and fact and errors of assessment in connection with the finding that the applicants participated in the single and continuous infringement;

– fifth, errors of law and fact and errors of assessment in the imputing of liability for the single and continuous infringement to the applicants.

74 The Court considers it appropriate to examine, first of all, the second part of the first plea, which alleges a lack of jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes, then, the plea raised of its own motion, alleging the Commission’s lack of jurisdiction in the light of the EC Switzerland Air Transport Agreement to find and penalise an infringement on routes between airports in countries that are contracting parties to the EEA Agreement but are not EU Member States and airports in Switzerland (‘non-EU EEA Switzerland routes’) and, lastly, the three remaining parts of the first plea, and the second to fifth pleas.

1. The second part of the first plea, alleging lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services

75 This part of the plea, by which the applicants submit that the Commission lacked jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services, is essentially divided into three complaints. They allege, first, that Council Regulation (EC) No 411/2004 of 26 February 2004 repealing Regulation (EEC) No 3975/87 and amending Regulations (EEC) No 3976/87 and No 1/2003, in connection with air transport between the Community and third countries (OJ 2004 L 68, p. 1) are irrelevant, second, incorrect application of the implementation test and, third, incorrect application of the qualified effects test.

(a) The first complaint, alleging incorrect interpretation of Regulation No 411/2004

76 The applicants maintain that it is irrelevant that Article 101 TFEU is, as is apparent from recital 1041 of the contested decision, applicable to anticompetitive practices on EU third country routes ‘in both directions’. The applicability of Article 101 TFEU to inbound air transport is not itself in issue, as long as jurisdictional requirements are satisfied. In the passenger air transport sector, Article 101 TFEU is routinely applied to inbound traffic because most sales in the EU involve round trip flights. Conversely, as far as concerns freight services, flights are unidirectional and sales take place at the airport of origin.

77 The Commission disputes the applicants’ line of argument.

78 As a preliminary point, it should be recalled that Article 103(1) TFEU confers on the Council of the European Union the power to adopt the appropriate regulations or directives to give effect to the principles set out in Articles 101 and 102 TFEU.

79 In the absence of such legislation, Articles 104 and 105 TFEU apply and impose, in essence, the obligation to apply Articles 101 and 102 TFEU on the authorities of the Member States, and limit the Commission’s powers in this area to investigating, on application by a Member State or on its own initiative, and in conjunction with the competent authorities of the Member States which lend their assistance to it, cases of suspected infringement of the principles laid down in those provisions and, where appropriate, proposing appropriate measures to bring them to an end (judgment of 30 April 1986, Asjes and Others, 209/84 to 213/84, EU:C:1986:188, paragraphs 52 to 54 and 58).

80 On 6 February 1962, the Council adopted, on the basis of Article [103] TFEU, Regulation No 17, First Regulation implementing Articles [101] and [102 TFEU] (OJ, English Special Edition 1959-1962, p. 87).

81 However, Regulation No 141 of the Council of 26 November 1962 exempting transport from the application of Council Regulation No 17 (OJ, English Special Edition 1959-1962, p. 291) removed the whole of the transport sector from the scope of Regulation No 17 (judgment of 11 March 1997, Commission v UIC, C 264/95 P, EU:C:1997:143, paragraph 44). In those circumstances, in the absence of legislation such as that provided for in Article 103(1) TFEU, Articles 104 and 105 TFEU initially continued to apply to air transport (judgment of 30 April 1986, Asjes and Others, 209/84 to 213/84, EU:C:1986:188, paragraphs 51 and 52).

82 The consequence thereof was a division of powers between the Member States and the Commission for the application of Articles 101 and 102 TFEU as described in paragraph 79 above.

83 It was only in 1987 that the Council adopted a regulation on air transport pursuant to Article 103(1) TFEU. This was Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ 1987 L 374, p. 1), which conferred on the Commission the power to apply Articles 101 and 102 TFEU to international air transport between airports within the European Union, to the exclusion of international air transport between the airports of a Member State and those of a third country (judgment of 11 April 1989, Saeed Flugreisen and Silver Line Reisebüro, 66/86, EU:C:1989:140, paragraph 11). The latter remained subject to Articles 104 and 105 TFEU (see, to that effect, judgment of 12 December 2000, Aéroports de Paris v Commission, T 128/98, EU:T:2000:290, paragraph 55).

84 The entry into force, in 1994, of Protocol 21 to the EEA Agreement on the implementation of competition rules applicable to undertakings (OJ 1994 L 1, p. 181) extended those rules to the implementation of the competition rules laid down in the EEA Agreement, thus excluding the Commission from being able to apply Articles 53 and 54 of the EEA Agreement to international air transport between airports of States party to the EEA which are not members of the European Union and those of third countries.

85 Regulation No 1/2003 and Decision of the EEA Joint Committee No 130/2004 of 24 September 2004 amending Annex XIV (Competition), Protocol 21 (on the implementation of the competition rules applicable to undertakings) and Protocol 23 (on cooperation between surveillance authorities) to the EEA Agreement (OJ 2005 L 64, p. 57), which subsequently incorporated that regulation into the EEA Agreement, initially left that scheme intact. Article 32(c) of that regulation provided that the latter ‘[did not] apply to air transport between [European Union] airports and third countries’.

86 Regulation No 411/2004, Article 1 of which repealed Regulation No 3975/87 and Article 3 of which repealed Article 32(c) of Regulation No 1/2003, conferred on the Commission the power to apply Articles 101 and 102 TFEU to EU third country routes as from 1 May 2004.

87 Decision of the EEA Joint Committee No 40/2005 of 11 March 2005 amending Annex XIII (Transport) and Protocol 21 (on the implementation of competition rules applicable to undertakings) to the EEA Agreement (OJ 2005 L 198, p. 38) incorporated Regulation No 411/2004 into the EEA Agreement, conferring on the Commission the power to apply Articles 53 and 54 of the EEA Agreement to non EU EEA third country routes from 19 May 2005.

88 In the present case, the applicants do not dispute that, as is apparent from recital 1041 of the contested decision, it can be inferred from recitals 2 and 3 of Regulation No 411/2004 that Article 101 TFEU was applicable to EU third country routes ‘in both directions’. Nor do the applicants claim that Article 53 of the EEA Agreement would remain inapplicable to inbound non-EU EEA third country routes following the entry into force of Decision of the EEA Joint Committee No 40/2005.

89 It follows that Regulation No 411/2004 applies Article 101 TFEU and Article 53 of the EEA Agreement as regards inbound routes. The scope of Regulation No 411/2004 is not therefore irrelevant for the purposes of delineating that jurisdiction.

(b) The second and third complaints, alleging, respectively, an error in the application of the implementation test and an error in the application of the qualified effects test

90 It should be observed that, as the applicants claim, as regards conduct adopted outside the territory of the EEA, the mere existence of directives or regulations referred to in Article 103(1) TFEU is not sufficient to establish the Commission’s jurisdiction under public international law to find and punish an infringement of Article 101 TFEU or Article 53 of the EEA Agreement.

91 The Commission must also be able to establish that jurisdiction on the basis of the implementation test or the qualified effects test (see, to that effect, judgments of 6 September 2017, Intel v Commission, C 413/14 P, EU:C:2017:632, paragraphs 40 to 47, and of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T 441/14, EU:T:2018:453, paragraphs 95 to 97).

92 Those tests are alternative and not cumulative (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T 441/14, EU:T:2018:453, paragraph 98; see also, to that effect, judgment of 6 September 2017, Intel v Commission, C 413/14 P, EU:C:2017:632, paragraphs 62 to 64).

93 In recitals 1043 to 1046 of the contested decision, the Commission relied both on the implementation test and on the qualified effects test as a basis under public international law for its jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes.

94 Since the applicants allege an error in the application of each of those two tests, the Court considers it appropriate to examine first of all whether the Commission was entitled to rely on the qualified effects test. In accordance with the case-law cited in paragraph 92 above, only if this was not the case will it be necessary to ascertain whether the Commission could rely on the implementation test.

95 The applicants submit, in essence, that the Commission cannot derive from the qualified effects test jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes. The Commission has failed to provide the necessary factual evidence to support jurisdiction on that basis. It merely relies, in recital 1045 of the contested decision, on the increased costs of air transport to the EEA and the higher prices of imported goods that might have resulted from those costs. This assumes that the conduct at issue had a significant effect on pricing of air transport services, which the applicants and other carriers vigorously contested in the administrative procedure. The Commission merely rejected their arguments by stating, in recital 917 of the contested decision, that it made no assessment of anticompetitive effects.

96 At the stage of the reply, the applicants add that an increase in the price of imported goods is an economic harm, not a restriction of competition, and cannot therefore constitute a ‘qualified effect’, which must, according to the case-law, take the form of a restriction of competition.

97 The applicants also claim that the ground set out in recital 1046 of the contested decision, based on the global nature of the cartel at issue, is unclear and irrelevant. In the absence of any proper relevant market definition in the contested decision and of any assertion that the relevant market was global, it is not entirely clear why that ground might be a basis on which the Commission could assert jurisdiction over pricing in markets outside the EU where neither an implementation test nor the qualified effects test is satisfied. In support of their arguments, the applicants rely on the judgment of 27 February 2014, InnoLux v Commission (T 91/11, EU:T:2014:92, paragraph 59).

98 At the stage of the reply, the applicants add, in essence, that the Commission cannot, by relying on recital 1046 of the contested decision and on the judgment of 6 September 2017, Intel v Commission (C 413/14 P, EU:C:2017:632, paragraph 50), rely on the fact that the coordination of pricing on inbound routes was an integral part of the single and continuous infringement in order to establish its jurisdiction.

99 First, the contested decision expressly states, in recital 917, that it makes no assessment of anticompetitive effects.

100 Secondly, the Commission is required to satisfy the requirement derived from the specific wording of Article 101 TFEU, according to which agreements or concerted practices are contrary to that provision only if they have as their object or effect the restriction of competition within the internal market. The restriction of competition in a pricing case takes place at the point of sale, which for inbound freight services is outside the internal market.

101 Thirdly, the application of paragraph 50 of the judgment of 6 September 2017, Intel v Commission (C 413/14 P, EU:C:2017:632), is more complex in the context of Article 101 TFEU than in the context of Article 102 TFEU. In the context of an Article 102 TFEU case involving exclusionary abuse, the anticompetitive effect is the maintenance or increase of market power on the part of an undertaking with a dominant position in the European Union. An anticompetitive scheme or plan with this objective is a single abuse and the overall strategy in this situation creates a link between all the conduct and the anticompetitive effect. Conversely, in an Article 101 TFEU case, the anticompetitive effect is a restriction of competition within the internal market. In determining whether conduct forming part of a single and continuous infringement has this actual effect, it may make sense to look at the aggregate effects of conduct in cases where a single and continuous infringement in an Article 101 TFEU case involves an overall strategy or conduct in multiple markets that is complementary. Conversely, where, as in the present case, a single and continuous infringement is based on a common object and associative links with no finding of an explicit overall plan or strategy, this approach does not work. Otherwise, it would be possible to apply Article 101 TFEU to pricing on routes wholly outside the European Union.

102 The Commission disputes the applicants’ line of argument.

103 In the contested decision, the Commission relied, in essence, on three separate grounds in order to find that the qualified effects test was satisfied in the present case.

104 The first two grounds are set out in recital 1045 of the contested decision. As the Commission confirmed in reply to the written and oral questions put by the Court, those grounds concern the effects of coordination in relation to inbound freight services taken in isolation. The first ground is that the ‘increased costs of air transport to the EEA, and consequently higher prices of imported goods, [were] by their very nature liable to have effects on consumers in the EEA’. The second ground concerns the effects of coordination in relation to inbound freight services ‘also on the provision of [freight] services by other carriers within the EEA, between the different hub airports used by carriers from third countries in the EEA and airports of destination of those shipments in the EEA to which the carrier from the third country does not fly’.

105 The third ground is set out in recital 1046 of the contested decision and concerns, as is apparent from the Commission’s answers to the written and oral questions put by the Court, the effects of the single and continuous infringement taken as a whole.

106 The Court considers it appropriate to examine both the effects of coordination in relation to inbound freight services taken in isolation and the effects of the single and continuous infringement taken as a whole, starting with the former.

(1) The effects of coordination in relation to inbound freight services taken in isolation

107 It is appropriate to examine, first of all, the merits of the first ground on which the Commission’s conclusion that the qualified effects test is satisfied in the present case (‘the effect at issue’) is based.

108 In that regard, it should be recalled that, as is apparent from recital 1042 of the contested decision, the qualified effects test allows the application of the EU and EEA competition rules to be justified under public international law when it is foreseeable that the conduct at issue will have an immediate and substantial effect in the internal market or within the EEA (see, to that effect, judgment of 6 September 2017, Intel v Commission, C 413/14 P, EU:C:2017:632, paragraph 49; see also, to that effect, judgment of 25 March 1999, Gencor v Commission, T 102/96, EU:T:1999:65, paragraph 90).

109 In the present case, the applicants dispute the relevance of the effect at issue (see paragraphs 112 to 128 below), its foreseeability (see paragraphs 129 to 144 below), its substantiality (see paragraphs 145 to 155 below) and its immediacy (see paragraphs 156 to 161 below).

(i) The relevance of the effect at issue

110 It is apparent from the case-law that the fact that an undertaking participating in an agreement or concerted practice is situated in a third country does not prevent the application of Article 101 TFEU and Article 53 of the EEA Agreement, if that agreement or practice is operative, respectively, in the internal market or within the EEA (see, to that effect, judgment of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 11).

111 The purpose of applying the qualified effects test is precisely to prevent conduct which, while not adopted in the territory of the EEA, has anticompetitive effects liable to have an impact in the internal market or within the EEA (see, to that effect, judgment of 6 September 2017, Intel v Commission, C 413/14 P, EU:C:2017:632, paragraph 45).

112 That test does not require it to be established that the conduct at issue had any anticompetitive effect which actually occurred in the internal market or within the EEA. On the contrary, according to the case-law, it is sufficient to take account of the probable effects of that conduct on competition (see, to that effect, judgment of 6 September 2017, Intel v Commission, C 413/14 P, EU:C:2017:632, paragraph 51).

113 It is for the Commission to ensure the protection of competition in the internal market or within the EEA against threats to its effective functioning.

114 Where conduct has been found by the Commission, as in the present case, to reveal a degree of harmfulness to competition in the internal market or within the EEA such that it could be classified as a restriction of competition ‘by object’ within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement, the application of the qualified effects test also cannot require, contrary to what the applicants suggest, the demonstration of the actual effects which classification of conduct as a restriction of competition ‘by effect’ within the meaning of those provisions presupposes.

115 In that regard, it should be recalled that the qualified effects test is enshrined in the wording of Article 101 TFEU and Article 53 of the EEA Agreement, which are intended to prevent agreements and practices which limit competition within the internal market and within the EEA, respectively. Those provisions prohibit agreements and practices of undertakings which have as their object or effect the prevention, restriction or distortion of competition ‘within the internal market’ and ‘within the territory covered by [the EEA Agreement]’, respectively (see, to that effect, judgment of 6 September 2017, Intel v Commission, C 413/14 P, EU:C:2017:632, paragraph 42).

116 It is settled case-law that anticompetitive object and anticompetitive effect are not cumulative but alternative conditions for assessing whether conduct falls within the scope of the prohibitions laid down in Article 101 TFEU and Article 53 of the EEA Agreement (see, to that effect, judgment of 4 June 2009, T-Mobile Netherlands and Others, C 8/08, EU:C:2009:343, paragraph 28 and the case-law cited).

117 It follows that, as the Commission observed in recital 917 of the contested decision, there is no need to take account of the actual effects of the conduct at issue once its anticompetitive object has been established (see, to that effect, judgments of 13 July 1966, Consten and Grundig v Commission, 56/64 and 58/64, EU:C:1966:41, p. 342, and of 6 October 2009, GlaxoSmithKline Services and Others v Commission and Others, C 501/06 P, C 513/06 P, C 515/06 P and C 519/06 P, EU:C:2009:610, paragraph 55).

118 In those circumstances, interpreting the qualified effects test as the applicants appear to advocate, as requiring proof of the actual effects of the conduct at issue even where there is a restriction of competition ‘by object’, would amount to making the Commission’s jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement subject to a condition which has no basis in the wording of those provisions.

119 The applicants cannot therefore validly claim that the Commission erred in finding that the qualified effects test was satisfied, even though it had, in recitals 917, 1190 and 1277 of the contested decision, stated that it was not required to make any assessment of the anticompetitive effects of the conduct at issue in the light of the anticompetitive object thereof. Nor can the applicants deduce from those recitals that the Commission did not carry out any analysis of the effects produced by that conduct in the internal market or within the EEA for the purposes of applying that test. A fortiori, they cannot rely on an economic analysis to show that ‘such effects could not be assumed in the [cargo] industry’.

120 In recital 1045 of the contested decision, the Commission considered in essence that the single and continuous infringement, in so far as it related to inbound routes, was liable to increase the amount of the surcharges and, consequently, the total price of inbound freight services and that freight forwarders had passed on that additional cost to shippers based in the EEA, who had had to pay a higher price for the goods they had purchased than would have been charged in the absence of that infringement.

121 Contrary to the applicants’ submission, it cannot be held that that effect is irrelevant for the purposes of applying the qualified effects test, on the ground that it is an economic harm rather than a restriction of competition.

122 The applicants are incorrect in claiming that the conduct at issue, in so far as it relates to inbound routes, was not capable of restricting competition in the EEA, on the ground that that conduct took place only in third countries where the freight forwarders who sourced inbound freight services from the incriminated carriers are established.

123 In that regard, it should be noted that the qualified effects test must be applied in the light of the economic and legal context of the conduct at issue (see, to that effect, judgment of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 13).

124 In the present case, it is apparent from recitals 14, 17 and 70 of the contested decision and from the parties’ replies to the Court’s measures of organisation of procedure that the carriers sell their freight services exclusively or almost exclusively to freight forwarders. As regards inbound freight services, the sale takes place at the origin of the routes in question, outside the EEA, where those freight forwarders are established. It is apparent from the application that, between 1 May 2004 and 14 February 2006, the applicants achieved none of their sales of inbound freight services to customers based in the EEA.

125 It must, however, be observed that, although freight forwarders purchase those services, they do so in particular as intermediaries, in order to consolidate them into a package of services the purpose of which is, by definition, to organise the integrated transport of goods to the territory of the EEA on behalf of shippers. As is apparent from recital 70 of the contested decision, the latter may in particular be the purchasers or owners of the goods transported. It is therefore at the very least likely that they are established in the EEA.

126 It follows that, provided that the freight forwarders pass any additional costs resulting from the cartel at issue on to the price of their service packages, it is in particular on competition that occurs between freight forwarders in order to attract those shippers as customers that the single and continuous infringement, in so far as it concerns inbound routes, is liable to have an impact and, consequently, it is in the internal market or within the EEA that the effect at issue is liable to materialise.

127 Consequently, the additional cost which shippers might have had to pay and the higher prices of goods imported into the EEA which may have resulted are among the effects produced by the conduct at issue on which the Commission was entitled to rely for the purposes of applying the qualified effects test.

128 In accordance with the case-law cited in paragraph 108 above, the question is therefore whether that effect has the required foreseeability, substantiality and immediacy.

(ii) The foreseeability of the effect at issue

129 The requirement of foreseeability seeks to ensure legal certainty by guaranteeing that the undertakings concerned may not be penalised on account of effects which might indeed result from their conduct but which they could not reasonably expect to occur (see, to that effect, Opinion of Advocate General Kokott in Otis Gesellschaft and Others, C 435/18, EU:C:2019:651, point 83).

130 Effects the occurrence of which the members of the cartel at issue ought reasonably to take into consideration on the basis of practical experience thus satisfy the requirement of foreseeability, unlike effects which result from an entirely extraordinary train of events and, therefore, ensue via an atypical causal chain (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C 557/12, EU:C:2014:45, point 42).

131 It is apparent from recitals 846, 909, 1199 and 1208 of the contested decision that what is at issue in the present case is collusive horizontal price fixing behaviour, experience of which shows that it leads inter alia to price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (see, to that effect, judgment of 11 September 2014, CB v Commission, C 67/13 P, EU:C:2014:2204, paragraph 51).

132 It is also apparent from recitals 846, 909, 1199 and 1208 of the contested decision that the conduct related to the FSC, the SSC and the refusal to pay commission.

133 In the present case, it was therefore foreseeable for the incriminated carriers that the horizontal fixing of the FSC and the SSC would lead to an increase in the level of the FSC and the SSC. As is apparent from recitals 874, 879 and 899 of the contested decision, the refusal to pay commission was liable to reinforce such an increase. It amounted to a concerted refusal to grant freight forwarders rebates on surcharges, by which the incriminated carriers ‘ensured that pricing uncertainty, which could have arisen from competition on commission payments [in the context of negotiations with freight forwarders], remained suppressed’ (recital 874 of that decision) and thus aimed to eliminate competition in respect of surcharges (recital 879 of that decision).

134 It is apparent from recital 17 of the contested decision that the price of freight services is made up of rates and surcharges, including the FSC and SSC. Unless it were considered that an increase in the FSC and the SSC would, as a result of a sufficiently probable ‘waterbed effect’, be offset by a corresponding reduction in rates and other surcharges, such an increase was, in principle, liable to lead to an increase in the total price of inbound freight services. The applicants have failed to demonstrate that a ‘waterbed effect’ was so probable as to render the effect at issue unforeseeable.

135 In those circumstances, the members of the cartel at issue could reasonably have foreseen that the single and continuous infringement would have the effect, in so far as it concerned inbound freight services, of increasing the price of freight services on inbound routes.

136 The question is therefore whether it was foreseeable for the incriminated carriers that freight forwarders would pass on such additional costs to their own customers, namely shippers.

137 In that regard, it is apparent from recitals 14 and 70 of the contested decision that the price of freight services constitutes an input for freight forwarders. It is a variable cost, the increase in which, in principle, has the effect of increasing the marginal cost in relation to which the freight forwarders determine their own prices.

138 The applicants do not put forward any evidence demonstrating that the circumstances of the present case were not conducive to passing on the additional costs resulting from the single and continuous infringement on inbound routes to shippers downstream.

139 In those circumstances, it was reasonably foreseeable for the incriminated carriers that freight forwarders would pass on such additional costs to shippers through an increase in the price of freight-forwarding services.

140 As is apparent from recitals 70 and 1031 of the contested decision, the cost of goods the integrated transportation of which is generally organised by freight forwarders on behalf of shippers incorporates the price of freight-forwarding services, and in particular the cost of freight services, which are a constituent element thereof.

141 In the light of the foregoing, it was therefore foreseeable for the incriminated carriers that the single and continuous infringement would have the effect, in so far as it related to inbound routes, of increasing the price of imported goods.

142 For the reasons set out in paragraph 125 above, it was equally foreseeable for the incriminated carriers that, as is apparent from recital 1045 of the contested decision, that effect would occur in the EEA.

143 Since the effect at issue was part of the normal course of events and was economically rational, it was, moreover, not necessary for the applicants to operate on the market for importing goods or the downstream resale market for those goods in order to be able to foresee it.

144 It must therefore be concluded that the Commission has established to the requisite standard that the effect at issue was foreseeable.

(iii) The substantiality of the effect at issue

145 The assessment of whether the effects produced by the conduct at issue are substantial must be carried out in the light of all the relevant circumstances of the case. Those circumstances include, inter alia, the duration, nature and scope of the infringement. Other circumstances, such as the size of the undertakings which participated in that conduct, may also be relevant (see, to that effect, judgments of 9 September 2015, Toshiba v Commission, T 104/13, EU:T:2015:610, paragraph 159, and of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T 441/14, EU:T:2018:453, paragraph 112).

146 Where the effect under consideration relates to an increase in the price of a finished product or service derived from or containing the cartelised service, the proportion of the price of the finished product or service represented by the cartelised service may also be taken into account.

147 In the present case, in the light of all the relevant circumstances, it must be held that the effect at issue, relating to the increase in the price of goods imported into the EEA, is substantial.

148 In the first place, it is apparent from recital 1146 of the contested decision that the single and continuous infringement lasted 21 months in so far as it concerned EU third country routes and 8 months in so far as it concerned non-EU EEA third country routes. It is apparent from recitals 1215 and 1217 of that decision that this is also the duration of all the incriminated carriers’ participation, with the exception of Lufthansa Cargo and Swiss.

149 In the second place, as regards the scope of the infringement, it is apparent from recital 889 of the contested decision that the FSC and the SSC were ‘measures of general application that [were] not route specific’ and ‘were intended to be applied on all routes, on a worldwide basis, including routes to … the EEA’.

150 In the third place, as regards the nature of the infringement, it is apparent from recital 1030 of the contested decision that the object of the single and continuous infringement was to restrict competition between the incriminated carriers, inter alia on EEA-third country routes. In recital 1208 of that decision, the Commission concluded that the ‘fixing of various elements of the price, including particular surcharges, constitute[d] one of the most harmful restrictions of competition’ and therefore found that the single and continuous infringement merited the application of a gravity factor ‘at the higher end of the scale’ provided for in the 2006 Guidelines.

151 For the sake of completeness, as regards the proportion of the price of the cartelised service in the product or service which is derived from it or contains it, it should be noted that, contrary to what the applicants submit, during the infringement period the surcharges represented a significant proportion of the total price of freight services.

152 It is thus apparent from a letter of 8 July 2005 from the Hong Kong Association of Freight Forwarding & Logistics (HAFFA) to the Chairman of the Cargo Sub-Committee (‘the CSC’) of the Hong Kong Board of Airline Representatives (‘the BAR’) that the surcharges represent a ‘very significant part’ of the total price of the air waybills which the freight forwarders were required to pay. Similarly, in the applicants’ reply to the Commission’s request for information of 26 January 2009, it is stated that the surcharges represented approximately 14.5% of the price of freight services on the applicants’ inbound routes between 1 April 2004 and 31 March 2005.

153 As is apparent from recital 1031 of the contested decision, the price of freight services was itself a ‘significant cost element of the goods transported that has an impact on their sale’.

154 Again for the sake of completeness, as regards the size of the undertakings that participated in the conduct at issue, it is apparent from recital 1209 of the contested decision that the combined market share of the incriminated carriers on the ‘worldwide market’ was 34% in 2005 and was ‘at least as high’ for freight services provided on EEA-third country routes, which included both outbound and inbound routes. Moreover, during the infringement period, the applicants themselves achieved a significant turnover on the inbound routes, in excess of EUR 229 000 000 between 1 April 2004 and 31 March 2005.

155 It must therefore be concluded that the Commission has established to the requisite standard that the effect at issue was substantial.

(iv) The immediacy of the effect at issue

156 The requirement of immediacy of the effects produced by the conduct at issue relates to the causal link between the conduct at issue and the effect under consideration. The purpose of that requirement is to ensure that the Commission cannot, in order to justify its jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement, rely on all possible effects, however remote, for which that conduct might have been the cause in the sense of a conditio sine qua non (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C 557/12, EU:C:2014:45, points 33 and 34).

157 The direct causal link must not however be regarded as being the same as a single causal link, which would mean always finding as a matter of course that the chain of causality is broken where the action of a third party was a contributory cause of the effects at issue (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C 557/12, EU:C:2014:45, points 36 and 37).

158 In the present case, the intervention of freight forwarders in respect of which it was foreseeable that, with complete independence, they would pass on to shippers the additional costs that they had had to pay is indeed capable of having contributed to the occurrence of the effect at issue. However, that intervention was not in itself such as to break the causal chain between the conduct at issue and that effect and thus deprive it of its immediacy.

159 On the contrary, where it is not wrongful, but objectively results from the cartel at issue, in accordance with the normal functioning of the market, such an intervention does not break the causal chain (see, to that effect, judgment of 14 December 2005, CD Cartondruck v Council and Commission, T 320/00, not published, EU:T:2005:452, paragraphs 172 to 182), but continues it (see, to that effect, Opinion of Advocate General Kokott in Kone and Others, C 557/12, EU:C:2014:45, point 37).

160 In the present case, the applicants have not established, or even alleged, that the foreseeable passing on of the additional costs to shippers located in the EEA is wrongful or extraneous to the normal functioning of the market.

161 It follows that the effect at issue has the required immediacy.

162 It follows from the foregoing that the effect at issue is sufficiently foreseeable, substantial and immediate and that the first ground on which the Commission relied in order to conclude that the qualified effects test was satisfied is well founded. It must therefore be held that the Commission could, without making any error, find that that test was satisfied as regards coordination in relation to inbound freight services taken in isolation, without there being any need to examine the merits of the second ground relied on in recital 1045 of the contested decision.

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

163 It should be noted at the outset that there is nothing to prevent an assessment of whether the Commission has the necessary jurisdiction to apply, in each case, EU competition law in the light of the conduct of the undertaking or undertakings in question, viewed as a whole (see, to that effect, judgment of 6 September 2017, Intel v Commission, C 413/14 P, EU:C:2017:632, paragraph 50).

164 According to the case-law, Article 101 TFEU may be applied to practices and agreements that serve the same anticompetitive objective, provided that it is foreseeable that, taken together, they will have immediate and substantial effects in the internal market. Undertakings cannot be allowed to avoid the application of the EU competition rules by combining a number of types of conduct that pursue the same objective, each of which, taken on its own, is not capable of producing an immediate and substantial effect in that market, but which, taken together, are capable of producing such an effect (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T 441/14, EU:T:2018:453, paragraph 106).

165 The Commission may thus base its jurisdiction to apply Article 101 TFEU to a single and continuous infringement as found in the decision at issue on the foreseeable, immediate and substantial effects of that infringement in the internal market (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission, T 441/14, EU:T:2018:453, paragraph 105).

166 Contrary to the applicants’ submission, it does not follow from that case-law that its scope in cases involving the application of Article 101 TFEU or Article 53 of the EEA Agreement is restricted to situations in which there is ‘an explicit overall plan or strategy’, but is not applicable in a case such as the present one, in which the single infringement ‘is based on a common object and associative links’.

167 Those considerations apply, mutatis mutandis, to Article 53 of the EEA Agreement.

168 In recital 869 of the contested decision, the Commission characterised the conduct at issue as a single and continuous infringement, including in so far as it concerned inbound freight services. In so far as the applicants contest that characterisation generally, as well as the finding that there was a single anticompetitive objective of restricting competition within the EEA on which that characterisation is based, its arguments will be examined in connection with the fourth part of the first plea, which relates to that issue.

169 In recital 1046 of the contested decision, the Commission, as is apparent from its answers to the written and oral questions put by the Court, examined the effects of that infringement taken as a whole. It thus found, inter alia, that its investigation had revealed ‘a cartel [that] was implemented globally’, whose ‘arrangements concerning inbound routes formed an integral part of the single and continuous infringement of Article 101 of the TFEU and Article 53 of the EEA Agreement’. It added that the ‘uniform application of the surcharges on a world wide scale was a key element of the cartel [at issue]’. As the Commission stated in reply to the written questions put by the Court, the uniform application of the surcharges forms part of an overall strategy designed to neutralise the risk that the freight forwarders could circumvent the effects of that cartel by opting for indirect routes which would not be subject to coordinated surcharges to transport goods from the point of origin to the point of destination. The reason for this is, as is apparent from recital 72 of the contested decision, that ‘there is not the same time sensitivity associated with [freight] transport as there is with passenger transport’, so that freight ‘may be routed with a higher number of stopovers’ and that, as a result, indirect routes are substitutable for direct routes.

170 In those circumstances, the Commission is correct in contending that prohibiting it from applying the qualified effects test to the conduct at issue taken as a whole might lead to an artificial fragmentation of comprehensive anticompetitive conduct, capable of affecting the market structure within the EEA, into a collection of separate forms of conduct which might escape, in whole or in part, the European Union’s jurisdiction (see, to that effect, judgment of 6 September 2017, Intel v Commission, C 413/14 P, EU:C:2017:632, paragraph 57).

171 It must therefore be held that the Commission was entitled, in recital 1046 of the contested decision, to examine the effects of the single and continuous infringement taken as a whole.

172 As regards the agreements and practices, first, which had the object of restricting competition at least in the European Union, the EEA and Switzerland (recital 903 of that decision), second, which brought together carriers with significant market shares (recital 1209 of that decision) and, third, a significant part of which related to intra-EEA routes for a period of more than six years (recital 1146 of that decision), there can be little doubt that it was foreseeable that, taken as a whole, the single and continuous infringement would produce immediate and substantial effects in the internal market or within the EEA.

173 None of the other arguments put forward by the applicants is capable of calling that conclusion into question.

174 In the first place, it should be noted that it is to no avail that the applicants rely on paragraph 59 of the judgment of 27 February 2014, InnoLux v Commission (T 91/11, EU:T:2014:92). That paragraph merely refers to the principles governing the application of the implementation test and does not lay down any limitation on jurisdiction to apply Article 101 TFEU to a single and continuous infringement as found in the decision at issue on the basis of its foreseeable, immediate and substantial effects within the internal market or in the EEA.

175 In the second place, the argument that the Commission expressly stated that it made no assessment of anticompetitive effects must be rejected for reasons similar to those set out in paragraphs 112 to 120 above.

176 In the third place, as regards the argument that competition for inbound freight services operates outside the internal market, it is sufficient (i) to refer to paragraphs 121 to 126 above and (ii) to recall that what is at issue here is not only coordination in relation to inbound freight services, but the single and continuous infringement taken as a whole.

177 It follows that the Commission was also entitled to find, in recital 1046 of the contested decision, that the qualified effects test was satisfied as regards the single and continuous infringement taken as a whole.

178 Since the Commission has thus established to the requisite standard that it was foreseeable that the conduct at issue would produce a substantial and immediate effect in the EEA, the present complaint must be rejected and, consequently, the present part of the plea must be rejected in its entirety, without it being necessary to examine the complaint alleging errors in the application of the implementation test.

2. The plea, raised of the Court’s own motion, alleging a lack of jurisdiction on the part of the Commission, in the light of the EC Switzerland Air Transport Agreement, to find and penalise an infringement of Article 53 of the EEA Agreement on non-EU EEA Switzerland routes

179 As a preliminary point, it should be recalled that it is for the Courts of the European Union to examine of their own motion the plea, which is a matter of public policy, alleging a lack of jurisdiction on the part of the author of the contested measure (see, to that effect, judgment of 13 July 2000, Salzgitter v Commission, C 210/98 P, EU:C:2000:397, paragraph 56).

180 According to settled case-law, the Courts of the European Union cannot, as a general rule, base their decisions on a plea raised of their own motion – even one involving a matter of public policy – without first having invited the parties to submit their observations in that regard (see judgment of 17 December 2009, Review M v EMEA, C 197/09 RX II, EU:C:2009:804, paragraph 57 and the case-law cited).

181 In the present case, the Court takes the view that it has a duty to examine of its own motion whether the Commission exceeded its own jurisdiction, under the EC Switzerland Air Transport Agreement, as regards non-EU EEA Switzerland routes, by finding, in Article 1(3) of the contested decision, that there had been an infringement of Article 53 of the EEA Agreement on non-EU EEA third country routes, and invited the parties to submit their observations in that regard in the context of measures of organisation of procedure.

182 The applicants claim that, in Article 1(3) of the contested decision, the Commission found an infringement of Article 53 of the EEA Agreement on non-EU EEA Switzerland routes; they submit that this is confirmed by recitals 1194 and 1241 of that decision and the Commission’s request for information of 26 January 2009, the Commission’s decision-making practice and air transport legislation. They add that, in so doing, the Commission infringed Article 11(2) of the EC Switzerland Air Transport Agreement and thus exceeded the limits of its jurisdiction. According to the applicants, those illegalities justify the annulment of Article 1(3) of the contested decision. Partial annulment of that paragraph, the wording of which would not be altered, would create significant legal uncertainty, in particular for ‘follow-up’ actions for damages. That paragraph would then continue to form part of the EU legal order and could enable third parties to claim damages in connection with non-EU EEA-Switzerland routes.

183 The Commission replies that the reference in Article 1(3) of the contested decision to ‘routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and airports in third countries’ cannot be interpreted as including non-EU EEA Switzerland routes. In its view, the concept of ‘third country’ within the meaning of that article excludes the Swiss Confederation.

184 The Commission adds that, if it were to be held that it found the applicants liable for an infringement of Article 53 of the EEA Agreement on non-EU EEA Switzerland routes in Article 1(3) of the contested decision, it would have exceeded the limits which Article 11(2) of the EC Switzerland Air Transport Agreement imposes on its jurisdiction.

185 The Commission further contends that the contested decision should not be annulled in its entirety if Article 1(3) of the contested decision were to be interpreted as meaning that the Commission declared that it had jurisdiction to find and penalise an infringement of Article 53 of the EEA Agreement on non-EU EEA Switzerland inbound and outbound routes. In the Commission’s view, such a finding is separable from the remainder of that decision.

186 It is necessary to determine whether, as the applicants maintain, the Commission found an infringement of Article 53 of the EEA Agreement on non-EU EEA Switzerland routes in Article 1(3) of the contested decision and, if so, whether it thus exceeded the limits of its jurisdiction under the EC Switzerland Air Transport Agreement.

187 In that regard, it should be recalled that the principle of effective judicial protection is a general principle of EU law now enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). That principle, which corresponds, in EU law, to Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, requires that the operative part of a decision by which the Commission finds 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 the imputation of liability and the imposition of those penalties, as set out in the wording of that operative part (see judgment of 16 December 2015, Martinair Holland v Commission, T 67/11, EU:T:2015:984, paragraph 31 and the case-law cited).

188 It is in the operative part of its decisions that the Commission must indicate the nature and extent of the infringements which it penalises. As regards in particular the scope and nature of the infringements penalised, it is thus in principle 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 (see judgment of 16 December 2015, Martinair Holland v Commission, T 67/11, EU:T:2015:984, paragraph 32 and the case-law cited).

189 In Article 1(3) of the contested decision, the Commission found that the applicants had ‘infringed Article 53 of the EEA Agreement as regards routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and airports in third countries’ from 19 May 2005 to 14 February 2006. It neither expressly included non-EU EEA Switzerland routes among those routes nor expressly excluded them.

190 It is therefore necessary to ascertain whether the Swiss Confederation falls within the ‘third countries’ referred to in Article 1(3) of the contested decision.

191 In that regard, it should be noted that Article 1(3) of the contested decision distinguishes between ‘countries that are Contracting Parties of the EEA Agreement but not Member States’ and third countries. It is true that, as the applicants point out, the Swiss Confederation is not party to the EEA Agreement and is therefore among the third countries to that agreement.

192 It must however be borne in mind that, given the requirements of unity and consistency in the EU legal order, the same terms used in the same measure must be presumed to have the same meaning.

193 In Article 1(2) of the contested decision, the Commission found an infringement of Article 101 TFEU on ‘routes between airports within the European Union and airports outside the EEA’. That concept does not include airports in Switzerland, even though the Swiss Confederation is not a party to the EEA Agreement and its airports must therefore formally be regarded as being ‘outside the EEA’ or, in other words, in a third country to that agreement. Those airports form the subject of Article 1(4) of the contested decision, which finds an infringement of Article 8 of the EC Switzerland Air Transport Agreement on ‘routes between airports within the European Union and airports in Switzerland’.

194 In accordance with the principle recalled in paragraph 192 above, it must therefore be presumed that the terms ‘airports in third countries’ used in Article 1(3) of the contested decision have the same meaning as the terms ‘airports outside the EEA’ used in Article 1(2) thereof and, consequently, exclude airports in Switzerland.

195 In the absence of the slightest indication in the operative part of the contested decision that the Commission intended to give a different meaning to the concept of ‘third countries’ referred to in Article 1(3) of the contested decision, it must be concluded that the concept of ‘third countries’ in Article 1(3) thereof excludes the Swiss Confederation.

196 It cannot therefore be considered that the Commission found the applicants liable for an infringement of Article 53 of the EEA Agreement on non-EU EEA Switzerland routes in Article 1(3) of the contested decision.

197 Since the operative part of the contested decision does not give rise to any doubts, it is thus solely for the sake of completeness that the Court adds that the grounds of that decision do not contradict that conclusion.

198 In recital 1146 of the contested decision, the Commission stated that the ‘anticompetitive arrangements’ described by it infringed Article 101 TFEU from 1 May 2004 to 14 February 2006 ‘as regards air transport between airports within the [European Union] and airports outside the EEA’. In the footnote relating thereto (1514), the Commission specified the following: ‘For the purpose of this Decision, “airports outside the EEA” include airports in countries other than in [the Swiss Confederation] and in Contracting Parties to the EEA Agreement’.

199 Admittedly, when it describes the scope of the infringement of Article 53 of the EEA Agreement in recital 1146 of the contested decision, the Commission does not refer to the concept of ‘airports outside the EEA’, but to that of ‘airports in third countries’. It cannot however be inferred therefrom that the Commission intended to give a different meaning to the concept of ‘airports outside the EEA’ for the purposes of applying Article 101 TFEU and to that of ‘airports in third countries’ for the purposes of applying Article 53 of the EEA Agreement. On the contrary, the Commission used those two expressions interchangeably in the contested decision. Thus, in recital 824 of the contested decision, the Commission stated that it ‘[would] not apply Article 101 of the TFEU to anticompetitive agreements and practices concerning air transport between EU airports and airports in third countries that took place before 1 May 2004’. Similarly, in recital 1222 of that decision, regarding the end of SAS Consortium’s participation in the single and continuous infringement, the Commission refers to its jurisdiction under those provisions ‘on routes between the [European Union] and third countries as well as routes between Iceland, Norway and Liechtenstein and countries outside the EEA’.

200 The grounds of the contested decision thus confirm that the concepts of ‘airports in third countries’ and ‘airports outside the EEA’ have the same meaning. In accordance with the definition clause in footnote 1514, it must therefore be considered that both exclude airports in Switzerland.

201 Contrary to what the applicants claim, recitals 1194 and 1241 of the contested decision do not militate in favour of another solution. Admittedly, in recital 1194 of that decision, the Commission referred to ‘EEA – third country routes, except routes between the [European Union] and Switzerland’. Similarly, in recital 1241 of that decision, in the context of the ‘determination of the value of sales on third country routes’, the Commission reduced by 50% the basic amount for ‘EEA – third country routes, except routes between the [European Union] and Switzerland where the Commission is acting under the [EC Switzerland Air Transport Agreement]’. It could be considered that, as the applicants in essence submit, if it took care to insert in those recitals the words ‘except routes between the [European Union] and Switzerland’, it is because it considered the Swiss Confederation to be covered by the concept of ‘third country’ in so far as EEA third country routes were concerned.

202 The Commission also acknowledged that it was possible that it had ‘inadvertently’ included in the value of sales the turnover which some of the incriminated carriers had generated on non-EU EEA-Switzerland routes during the period concerned. According to the Commission, the reason for this is that, in a request for information of 26 January 2009 concerning certain turnover figures, it did not inform the carriers concerned that turnover on non-EU EEA Switzerland routes should be excluded from the value of sales on non-EU EEA third country routes.

203 It must nevertheless be held, as the Commission stated, that those aspects concerned only the revenues to be taken into account for the purposes of calculating the basic amount of the fine, not the definition of the geographic scope of the single and continuous infringement which is at issue here.

204 The present plea must therefore be rejected.

3. The first, third and fourth parts of the first plea, alleging errors of law and fact and errors of assessment in the finding of the single and continuous infringement

205 In the first plea, the second part of which has already been examined, the applicants complain that the Commission made errors of law and fact and errors of assessment in finding the existence of a single and continuous infringement. The first part of this plea alleges that the Commission failed to establish the existence of a worldwide cartel, while the third alleges errors in the application of the State compulsion defence and the fourth alleges that the Commission failed to establish to the requisite standard a link between the various components of the single and continuous infringement.

(a) The first part, alleging that the Commission failed to establish the existence of a worldwide cartel

206 The applicants claim that the Commission failed to establish to the requisite standard, in the contested decision, the existence of a worldwide cartel. The applicants put forward, in essence, three arguments in support of that claim.

207 In the first place, the applicants claim that the Commission erred in finding that the surcharges were ‘measures of general application’ that are not route-specific. In reality, those surcharges depended on local market conditions as regards both their introduction and their level, as evidenced by the statement of facts set out in the judgments of the Federal Court of Australia terminating the proceedings brought in Australia with respect to certain carriers concerning the FSC understanding.

208 They add that the infringing conduct described in the contested decision merely describes conduct in 19 markets outside the European Union.

209 In the second place, the applicants dispute that the Commission was entitled to establish the existence of a ‘worldwide cartel’ on the basis of the potential competition that might exist among the participants in the single and continuous infringement on all routes to and from the European Union. They observe in this connection that the legal criterion of there being no ‘insurmountable barriers’ is not applicable in this case. The Commission should have made an assessment on realistic grounds, examining whether each individual carrier was a potential entrant on each of the routes concerned. However, the Commission failed to do so.

210 In the third place, the applicants take issue with the finding of a global cartel on the ground that most of the conduct described was not prohibited by Article 101 TFEU or by the competition rules in the countries where it took place. In particular, the Commission abandoned the objections raised against a carrier in the Statement of Objections on the ground that the authorities of the United Arab Emirates required carriers to coordinate with one another on surcharges, while finding that routes between the EEA and the United Arab Emirates were covered by the cartel at issue.

211 The Commission disputes the applicants’ arguments.

212 At the outset, it should be noted that, since it referred in the contested decision to the worldwide nature of the cartel at issue, the Commission was entitled to dispense with an express reference to each of the countries concerned, without that omission being such as to prejudice the understanding of the grounds of that decision.

213 It should be borne in mind that the introductory paragraph of Article 1 of the contested decision refers to the existence of tariff coordination for the provision of freight services ‘worldwide’. Similarly, the grounds of that decision refer to the existence of a ‘worldwide cartel’ (recitals 74, 112, 832 and 1300), a cartel of ‘worldwide nature’ (recital 887) or of a cartel ‘implemented globally’ (recital 1046).

214 In support of that finding, the Commission stated that the cartel at issue ‘operated on a worldwide basis’ (recital 832 of the contested decision). The Commission explained that the cartel at issue was based on a complex network of mainly bilateral contacts which took place in various places in the world and at various levels in the undertakings concerned (recitals 109 and 1300 of that decision). According to the Commission, the ‘arrangements [of the cartel at issue] were in many cases organised centrally’ and implemented locally by the local personnel (recital 1046 of that decision). According to the Commission, it was a question of enabling the local personnel to adapt to local conditions measures of general application, ‘on all routes, on a worldwide basis’, namely surcharges and the refusal to pay commission (recitals 876, 889 and 890 of that decision and footnote 1323 to that decision).

215 In the context of this part of the plea, the applicants do not dispute the assessments relating to the organisation of the cartel at issue, but merely criticise two of the three grounds which the Commission set out, in recitals 888 to 890 of the contested decision in response to the arguments of some of the addressees of the Statement of Objections calling into question the relevance of contacts in third countries and contacts on routes which they had never operated or could not have legally operated, as can be seen from recitals 112, 886 and 887 of that decision Those grounds are, first, that the surcharges and the refusal to pay commission were measures of general application that were not route specific (recital 889 of that decision) and, second, that there were no insurmountable barriers to the provision by the incriminated carriers of freight services on those routes (recital 890 of that decision).

216 First, as regards the general applicability of the surcharges and the refusal to pay commission, the Commission referred in the contested decision to numerous items of evidence, in respect of which the applicants have, in the context of this plea, failed to explain how they are insufficiently conclusive.

217 Those items of evidence, several of which are cited by way of example in footnote 1323 to the contested decision, sufficiently substantiate the Commission’s conclusion that the surcharges are of general application ‘on all routes, on a worldwide basis’. On the one hand, as regards the FSC, it should be noted in particular that recital 140 of the contested decision refers to an internal Swiss email in which it is stated that AF ‘will levy [a] worldwide [FSC] of EUR 0.10/USD 0.10 kg’, that KLM ‘will [do exactly] the same’ and that Lufthansa ‘is going [in] the same direction but [has] not confirmed at this minute’. Furthermore, in recital 162 of that decision, reference is made to an email exchange between Lufthansa and Japan Airlines of 27 September 2000 in which it is stated that Lufthansa Cargo intends to charge a certain amount of FSC ‘worldwide’, while, in recital 210 of that decision, reference is made to Martinair’s leniency statement, according to which Martinair had contacts with several carriers on the implementation of a worldwide FSC.

218 Similarly, in footnote 1323 to the contested decision, reference is made to announcements of the increase or decrease of the FSC or SSC which ‘referred to a worldwide application of [those surcharges] that was not limited to a specific route’, which the applicants do not dispute.

219 On the other hand, as regards the SSC, it should be noted that, in recital 608 of the contested decision, the Commission referred to an email in which British Airways explains to Lufthansa that it wanted to introduce an ‘exceptional handling fee’ worldwide. Moreover, in recital 666 of that decision, the Commission referred to the minutes of a BAR CSC Executive Committee meeting of 30 March 2004 in Hong Kong. It is apparent from those minutes that the amount of the SSC from Hong Kong would be based on the ‘worldwide benchmark’.

220 The fact that the level and date of introduction of the surcharges at the local level are alleged to have depended on local conditions is consistent with the system at ‘various levels’ for the implementation of the surcharges described in the contested decision, in which, in particular, the level of the surcharges could vary and be discussed separately ‘due to the local market conditions or regulations’ (footnote 1323 to the contested decision). The judgment of the Federal Court of Australia, set out in Annex 1.B to the applicants’ response to the measures of organisation of procedure of the General Court of 7 June 2019, moreover confirms that interpretation:

‘There were exceptions to the imposition by each of the respondents of fuel surcharges in accordance with the Surcharge Methodology in cases where local conditions prevented the imposition of a surcharge in accordance with such methodology (or the full and or immediate imposition of that surcharge) from a particular [air]port or in a particular geographic area.’

221 As regards the refusal to pay commission, it is true that the Commission did not, in footnote 1323 to the contested decision, give any specific examples of evidence to substantiate its general applicability ‘on all routes, on a worldwide basis’.

222 However, on the one hand, since the surcharges were generally applicable ‘on all routes, on a worldwide basis’, it was likely that the refusal to pay commission was also generally applicable. Similarly, in recital 879 of the contested decision, the Commission found that the refusal to pay commission and the two other components of the single and continuous infringement were complementary in that this had ‘ensured that surcharges did not become subject to competition through the negotiation of commission (in fact discounts on the surcharges) with customers’.

223 On the other hand, it must be pointed out that the Commission referred, elsewhere than in footnote 1323 to the contested decision, to evidence to substantiate the applicability of the refusal to pay commission ‘on all routes, on a worldwide basis’. Thus, in recital 679 of the contested decision, the Commission referred to an internal email concerning the refusal to pay commission in which Swiss’ Chief Cargo Officer instructed his area managers to ‘participate wherever relevant in local BAR meetings’. Similarly, in recital 683 of the contested decision, the Commission mentions an internal memorandum sent to CPA’s cargo sales managers, in which it is stated that ‘as long as local conditions allow C[PA] should adopt a common approach and response to the issue [of the requests for commission on surcharges]’ and ‘should therefore consider following any rejection of such request or claim for commission and other related actions that may be coordinated by your local [carrier] associations’.

224 The Commission has, moreover, adduced evidence that such coordination occurred in a number of countries around the world, including Hong Kong (recital 503 of the contested decision), the Swiss Confederation (recital 692 of that decision), Italy (recitals 694 to 698 of that decision), France (recital 699 of that decision), Spain (recital 700 of that decision), India (recital 701 of that decision) and the United States (recital 702 of that decision).

225 In the light of the foregoing, it must be held that the fact that the infringing conduct described in the contested decision referred specifically to only 19 markets outside the European Union was not such as to prevent the Commission from concluding that there was a worldwide cartel.

226 As regards the conduct which, according to the applicants, was not prohibited by the applicable competition rules, it should be observed that the applicants refer to (i) conduct relating to prices on EU-third country routes before 1 May 2004 and (ii) to cases where coordination between carriers was allegedly necessary in order to comply with local legal obligations. The applicants’ arguments as regards (i) are indissociable from those put forward in the fourth plea, while their arguments relating to (ii) are indissociable from those put forward in the third part of this plea. It is therefore in that context that they will be examined.

227 As regards the discontinuance of the proceedings against a carrier, it should be noted that the applicants maintain that it is due to the existence of State coercion in Dubai. The applicants argue that this is obvious. However, it should be noted that the Commission did not at any time explain why it had abandoned the proceedings against that carrier and was not, in accordance with settled case-law, under any obligation to do so (see judgment of 27 February 2014, InnoLux v Commission, T 91/11, EU:T:2014:92, paragraph 141 and the case-law cited). It follows that it cannot be inferred from the discontinuance of proceedings against that carrier that there was State coercion in Dubai. A fortiori, that circumstance is not such as to call into question the finding of the existence of a worldwide cartel.

228 Second, as regards the argument alleging failure to demonstrate a potential competitive relationship, it must be held that the Commission’s explanations concerning the absence of any insurmountable barriers are not essential to the finding that the cartel at issue was of a worldwide scale. The factors taken into account in paragraphs 213 to 224 above are sufficient to justify that finding. The applicants’ line of argument must therefore be rejected as ineffective.

229 It follows that the applicants have failed to demonstrate that the Commission erred in concluding that the cartel at issue had a worldwide dimension.

230 This part of the plea must therefore be rejected.

(b) The third part, alleging errors in the application of the State coercion defence

231 In the first place, the applicants submit that the Commission erred in assuming that the conditions under which conduct may escape the application of Article 101 TFEU where an obligation is imposed by a Member State apply equally in the case of State compulsion by a third country. In this connection, they mention the fact that the Commission cannot force third countries to refrain from adopting measures that favour anticompetitive practices. They also refer to the evidentiary issues arising from the contexts in such third countries, in which the distinction between encouragement and compulsion is often blurred.

232 In the second place, the applicants argue that the Commission made a manifest error of assessment by failing to have regard to the fact that the authorities in Hong Kong, Japan and Thailand exercised their regulatory authority to review and approve collective FSC proposals from carriers. Had it done so, it would, following the judgment of 19 February 2002, Arduino (C 35/99, EU:C:2002:97), have found Article 101 TFEU inapplicable.

233 In the alternative, they submit that the legal measures imposed on the carriers in Hong Kong, Japan and Thailand removed their conduct from the scope of application of Article 101 TFEU, and that would be the case even if their respective situations were examined by reference to the same standards that apply in the case of intervention by authorities in the Member States. The Commission thus made a manifest error of assessment.

234 The Commission disputes those arguments.

235 As a preliminary point, it must be borne in mind that Article 101(1) TFEU applies only to anticompetitive conduct engaged in by undertakings on their own initiative. If anticompetitive conduct is required of undertakings by national legislation or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, Article 101 TFEU does not apply. In such a situation, the restriction of competition is not attributable, as that provision implicitly requires, to the autonomous conduct of the undertakings (see judgment of 11 November 1997, Commission and France v Ladbroke Racing, C 359/95 P and C 379/95 P, EU:C:1997:531, paragraph 33 and the case-law cited).

236 Conversely, if national legislation does not preclude undertakings from engaging in autonomous conduct which prevents, restricts or distorts competition, Article 101 TFEU may apply. In the absence of any binding regulatory provision imposing anticompetitive conduct, the Commission is entitled to conclude that the operators in question enjoyed no autonomy only if it appears on the basis of objective, relevant and consistent evidence that that conduct was unilaterally imposed upon them by the national authorities through the exercise of irresistible pressures, such as, for example, the threat to adopt State measures likely to cause them to sustain substantial losses (see judgment of 11 December 2003, Minoan Lines v Commission, T 66/99, EU:T:2003:337, paragraphs 177 and 179 and the case-law cited).

237 According to the case-law, that is not the case where a law or conduct is limited to encouraging or facilitating autonomous anticompetitive conduct by undertakings (see, to that effect, judgment of 14 December 2006, Raiffeisen Zentralbank Österreich and Others v Commission, T 259/02 to T 264/02 and T 271/02, EU:T:2006:396, paragraph 258).

238 Lastly, it is apparent from the case-law that it is for the undertakings concerned to demonstrate that a law or State conduct was of such a kind as to deprive them of all independent choice in their commercial policy (see, to that effect, judgment of 7 October 1999, Irish Sugar v Commission, T 228/97, EU:T:1999:246, paragraph 129). Although it is for the authority alleging an infringement of the competition rules to prove it, it is for the undertaking raising a defence against a finding of an infringement of those rules to demonstrate that the conditions for applying the rule on which such defence is based are satisfied, so that the authority will then have to resort to other evidence (see judgment of 16 February 2017, Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission, C 90/15 P, not published, EU:C:2017:123, paragraph 19 and the case-law cited).

239 It is in the light of those considerations that the two complaints raised, in essence, by the applicants must be examined. The first complaint alleges errors relating to the applicability of the State coercion defence to third countries. The second complaint alleges errors relating to the assessment of the regulatory regimes of Hong Kong, Japan and Thailand.

(1) The first complaint, alleging errors relating to the applicability of the State coercion defence to third countries

240 Contrary to the applicants’ submission, it is apparent from the case-law that the principles set out in paragraphs 235 to 238 above are also applicable where the regulatory regimes of third countries are at issue (see, to that effect, judgment of 30 September 2003, Atlantic Container Line and Others v Commission, T 191/98 and T 212/98 to T 214/98, EU:T:2003:245, paragraph 1131), as is apparent in essence from footnote 1435 to the contested decision.

241 None of the applicants’ arguments is such as to call into question the applicability of those principles to the present case.

242 In the first place, contrary to the applicants’ submission, it is apparent from the case-law cited in paragraphs 235 to 237 above that the State coercion defence is justified not by the principle of sincere cooperation, but by the lack of autonomy of the undertakings concerned in the choice of their commercial policy, which justifies Article 101 TFEU not being applied.

243 Although it is true that, unlike third countries, Member States are obliged not to introduce or maintain in force measures which may render ineffective the competition rules applicable to undertakings (judgment of 9 September 2003, CIF, C 198/01, EU:C:2003:430, paragraph 45), the fact remains that, in the context of an examination of the applicability of Article 101 TFEU to the conduct of undertakings which are complying with a Member State’s legislation, a prior evaluation of that legislation should be directed solely to ascertaining whether that legislation prevents undertakings from engaging in autonomous conduct which prevents, restricts or distorts competition, so that the national legislation’s compatibility with the Treaty rules on competition cannot be regarded as decisive (see, to that effect, judgment of 11 November 1997, Commission and France v Ladbroke Racing, C 359/95 P and C 379/95 P, EU:C:1997:531, paragraphs 31 and 35).

244 As the Commission rightly points out, the effect which a regulatory regime may have on the autonomy of operators in the choice of their commercial policy is not likely to vary according to whether the framework is that of a Member State of the European Union or that of a third country.

245 In the second place, the applicants are wrong to claim that the application of the State coercion defence to cases where the legislation or conduct of a third country is at issue raises significant practical evidentiary problems, on the ground that the cultural and legal context outside the European Union may alter the distinction between encouragement or tolerance, on the one hand, and compulsion, on the other.

246 In the light of the principles relating to the allocation of the burden of proof recalled in paragraph 238 above, it is for the applicants to explain to the Commission or, as the case may be, to the Court how the regulatory regimes of third countries to which they are subject involve a genuine obligation to engage in anticompetitive conduct rather than mere encouragement. The mere reference to the cultural and legal context prevailing outside the European Union, which is not otherwise substantiated, is not sufficient to call into question those principles.

247 It follows from the foregoing that the complaint alleging errors relating to the applicability of the State coercion defence to third countries must be rejected.

(2) The second complaint, alleging errors of assessment of the facts in the examination of the regulatory regimes of Hong Kong, Japan and Thailand

248 The applicants submit that the Commission made a manifest error of assessment by failing to find that the measures imposed on the carriers in Hong Kong, Japan and Thailand removed their conduct from the scope of application of Article 101 TFEU.

249 In support of their complaint alleging errors of assessment of the facts in the examination of the regulatory regimes of Hong Kong, Japan and Thailand, the applicants rely on the judgment of 19 February 2002, Arduino (C 35/99, EU:C:2002:97). They maintain that the role of the government authorities in Hong Kong, Japan and Thailand was directly comparable to that of the Italian authorities in the case which gave rise to that judgment.

250 The Commission disputes those arguments.

251 In the light of the clarifications provided in paragraphs 242 and 243 above, it must be noted that the judgment of 19 February 2002, Arduino (C 35/99, EU:C:2002:97), did not concern the question whether national legislation or regulation leaves open the possibility of competition which may be prevented, restricted or distorted by the autonomous conduct of the undertakings, for the purpose of determining whether Article 101 TFEU was applicable to them.

252 By the judgment of 19 February 2002, Arduino (C 35/99, EU:C:2002:97), the Court, hearing a question for a preliminary ruling on the current Article 101 TFEU, observed that that provision, read in conjunction with the current Article 4(3) TEU, required the Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (paragraph 34), and held that those provisions did not preclude a Member State from adopting a law or regulation which approves, on the basis of a draft produced by a professional body of members of the Bar, a tariff fixing minimum and maximum fees for members of the profession, where that State measure forms part of a procedure such as that laid down in the Italian legislation at issue (paragraph 44).

253 Therefore, the applicants’ arguments based on the judgment of 19 February 2002, Arduino (C 35/99, EU:C:2002:97), must be rejected as irrelevant.

254 Examination of the present complaint therefore relates solely to the applicants’ alternative line of argument that, in essence, even if the criteria laid down in the case-law relating to the legislation of the Member States were to be applied, the conditions for applying the defence plea based on State coercion are fulfilled in Hong Kong, Japan and Thailand.

(i) Hong Kong

255 First of all, the applicants claim that the Hong Kong Civil Aviation Department (‘the CAD’) required the BAR CSC to submit collective applications to it relating to the FSC which was the subject of an agreement between the carriers, for prior approval. They rely to that effect on two letters from the CAD dated 5 September 2008 and 3 September 2009, addressed to the Commission, and submit that their claims are corroborated by SAC’s operating permit in Hong Kong, from which it is apparent that the tariffs charged for freight services had to be approved, inter alia, by the CAD, in the form required by the latter.

256 Next, the applicants submit that, since the CAD approved only a single FSC, competition between carriers in that regard was foreclosed and that agreements that involved surcharges for traffic from Hong Kong would in any event not have affected trade between EU Member States.

257 The Commission contests those arguments.

258 Recitals 976 to 993 of the contested decision concern (i) the international air-service agreements (‘ASAs’) signed by the Hong Kong Special Administrative Region of the People’s Republic of China and (ii) Hong Kong’s regulatory regime. According to those recitals, the Commission considered that there had been no requirement on Hong Kong carriers to discuss tariffs.

259 In the first place, the Commission acknowledged, in recitals 981 to 986 of the contested decision, that the ASAs signed by the Hong Kong Special Administrative Region of the People’s Republic of China required, for the most part, tariffs charged by the designated carriers of the contracting countries to be approved by the competent authorities, namely for Hong Kong by the CAD, and that they allowed prior price consultations between designated carriers. Nevertheless, according to that decision, those ASAs did not in any event require such consultations before an application for approval was made.

260 In support of that conclusion, the Commission reproduced in recital 983 of the contested decision the wording of a standard term of several ASAs which provides:

‘The tariffs referred to in paragraph (1) of this Article may be agreed by the designated airlines of the Contracting Parties seeking approval of the tariffs, which may consult other airlines operating over the whole or part of the same route, before proposing such tariffs. However, a designated airline shall not be precluded from proposing, nor the aeronautical authorities of the Contracting Parties from approving, any tariff, if that airline shall have failed to obtain the agreement of the other designated airlines to such tariff or because no other designated airline is operating on the same route.’

261 In recital 985 of the contested decision, the Commission added that the ASA between the Czech Republic and the Hong Kong Special Administrative Region of the People’s Republic of China, for example, stated that no country would require carriers to discuss tariffs.

262 In the second place, as regards Hong Kong’s administrative practice, the Commission found, in recitals 987 to 989 of the contested decision, that it was not established that the CAD had required a consultation of the carriers in order to submit a collective application for approval of tariffs. In particular, none of the carriers provided any evidence establishing that the CAD explicitly required collective applications.

263 In recital 992 of the contested decision, the Commission concluded (i) with regard to the FSC, that the CAD was not prepared to accept individual applications for an FSC mechanism, but that it was prepared to accept individual applications for a fixed amount FSC and (ii) in respect of the other surcharges, that the carriers had not claimed that collective applications were required by the CAD.

264 The applicants’ line of argument cannot demonstrate that those assessments are vitiated by illegality.

265 First of all, it should be noted that the CAD’s letter of 5 September 2008 states that it required, during the period 2000-2007, that all carriers wishing to impose a surcharge on freight originating in Hong Kong obtain prior approval, that, in that context, the CAD considered that collective applications were efficient, reasonable and lawful and that such a practice was consistent with the ASAs concluded by the Hong Kong Special Administrative Region of the People’s Republic of China. However, the fact that it is specified that a collective application is an effective means of lodging an application and reviewing and approving surcharges and that the CAD considers that form of application to be lawful in Hong Kong does not show that the legislation or administrative practices of Hong Kong require collective applications and preclude individual applications for surcharges.

266 Similarly, the letter of 3 September 2009 is worded as follows:

‘The Commission should be absolutely clear that, in respect of the cargo [FSC] index-based mechanism, we required that the BAR-CSC and the participating carriers agree on the details of the collective applications, including the amount of the surcharge for which approval was sought, the evidence to be provided to CAD supporting the applications and the single mechanism to be used for determining the surcharge. The CAD also mandated and required the participating carriers to levy specifically the surcharge approved. Moreover, we mandated and required BAR-CSC to submit for approval to CAD any change in the list of carriers participating in the collective applications and we made it clear that such carriers should not levy any [FSC] without CAD’s express approval to BAR-CSC.’

267 That letter thus confines itself to setting out the conditions required by the CAD where the BAR CSC and the carriers envisage a collective application relating to an index-based FSC. On the other hand, it does not refer to a general obligation to submit a collective application for a FSC or to its not being possible to submit an individual application for a fixed FSC.

268 As regards SAC’s operating licence in Hong Kong, the letter states only that it was issued subject to the condition that the tariffs for the freight services charged by that carrier from that territory were approved in advance by the CAD, in a form specified by the latter, without mentioning the tariff approval procedure.

269 Thus, none of the documents referred to in paragraphs 265 to 268 above contradicts recital 992 of the contested decision, from which it is apparent that collective applications involving discussions between carriers were required only for an index-based FSC mechanism, and that individual applications remained possible for a fixed-amount FSC.

270 Next, the arguments that the CAD’s practice of approving only a single FSC eliminated competition between carriers and that any agreement on surcharges concerning traffic originating in Hong Kong would not in any event have affected trade between EU Member States cannot succeed.

271 Since the applicants have failed to substantiate their claims that the CAD approved only a single FSC, or to establish that it was impossible to submit individual applications for a fixed FSC to the CAD, they cannot reasonably claim that the scheme established by the CAD eliminated all price competition between carriers. Moreover, as regards the argument that any agreement on surcharges concerning traffic originating in Hong Kong would not have affected trade between EU Member States, which is not otherwise substantiated, it should be borne in mind that Article 101 TFEU and Article 53 of the EEA Agreement do not require that each individual component of an agreement be capable of having a significant or appreciable influence on trade between Member States and between the parties to the EEA Agreement respectively. It is the agreement as a whole which must be capable of having such an influence (see, to that effect, judgment of 14 May 1997, VGB and Others v Commission, T 77/94, EU:T:1997:70, paragraph 126). Such an overall examination is also justified in the case of a single and continuous infringement such as that found in the contested decision (see, to that effect, judgment of 24 September 2009, Erste Group Bank and Others v Commission, C 125/07 P, C 133/07 P, C 135/07 P and C 137/07 P, EU:C:2009:576, paragraphs 55 to 59).

272 It follows from the foregoing that the applicants have not shown that the Hong Kong regulatory framework required them to discuss their tariffs with other carriers and made it impossible to submit an individual application to the CAD for a fixed amount FSC. They do not therefore establish that the Commission erred in finding, in the contested decision, that the Hong Kong legislation did not prevent the application of Article 101(1) TFEU.

(ii) Japan

273 The applicants maintain that, under the ASA between Japan and Singapore, which was directly applicable in Japan, and the Japanese Civil Aviation Law, carriers’ fares had to be approved in advance by the Japanese Civil Aviation Bureau (‘the JCAB’), on pain of sanctions. The JCAB established a policy of harmonising the FSC, under which its approval of fares was conditional upon the Japanese carriers securing the prior agreement of the foreign carriers operating in Japan. In addition, contacts between Japan Airlines and other Japanese carriers were carried out at the direction of the JCAB. Thus, foreign carriers were subject to ‘irresistible pressures’ encouraging them to consult one another before submitting their applications for approval of fares. Furthermore, since the JCAB approved only a single FSC adjustment, competition in respect of surcharges was foreclosed and agreements or concerted practices that involved surcharges for traffic from Japan would not have affected trade between EU Member States.

274 The Commission disputes those arguments.

275 Recitals 995 to 1012 of the contested decision relate (i) to the ASAs concluded by Japan and (ii) to the Japanese regulatory regime. According to those recitals, the Commission considered that no requirement to discuss tariffs had been imposed on carriers in Japan.

276 In the first place, as regards the ASAs concluded by Japan, the contested decision, in recital 995 thereof, reproduces the wording of a clause contained in the agreement concluded with the Kingdom of the Netherlands which is found in other agreements and which provides as follows:

‘agreement on tariffs shall, wherever possible, be reached by the designated airlines concerned through the rate-fixing machinery of IATA. When this is not possible, tariffs in respect of each of the specified routes shall be agreed between the designated airlines concerned.’

277 After noting, in recital 996 of the contested decision, that, according to one carrier, the ASAs required, rather than permitted, price agreements, the Commission stated, in recital 997 of that decision, that the agreement concluded with the United Kingdom of Great Britain and Northern Ireland had been amended in 2000 by a Memorandum of Understanding providing that designated carriers were not required to consult each other on tariffs prior to a request for approval. According to recitals 1005 to 1008 of that decision, even though it is apparent from the ASAs that, subject to certain conditions, carriers must agree on tariffs, such discussions are strictly limited to the designated carriers on specified routes and in no way cover general tariff discussions among multiple carriers. Lastly, in practice, the parties to the ASAs would not claim that those agreements were applicable, so that the obligations would rather be derived from the national legal and administrative provisions in force in Japan, which would be reinforced by the fact that the parties claim that coordination was required for the FSC, but not for the SSC.

278 In the second place, as regards Japanese legislation and administrative practice, the Commission mentioned, in recitals 998 to 1004 of the contested decision, certain provisions of the Japanese Civil Aviation Law as well as statements by carriers concerning the JCAB directions. In recitals 1009 to 1011 of that decision, the Commission found (i) that it was not expressly apparent from that Japanese law that tariff coordination was mandatory and (ii) that the incriminated carriers had adduced no evidence to show that such an obligation had been imposed by the administrative practices of the JCAB.

279 The applicants’ line of argument is not capable of demonstrating that those assessments are vitiated by illegality.

280 In the first place, it should be noted that, according to the applicants’ claims, as a result of the JCAB’s administrative practice, carriers operating in Japan were subject to irresistible pressures encouraging them to consult one another on tariffs. In order to substantiate the existence of such irresistible pressures, the applicants rely on transcripts of the statements made by the carriers at the hearing before the Commission.

281 On the one hand, it is apparent from those transcripts, as brought to the Court’s attention, that:

– Lufthansa claimed that Japan Airlines had received ‘guidance’ from the Ministry of Land, Infrastructure and Transport (MLIT), according to which carriers ‘should avoid’ any confusion in the market, and that a uniform line ‘was recommended’;

– CPA stated that JCAB’s officers had let it be known that it ‘would be preferable’ for carriers to coordinate on tariffs because that authority ‘would have had difficulty’ explaining the reason for different FSC levels for different carriers;

– Japan Airlines stated that it did not claim that the Japanese regulatory requirements could excuse its conduct and stated that the requirements imposed on it provided the context for tariff coordination and should be taken into account as a mitigating factor; as regards the administrative practices of the JCAB, it maintained that it ‘understood that JCAB was its [primary] regulator but it wanted J[apan Airlines] to coordinate with other Japanese carriers to achieve [these] regulatory [objectives] of [uniformity] and fairness to Japanese consumers and that J[apan Airlines]’ ability to obtain approval [for a FSC in respect of freight services outside Japan] was required by Japanese law, dependent on its compliance with JCAB’s intentions and instructions’;

– A carrier maintained that, from May 2001 and throughout the period during which the FSC applied, the JCAB ‘required that all carriers would coordinate in introducing or increasing [the FSC] and then make applications for FSC movements almost at the same time and at the same amount’, and, from 2002 onwards, directed carriers to make applications for the agreements to enjoy immunity under Japanese competition law; it added that that administrative practice was binding and that the Japanese carriers had no freedom to act autonomously in relation to the introduction or modification of the FSC.

282 Those statements are not unequivocal. Only one carrier stated without reservation that tariff coordination between carriers was imposed by the JCAB. Conversely, according to Lufthansa’s and CPA’s statements, the JCAB encouraged, rather than required, that coordination. As regards Japan Airlines, it maintained that the reason why it engaged in anticompetitive conduct lies in its own understanding of the JCAB’s intention, which, in view of the fact that it also stated that the regulatory context in Japan could not be relied on to justify not applying Article 101 TFEU to its conduct, tends rather to support the argument that the JCAB did not expressly require carriers to discuss tariffs.

283 On the other hand, it should be noted that, as the Commission rightly points out, the probative value of that evidence remains weak. That evidence consists merely of oral statements made during the administrative procedure by the operators under investigation, which are not supported by any contemporaneous evidence and which tend to exonerate the declarants or, at the very least, rely on mitigating circumstances (see, to that effect, judgments of 8 July 2008, Lafarge v Commission, T 54/03, not published, EU:T:2008:255, paragraph 379, and of 16 June 2015, FSL and Others v Commission, T 655/11, EU:T:2015:383, paragraph 183).

284 Accordingly, the material submitted by the applicants in support of their claims cannot be regarded as objective, relevant and consistent evidence that, in Japan, tariff coordination between carriers was unilaterally imposed upon them by the national authorities through the exercise of irresistible pressures, within the meaning of the case-law cited in paragraph 236 above.

285 In the second place, since the applicants have failed to substantiate their claims that tariff coordination between carriers was unilaterally imposed by the national authorities through the exercise of irresistible pressures, they cannot reasonably maintain that the system established by the JCAB eliminated all tariff competition between carriers and that the agreements on surcharges concerning traffic originating in Japan would not have affected trade between EU Member States (see also paragraph 271 above).

286 The applicants’ arguments relating to the Japanese regulatory system must therefore be rejected.

(iii) Thailand

287 The applicants claim that, according to the Thai legislation, the FSC applied by carriers had to be approved in advance by the Department of Civil Aviation (‘the DCA’), on pain of sanctions. For the purposes of implementing the Thai Air Navigation Act, the DCA consulted the various stakeholders and approved the proposals relating to the FSC made by the Airline Cargo Panel (‘the ACP’) of the Airline Cargo Business Association (‘the ACBA’). The carriers complied with those regulatory demands. Since the Thai authorities clearly expected carriers to coordinate on the FSC, and in view of the risk of penalties, carriers were subject to irresistible pressures so that compliance with the system was obtained. Furthermore, since the Thai authorities were determined to ensure that adjustments to the FSC were uniform, the approval process eliminated the scope for competition in respect of surcharges and eliminated any possible effect on trade between EU Member States.

288 The Commission disputes those arguments.

289 In recital 1015 of the contested decision, the Commission analysed the regulatory system applicable in Thailand. It noted that the ASAs concluded between that third country and EU Member States provided, as a general rule, for a clause according to which tariffs would, ‘if possible, be agreed in respect of each of the specified routes between the designated [carriers] concerned’, and that tariffs could be the subject of an agreement between the contracting parties if the carriers did not reach an agreement. The Commission also noted that tariffs had to be filed with the DCA and the Civil Aviation Board.

290 In recital 1019 of the contested decision, the Commission took the view that, ‘[following] the reasoning … in respect of Hong Kong and Japan’, the defence plea based on State coercion was not substantiated in the case of Thailand.

291 In that recital, the Commission stated that that analogy was valid on the ground, first, that the tariff provisions laid down in the ASAs applicable in Thailand were limited to designated carriers on specified routes and did not extend to general tariff discussions between multiple operators providing services to multiple country destinations and, second, that the applicable domestic legal and administrative provisions had not been shown to require tariff coordination.

292 None of the applicants’ arguments demonstrates that those assessments are vitiated by errors.

293 In the first place, it should be noted that the circumstance that the DCA accepted that the ACP is its main interlocutor for proposals relating to the FSC, or the circumstance that carriers might have been subject to fines if an FSC was introduced which had not been approved beforehand – even if they were established – in particular in the light of the exchange of emails between carriers during May 2004 which was placed on the file by the applicants do not mean, in themselves, that carriers were required to coordinate with one another on tariffs on account of irresistible State pressures. Nor can it be inferred from this that the Thai legislation removed all autonomy of carriers in determining the FSC applied.

294 In the second place, in the application, the applicants merely claim that the DCA ‘confirmed its ongoing regulation of surcharges and its concerns regarding the impact of increasing FSC rates on exports from Thailand, including through consultation of various stakeholders’, while referring to a series of documents in the annexes.

295 First of all, those annexes consist of statements made by CPA and Martinair during the administrative procedure. It is apparent from CPA’s statement that, in 2000, the Thai authorities approved the introduction of the FSC provided that it did not exceed a certain amount. Moreover, according to the statements of CPA and Martinair during 2003 and 2004, the carriers consulted one another within the ACP, at the initiative of another carrier, with the aim of proposing an increase in the FSC and establishing an index, which was submitted to the DCA for approval. By letter of 14 May 2004, the DCA requested carriers to maintain the FSC which had already been approved pending consideration of their applications. A meeting with the DCA took place on 8 November 2004, following which the DCA adopted a resolution addressed to all the carriers laying down guidelines relating to the increase in the FSC. By another letter, dated 3 December 2004, the DCA approved the index proposed by the ACP. It was envisaged that a carrier would announce to the other carriers the revisions to the FSC which it would make under the index.

296 According to CPA’s statement, on 20 July 2005, the DCA decided to make a provisional adjustment to the FSC rates concerning traffic originating in Thailand by increasing the rate of that surcharge, and requested a carrier to notify those provisional rates to all the carriers, with the aim that they implement the adjustments thus agreed. By letter of 2 October 2006, the carrier at issue informed the other carriers that the DCA had approved a further adjustment to the FSC index and forwarded a letter from the DCA dated 28 September 2006 concerning those changes. The carrier at issue subsequently continued at least to post its FSC index on its website.

297 Next, the annexes to which the applicants refer contain the following documents:

– the minutes of a meeting organised by the DCA on 24 March 2003, attended by, inter alia, representatives from Thai exporters, from the ACBA and from carriers, from which it is apparent, in essence, that the Thai authorities intended to find a compromise solution consisting in maintaining the FSC while ensuring that it was contained at an acceptable level and that those authorities considered that three options could be considered; on that occasion, one party reportedly referred to the ‘war risk surcharge’ because certain European carriers might try to maintain that cost;

– a letter in Thai dated 14 May 2004 accompanied by an English translation; according to that translation, the subject matter of that letter was the revision of the FSC, the rates of which were specified with reference to an earlier letter from the DCA dated 22 April 2003; it is apparent from this that that revision was still under consideration and that, provisionally, all carriers would be asked to maintain the FSC rates previously approved;

– an email exchange between carriers during August 2004, containing an English translation of a letter from the ACBA dated 10 June 2004 and a letter in reply from the DCA dated 9 August 2004, the two letters in the file which are in Thai; it is apparent from the translation of the letter of 9 August 2004 that, pending the examination of a new request by the ACBA, the DCA ‘would like to request a cooperation from all [carriers] to maintain the FSC amount which has already received permission from the DCA’; in addition, it is apparent from that email exchange that the carriers discussed the date of introduction of the surcharge in the light of a risk of loss of profit on account of transactions already effected by their customers;

– an email exchange between carriers in December 2004, from which it is apparent (i) that the DCA adopted new rules on surcharges to be complied with by all carriers and (ii) that some carriers were applying different FSC rates, that a discussion concerned the appropriateness of the amount of the surcharges applied, and a carrier was contemplating revising its own rates; appended to that exchange was a letter from the DCA dated 3 December 2004, referring to a resolution, adopted following the ‘No 2/2547 meeting’, enabling carriers to charge an FSC using a fuel index the details of which are specified;

– a memorandum drafted by a legal expert from which it is apparent, in particular, that, according to discussions between the expert and a DCA officer, between 2000 and 2002, certain carriers unilaterally introduced FSCs in the absence of any rules, that exporters and the ACP then requested the intervention of the Thai authorities and that the DCA approved the introduction of an FSC; following discussions between stakeholders, the DCA passed in November 2004, at the ‘No 2/2547 meeting’, a resolution approving the use of a fuel index as a method for calculation of the FSC for freight services; once that resolution came into force, any change to the maximum rate required the DCA’s approval.

298 In the light of the evidence set out in paragraphs 295 to 297 above, it must be noted at the outset that the evidential value of the statements of CPA and Martinair, taken in isolation, remains weak, since they are also mere oral statements made during the administrative procedure by the operators under investigation by the Commission which are intended to exonerate those making the statements (see paragraph 283 above). They would be sufficient to support the applicants’ arguments only if they were corroborated by other evidence.

299 That having been clarified, first, it must be observed that, apart from CPA’s statements, none of the documents placed on the file concerns 2005, in particular the decision which was allegedly adopted by the DCA on 20 July 2005. In that regard, the applicants therefore fail to produce objective, relevant and consistent evidence showing the existence of irresistible State pressures, or to establish the existence of a regulatory regime which eliminated all autonomy of carriers in determining the FSC charged.

300 Second, as regards the period between 2000 and 2003, the material appended to the application is not consistent. While CPA’s statement indicates that, in 2000, the Thai authorities approved the introduction of the FSC provided that it did not exceed a certain amount, it is nevertheless apparent from the memorandum drafted by a legal expert that, between 2000 and 2002, some carriers unilaterally introduced FSCs in the absence of any legislation. In addition, the minutes of a meeting organised by the DCA on 24 March 2003 refer to a ‘war risk surcharge’ on account of the conduct of certain European carriers, which tends rather to establish that the FSC was not regulated in Thailand until that date.

301 The applicants have therefore not adduced proof of a regulatory regime in force or of irresistible State pressures in Thailand between 2000 and 2003.

302 Third, as regards 2004, it should first of all be noted that only the email exchange which took place in August 2004 refers to the DCA’s letter of 9 August 2004. Furthermore, it is true that it is apparent from the English translation of that letter that the DCA ‘would like all [carriers] to coordinate to maintain their FSC that DCA previously approved’. However, that exchange of emails states that the instruction of the DCA was provisional, pending the examination of the new request made by the ACBA by letter of 10 June 2004. The conditions under which the FSC ‘previously approved’ was submitted to the DCA are not specified. Consequently, it cannot be inferred from that email exchange that the DCA required carriers to coordinate with one another before submitting an application relating to the FSC, or whether it examined collective applications that originated in coordination initiated by the carriers themselves within the ACBA. Moreover, it is apparent from that email exchange that the carriers freely discussed the date on which the new FSC would be introduced in connection with a risk of loss of profit on account of transactions already effected by their customers, which tends rather to establish that the carriers had a certain degree of autonomy in that regard and that certain details, at the very least, of the FSC were the subject of coordination between operators which did not arise from State coercion.

303 Next, the only consistent elements from CPA’s statement, the DCA’s letter of 14 May 2004, the exchange of emails in December 2004 and the memorandum by the legal expert are that the DCA sent an initial letter to the carriers on 14 May 2004 requesting them to maintain the FSC rates previously approved pending the adoption of legislation in that regard, and, following the ‘No 2/2547 meeting’, adopted a resolution transcribed in a letter dated 3 December 2004, allowing carriers to charge an FSC according to a fuel index, the details of which are specified.

304 On the one o, it is not apparent either from the DCA’s letter of 14 May 2004, from the email exchange in August 2004 or from the DCA’s letter of 3 December 2004 that the DCA required carriers to collude, or even put pressure on them, in order to establish both the FSC rates provisionally applicable or the FSC index adopted by the resolution taken following the ‘No 2/2547 meeting’. CPA’s statements tend rather to establish that it was on the initiative of a carrier that the carriers coordinated with each other within the ACP with the aim of establishing an index to submit to the DCA for approval. Such material cannot therefore be regarded as objective, relevant and consistent evidence that, in Thailand, tariff coordination between carriers was unilaterally imposed on the applicants by the national authorities through the exercise of irresistible pressures, within the meaning of the case-law cited in paragraph 236 above.

305 On the other hand, the only document that specifically demonstrates the existence and content of Thai legislation on the FSC is the DCA’s letter of 3 December 2004, which referred to the resolution adopted following the ‘No 2/2547 meeting’ allowing carriers to charge a FSC according to a fuel index. It is apparent from that letter that the fuel index ‘is permitted’ depending on certain criteria used for charging the FSC. Furthermore, the various criteria which are established specify, for the most part, that the FSC ‘can be charged’ when they are applicable. The only mandatory criteria are those relating to the cancellation of the FSC where the average fuel index is lower than 100 for 15 days, and to the introduction of the FSC where the average fuel index is higher than 125 for 15 days.

306 Such a resolution, which clearly leaves a discretion as regards the charging of the FSC and the determination of its rate, cannot be regarded as a regulatory framework which removed all autonomy of carriers in determining the FSC applied.

307 It follows from all the foregoing that the applicants have failed to substantiate their claims that tariff coordination between carriers was unilaterally imposed by the Thai authorities through the exercise of irresistible pressures, or that the system established by the DCA eliminated all tariff competition between carriers and that the agreements on surcharges concerning traffic originating in Thailand would not have affected trade between EU Member States (see also paragraph 271 above).

308 Consequently, the applicants’ arguments relating to Thailand must be rejected.

309 It follows from all the foregoing that the complaint alleging errors of assessment of the facts in the examination of the regulatory regimes of Hong Kong, Japan and Thailand must be rejected, as must the third part of the first plea in its entirety.

(c) Fourth part, alleging that the Commission has failed to establish to the requisite standard any link between the various aspects of the single and continuous infringement

310 The applicants claim that the Commission has failed to establish to the requisite legal standard any link between the various aspects of the single and continuous infringement. That is the case as regards (i) the FSC, the SSC and the refusal to pay commission and (ii) the various instances of local conduct adopted on distinct markets.

(1) The inclusion in the single and continuous infringement of the FSC, the SSC and the refusal to pay commission

311 The applicants submit, in essence, that the existence of a link of complementarity between the FSC, the SSC and the refusal to pay commission to freight forwarders has not been established to the requisite standard. In support of that proposition, the applicants put forward five complaints. They refer, first, to the single anticompetitive objective relied on, secondly, to the existence of a single product or service to which the conduct at issue related, thirdly, to the involvement of the same undertakings in the different aspects of the infringement at issue, fourthly, to the single nature of the infringement at issue and, fifthly, to the discussion in parallel of the various aspects of the single and continuous infringement.

312 According to the case-law, an infringement of the prohibition in principle laid down in Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’, because their identical object distorts competition within the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C 441/11 P, EU:C:2012:778, paragraph 41 and the case-law cited).

313 When determining whether there has been a single infringement and an overall plan, the fact that the various actions of the undertakings form part of an ‘overall plan’, because their identical object distorts competition within the internal market, is decisive. For the purposes of that assessment, the at least partial identity of the undertakings concerned (see, to that effect, judgment of 13 September 2013, Total Raffinage Marketing v Commission, T 566/08, EU:T:2013:423, paragraphs 265 and 266 and the case-law cited), and the various material, geographic and temporal overlaps between the acts and the conduct at issue may be relevant.

314 This is particularly the case for the identical nature of the goods or services concerned, the identical nature of the detailed rules for implementation, whether the natural persons involved on behalf of the undertakings are identical and whether the geographical scope of the practices at issue is identical (judgment of 17 May 2013, Trelleborg Industrie and Trelleborg v Commission, T 147/09 and T 148/09, EU:T:2013:259, paragraph 60).

315 The existence of links of complementarity between the various instances of conduct at issue, in the sense that each of them is intended to deal with one or more consequences of the normal pattern of competition, and, through interaction, contribute to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of a global plan having a single objective, may also constitute objective evidence of the existence of an overall plan aimed at attaining a single anticompetitive objective (see, to that effect, judgments of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission, T 446/05, EU:T:2010:165, paragraph 92 and the case-law cited, and of 16 September 2013, Masco and Others v Commission, T 378/10, EU:T:2013:469, paragraphs 22, 23 and 32 and the case-law cited).

316 However, contrary to what is suggested by the applicants, it is not necessary, for the purpose of characterising various instances of conduct as a single and continuous infringement, to ascertain whether they present such links. The concept of a ‘single objective’ requires that it be ascertained whether there are any elements characterising the various instances of conduct forming part of the infringement which are capable of indicating that the instances of conduct in fact implemented by other participating undertakings do not have an identical object or identical anticompetitive effect and, consequently, do not form part of an ‘overall plan’ as a result of their identical object distorting the normal pattern of competition within the internal market (see, to that effect, judgment of 26 January 2017, Duravit and Others v Commission, C 609/13 P, EU:C:2017:46, paragraph 121).

317 According to the case-law, those factors must, as the applicants observe, be assessed as a whole (judgment of 16 September 2013, Masco and Others v Commission, T 378/10, EU:T:2013:469, paragraph 58).

318 In the present case, in recitals 872 to 883 of the contested decision, the Commission relied on six factors in order to conclude that the conduct at issue formed part of a single infringement. Those factors are, first, the existence of a single anticompetitive aim (recitals 872 to 876), secondly, the fact that that conduct related to a ‘single product/service’, namely ‘the provision of [freight] services and the pricing thereof’ (recital 877), thirdly, the fact that the undertakings involved in the various arrangements at issue were the same (recital 878), fourthly, the single nature of the infringement (recital 879), fifthly, the fact that the discussions in which the carriers at issue participated took place in parallel (recital 880) and, sixthly, the involvement of the majority of the incriminated carriers in the three elements of the single and continuous infringement (recitals 881 to 883).

319 In recital 900 of the contested decision, the Commission added to those factors the fact that the same individuals were involved in the various acts in question.

320 The applicants’ arguments relate solely to the five factors referred to in recitals 872 to 880 of the contested decision. It is therefore necessary to examine whether those arguments are capable of demonstrating that, assessed as a whole, the various factors relied on in the contested decision were not sufficient to establish that the aspects relating to the FSC, the SSC and the refusal to pay commission formed part of a single infringement.

(i) The first complaint, relating to the single anticompetitive aim relied on

321 The applicants claim that the single anticompetitive aim described in recitals 872 to 875 of the contested decision is no more than an aim of distorting competition, which is an insufficient basis on which to conclude that there was a single infringement. It is, moreover, notable that the evidence that the Commission invokes in support of its analysis in recital 875 of the contested decision is based entirely on submissions of the ‘core group’ which cannot be transposed to the conduct of the other incriminated carriers.

322 The Commission disputes the applicants’ line of argument.

323 It is true that, as the applicants submit, the concept of a single objective cannot be determined by a general reference to the distortion of competition in a given sector, since an impact on competition, whether as object or effect, is an essential element of any conduct covered by Article 101(1) TFEU. Such a definition of the concept of a single objective is likely to deprive the concept of a single and continuous infringement of part of its meaning, since it would have the consequence that different instances of conduct which relate to a particular economic sector and are prohibited under Article 101(1) TFEU would have to be systematically characterised as constituent elements of a single infringement (judgments of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission, T 446/05, EU:T:2010:165, paragraph 92, and of 30 November 2011, Quinn Barlo and Others v Commission, T 208/06, EU:T:2011:701, paragraph 149).

324 In the present case, the Commission did not confine itself to determining the single anticompetitive objective pursued by the incriminated carriers by a general reference to the distortion of competition in the freight sector. In recital 872 of the contested decision, the Commission found that that aim ‘[was to distort] competition in the [freight] sector … by coordinating [the incriminated carriers’] pricing behaviour with respect to the provision of [freight] services by eliminating competition concerning the charging, amount and timing of the FSC, the SSC and the [refusal to pay commission] to forwarders …’. In recital 874 of that decision, the Commission referred to a ‘network of contacts which ensured that discipline was maintained in the market and that increases arising from the fuel indices were to be applied in full and in a coordinated way thus removing pricing uncertainty’. The Commission added that ‘this action was extended to the SSC where the parties again sought to remove pricing uncertainty’ and that ‘[that] was reinforced’ by the refusal to pay commission on surcharges which ‘ensured that pricing uncertainty, which could have arisen from competition on commission payments [in the context of negotiations with freight forwarders], remained suppressed’. In recital 899 of that decision, the Commission stated that the ‘overall aim’ was ‘to agree on pricing or at least to remove pricing uncertainty in the [freight] sector in respect of the FSC, the SSC and the refusal to pay commission’.

325 The argument that the statements cited in recital 875 of the contested decision correspond to the conduct of the members of a possible ‘core group’ of carriers and cannot be transposed to the other incriminated carriers cannot succeed. It should be observed that it is not apparent from recital 875 of the contested decision that those statements all made a distinction between the carriers at issue according to whether or not they belonged to a possible ‘core group’ or were applicable only to some of them. Those statements thus include that of Cargolux, from which it is apparent, according to that recital, that the contacts were designed to ensure that the competitors took the same steps.

326 It follows that this complaint must be rejected.

(ii) The second complaint, relating to the existence of a single product or service to which the conduct at issue allegedly related

327 The applicants submit that the Commission erred in finding that the conduct at issue concerned a single product/service. According to the applicants, air freight services from a given origin country or region to different destination countries or regions constitute distinct product markets which are sold in distinct national or regional geographic markets. Moreover, since the Commission refused to define the relevant markets, the argument based on the alleged existence of a single product or service constitutes a breach of the ‘essential requirements of legal certainty’.

328 The Commission disputes the applicants’ line of argument.

329 As a preliminary point, it should be borne in mind that for the purposes of applying Article 101(1) TFEU, the reason for defining the relevant market is to determine whether an agreement is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the internal market. There is thus an obligation on the Commission to define the market in a decision applying Article 101(1) TFEU only where it is impossible, without such a definition, to determine whether the agreement, decision by an association of undertakings or concerted practice at issue is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the internal market (see judgment of 27 February 2014, InnoLux v Commission, T 91/11, EU:T:2014:92, paragraph 129 and the case-law cited).

330 However, in the present case, the applicants do not allege that it was impossible to determine whether the single and continuous infringement had as its object the restriction and distortion of competition within the internal market and was liable to affect trade between Member States without first defining the market in question.

331 In those circumstances, it cannot be considered that it was necessary to define the relevant market in order to determine whether the single and continuous infringement was liable to affect trade between Member States. The Commission was therefore right to find, in recital 74 of the contested decision, that it was not required to define that market and, consequently, refrained from doing so.

332 The Commission was also right to find, in recital 877 of the contested decision, nevertheless that the ‘arrangements concern[ed] the provision of airfreight services and the pricing thereof’ and to refer to a ‘single product/service’.

333 Where there are infringements of Article 101 TFEU such as that at issue in the present case, it is the agreements and the activities of the cartel which determine the relevant markets (see, to that effect, judgment of 27 February 2014, InnoLux v Commission, T 91/11, EU:T:2014:92, paragraph 131 and the case-law cited).

334 As was held in paragraphs 216 to 224 above, the Commission was correct to conclude that the surcharges were measures of general application which were intended to be applied ‘on all routes, on a worldwide basis’ and that the refusal to pay commission ‘was equally general in nature’.

335 It follows that the members of the cartel at issue themselves determined the products or services which were the subject of their discussions and concerted practices by including freight services in their discussions, without distinction according to their place of departure or origin, other than to make adjustments on the basis of the local conditions (footnote 1323 to the contested decision).

336 The Commission was therefore justified in classifying the supply of freight services as a ‘single service’, as it described them in recitals 14 to 18 of the contested decision.

337 The present complaint must therefore be rejected.

(iii) The third complaint, relating to the involvement of the same undertakings in the various aspects of the infringement at issue

338 The applicants submit that the fact that the same undertakings participated in the various aspects of the infringement at issue is not by itself a strong indicator of complementarity, as is demonstrated by the Commission’s decision-making practice.

339 The Commission disputes the applicants’ line of argument.

340 It should be borne in mind that, when determining whether there has been a single infringement and an overall plan, the fact that the undertakings involved in the various actions in question were identical may be taken into account (see paragraph 313 above). As the Commission correctly observed in recital 878 of the contested decision, that identity need not be perfect, but may be partial (see, to that effect, judgments of 27 February 2014, InnoLux v Commission, T 91/11, EU:T:2014:92, paragraph 128, and of 9 September 2015, Samsung SDI and Others v Commission, T 84/13, not published, EU:T:2015:611, paragraph 43).

341 The Commission cannot therefore be criticised for relying, in recital 878 of the contested decision, on the fact that the undertakings which participated in the aspects relating to the SSC, the FSC and the refusal to pay commission were the same as a factor which, among others, tended to demonstrate that those three aspects formed part of a single infringement.

342 As regards the recent decisions in which the Commission has recognised the existence of separate infringements despite the fact that the undertakings which participated in those infringements were the same, it is sufficient to note that they do not in any way rule out the possibility that the fact that the undertakings involved in the various acts at issue were the same is one of a number of factors relevant for the purposes of classifying them as a single infringement.

343 The present complaint must therefore be rejected.

(iv) The fourth complaint, relating to the single nature of the infringement at issue

344 The applicants dispute the analysis of the ‘single nature of the infringement’ in recital 879 of the contested decision. First, the reference to the relationship between the various aspects of the single and continuous infringement and the pricing of the freight services is merely a restatement of the general aim referred to in recital 872 of that decision. Secondly, the evidence does not support the thesis that a pre-existing network of contacts ‘established’ to coordinate introduction and implementation of the FSC was ‘extended’ to the SSC. Examination of the contacts relating respectively to the FSC and the SSC reveals differences in nature, scope and also in so far as concerns the individuals involved. Thirdly, the finding that the incriminated carriers were able to coordinate their position regarding payment of commission is based on an incorrect assumption that the incriminated carriers would not have applied the surcharges in a counterfactual scenario. There is no factual support in the contested decision for this assumption, which is inconsistent with the previous use of an FSC for air freight services (described in recital 114) and with the continued application of the FSC and SSC after February 2006, without any objection from the Commission. In reality there would have been significant surcharges in such a scenario and the conditions that triggered forwarder demands for additional payments would have still applied. Fourthly, it is incorrect to find that the refusal to pay commission blocked carriers from giving discounts on surcharges.

345 The Commission disputes the applicants’ line of argument.

346 It should be observed that, in recital 879 of the contested decision, the Commission found that the three aspects of the single and continuous infringement were unique. That recital states as follows:

‘The infringement is concerned with price coordination. Fundamentally, all of the various elements are concerned with pricing matters, more particularly surcharges. … Pricing contacts between carriers initially started in respect of the FSC and spread to the introduction and application of the SSC with the aim of eliminating competition with respect to the application and level of these surcharges. As the FSC and SSC were kept as a discrete element of the overall price, distinct from rates, carriers were able to further cooperate in refusing to pay commission on surcharges, which would otherwise have been payable if part of rates. This ensured that surcharges did not become subject to competition through the negotiation of commission (in fact discounts on the surcharges) with customers. The contacts concerning the FSC, the SSC and the refusal to pay commission … therefore displayed a link of complementarity, in that each of them was intended to deal with one or more consequences of the normal pattern of competition, and, through that interaction, contribute to the attainment of the single objective desired by those responsible, within the framework of an overall plan. The anticompetitive contacts directly concerned the level of surcharges and ultimately the level of the final price payable by customers.’

347 It is necessary to examine whether the applicants’ arguments are capable of showing that those assessments are vitiated by error.

348 It must be observed at the outset that the applicants are not justified in criticising the Commission for having reproduced, in recital 879 of the contested decision, elements which it had already set out in recitals 872 to 874 of that decision. It is apparent from recital 879 of that decision that those elements were intended to introduce the Commission’s analysis as to the existence of a link of complementarity between the surcharges, on the one hand, and the refusal to pay commission, on the other.

349 Nor are the applicants justified in complaining that the Commission relied on an incorrect assumption that the incriminated carriers would not have applied the surcharges in a counterfactual scenario, in order to find that the incriminated carriers were able to coordinate their position regarding payment of commission. In recital 879 of the contested decision, the Commission merely stated that, ‘as the FSC and SSC were kept as a discrete element of the overall price, distinct from rates, carriers were able to further cooperate in refusing to pay commission on surcharges, which would otherwise have been payable if part of rates’. However, that assessment does not indicate or assume that the incriminated carriers would not have applied any surcharge if they had not coordinated with one another. Nor does it assume that the freight forwarders would have refrained from demanding the payment of commission if the surcharges had not been coordinated.

350 Moreover, the applicants cannot maintain that the refusal to pay commission was merely the ‘response of [carriers] to the attempt of forwarders as a group to assert a right to a payment of commissions for surcharge collection for all forwarders’.

351 It is apparent, admittedly, from recitals 675 to 702 of the contested decision that the issue of the payment of commission was the subject of differing legal interpretations between the carriers and the freight forwarders. However, the incriminated carriers did not merely establish a common position in that regard in order to defend it in a coordinated manner before the competent courts or to promote it collectively before the public authorities and other professional associations. On the contrary, the incriminated carriers acted in concert by agreeing, at a multilateral level, to refuse to negotiate the payment of commission with freight forwarders and to grant them discounts on the surcharges. Thus, in recital 695 of the contested decision, the Commission referred to an email of 19 May 2005, in which a regional manager of Swiss in Italy states that ‘[all the participants in a meeting held on 12 May 2005 had] confirmed that [they would] not accept any FS[C]/SS[C] remuneration’. In recital 696 of that decision, reference is made to an internal email of 14 July 2005 in which CPA states that ‘[all the participants in a meeting held the previous day] reconfirmed the firm intention not to accept any negotiation in’ the payment of commission. Also, in recital 700 of that decision, the Commission referred to an internal email in which an employee of Cargolux informed its head office that a meeting was held ‘with all [carriers] operating at [Barcelona] airport’ and stated that ‘it was a general opinion that we [should] not pay any [commission] on surcharges’.

352 It is also apparent from the contested decision that several carriers exchanged information, at a bilateral level, in order to assure each other that they would continue to adhere to the refusal to pay commission which they had previously agreed. By way of illustration, recital 688 of that decision describes a telephone conversation of 9 February 2006 during which Lufthansa asked AF whether its position on the refusal to pay commission remained unchanged.

353 The fact that the refusal to pay commission did not prevent the applicants from granting freight forwarders discounts on surcharges does not detract from its object, from which the carriers may or may not have departed individually.

354 It should be noted, however, that the Commission neither explained what it meant by the extension to the SSC of the contacts relating to the FSC, nor did it enable the General Court to identify the evidence on which it based its analysis.

355 However, since the applicants have failed to call into question the validity of the other grounds on which recital 879 of the contested decision is based, which on their own support the conclusion set out in that recital (see paragraphs 348 to 353 above), that conclusion remains well founded.

356 It follows that this complaint must be rejected.

(v) The fifth complaint, relating to the discussions in parallel of the various aspects of the single and continuous infringement

357 The applicants claim that, far from providing numerous examples of discussions in parallel concerning the FSC, the SSC or the refusal to pay commission, the evidence cited in recital 880 of the contested decision is in fact very limited. The Commission thus cites only one document that records a meeting where both the SSC and the FSC were discussed and refers only to two documents describing meetings at which both the FSC and the refusal to pay commission were discussed. It is also notable that four of the five examples provided in the contested decision concern discussions among the ‘core group’.

358 The Commission disputes the applicants’ line of argument.

359 It should be observed that, in recital 880 of the contested decision, the Commission found that surcharges and the refusal to pay commission were ‘frequently discussed side by side in the same competitor contact’. In support of that finding, the Commission stated that ‘there are numerous instances of this in [its] file’. According to the Commission, those ‘instances’ ‘includ[ed]’ the contacts at issue described in recitals 387, 393, 503, 530, 560, 640, 695 and 697 of the contested decision.

360 It must be held that those eight contacts establish that the surcharges and the refusal to pay commission were ‘frequently discussed side by side in the same competitor contact’.

361 Thus, in the first place, recital 387 refers to an email of 23 August 2004, in which a Martinair employee stated that a meeting between the ‘European bosses’ of five incriminated carriers would take place on the following Thursday. In the second indent of recital 880 of the contested decision, the Commission found that ‘[surcharges were discussed] in general terms’ at that meeting.

362 It is true that, as the applicants observe, Martinair’s email of 23 August 2004 does not expressly mention the SSC. The applicants are not, however, justified in inferring from this that the SSC was not discussed at the meeting on the following Thursday. It should be noted that, in recital 387 of the contested decision, the Commission relied on Martinair’s leniency statement in order to find that that meeting had taken place in Amsterdam (Netherlands) and had included a ‘general discussion on the market, [a sharing of] market experiences’ and an exchange on ‘surcharges in general terms’. Since the months which followed and preceded that meeting saw the carriers concerned hold discussions on several occasions regarding the SSC and in the absence of any other explanation, the Commission was entitled to infer from that use of the plural that the discussion had also concerned the SSC.

363 In the second place, in recital 393 of the contested decision, the Commission referred to an email of 13 July 2004 from Martinair entitled ‘European Carrier Drink (ECD) evaluation’. That email concerned a meeting the previous evening between several incriminated carriers. The applicants do not dispute that the discussions concerned both the FSC and the SSC or that it was decided at that meeting that: ‘we all agreed that having a small informal session on a regular basis is very useful’.

364 In the third place, in recital 503 of the contested decision, the Commission referred to a BAR CSC meeting of 11 July 2005, at which both the FSC and the refusal to pay commission were discussed. It is true that those two subjects were recorded under separate headings in the minutes of the meeting. It should be noted, however, that those subjects were connected in the minds of the participants. Thus, the minutes of the meeting state inter alia as follows:

‘[The] BAR-CSC has received from [HAFFA] a letter proposing a 5% collection fee on all pass-on surcharges (such as fuel and security) be commissioned to [members of HAFFA] on all [air waybills] issued in Hong Kong …

[The] BAR-CSC is concerned about such [a] commission scheme due to the large amount of money involved as well as the already insufficient coverage of [the FSC] on [the] incremental fuel cost from oil price fluctuation as mentioned in [the item relating to the FSC]’.

365 In the fourth place, in recital 530 of the contested decision, reference is made to a meeting of 19 October 2005 between AF and Lufthansa. Contrary to the applicants’ submission, it is apparent from that recital that that meeting did not relate solely to the FSC. As the Commission correctly observes, examination of that recital tends to indicate that that meeting also concerned the refusal to pay commission. It is apparent from that recital, which is entirely consistent with the documents submitted in Annexes A.15.E and A.15.H to the application, that AF and Lufthansa ‘assured each other of the consistent application of the surcharges, agreed that no further unilateral measures, such as the capping of the FSC by AF, would be repeated and that the forwarders should not receive a commission on the surcharges’.

366 In the fifth place, in recitals 560, 640, 695 and 697 of the contested decision, reference is made to discussions in the context of the ‘BLACKS’ initiative (name derived from the acronyms BA (British Airways), LH (Lufthansa), AF, CV (Cargolux), KL (KLM) and Swiss) in Italy. In recital 880 of that decision, the Commission found that those discussions had covered the issues of the FSC, the SSC and the refusal to pay commission. The applicants do not dispute this, but maintain, in essence, that none of those discussions related to several aspects of the infringement at issue jointly.

367 That line of argument is incorrect.

368 First, in recital 560 of the contested decision, the Commission described, in general terms, the ‘regular meetings in Italy in the framework of the so-called BLACKS initiative … the purported purpose of which was to discuss security issues’. It added that ‘further topics were discussed during these meetings that included the consistent application of the FSC mechanism and agreement between the participants to refuse the demand of the Italian forwarder association, ANAMA, to pay a commission on the surcharges’. The document on which the Commission relies, which the applicants appended to their application, confirms that interpretation. It is expressly stated in that document that, ‘besides security issues’, the carriers discussed, at the BLACKS meetings, two topics, namely ‘counter[ing] complaints by … ANAMA and … achiev[ing] a consistent application of [the FSC] in Italy’.

369 Second, in recital 640 of the contested decision, the Commission relies on an internal Lufthansa email of 28 September 2004. In that email, Lufthansa’s director of sales for Italy and Malta informs his colleagues about the creation of BLACKS and explains that its objectives are to ‘coordinate security measures’ and, ‘of course, to … streamline our surcharge policy’. In the light of the elements described in paragraph 368 above, it was legitimate to take the view that, contrary to what the applicants claim, the reference to the ‘surcharge policy’ concerned not only the SSC, but also the FSC.

370 Third, in recital 695 of the contested decision, reference is made to an internal email of 19 May 2005 in which the Regional Manager of Swiss in Italy reported to his colleagues ‘strictly confidential’ information, ‘especially for antitrust reasons’. It is apparent from that email that, at a meeting of 12 May 2005, several of the incriminated carriers ‘all confirmed that they will not accept any FS[C]/SS[C] remuneration’. However, it is not apparent from that email that the discussions concerned the surcharges.

371 Fourth, in recital 697 of the contested decision, the Commission refers to an internal CPA email of 14 October 2005. It is true that this email, the subject of which is ‘5% COMM ON SURCHARGES –Italy’ concerns the refusal to pay commission. In that email, the CPA manager for Italy states that she had succeeded in obtaining the text of the reply from Lufthansa’s head office to a letter from the freight forwarders requesting payment of a commission on surcharges and states that most of the recipients of that letter do not intend to reply to it. It must, however, be observed that the CPA manager for Italy prefaces that information by referring to an imminent increase in the FSC: ‘since the situation will become hotter and hotter due to [a] EUR 0.10 FSC increase in a month[’s] time …’

372 It follows from the foregoing that the Commission was entitled, without committing any error, to infer the existence of joint discussions on various aspects of the infringement at issue from recitals 387, 393, 503, 530, 560, 640 and 697 of the contested decision; only the reliance on recital 695 of that decision was incorrect in that context.

373 The applicants’ argument that it ‘is notable that there is no indication of any parallel discussion during the critical period in September-October 2001’ cannot succeed. The absence on which the applicants rely can be explained by the particular features of the operation of the cartel at issue. In recital 884 of the contested decision, the Commission stated that the ‘frequency of the contacts between the carriers varied over time’. It found that the contacts relating to the FSC were ‘particularly frequent where the fuel indices approached a level at which an increase or decrease would be triggered but may have been less frequent at other times’. However, it is not apparent from the contested decision that the indices approached a level that warranted the adjustment of the FSC level being discussed jointly with the SSC in September or October 2001. It is clear from recitals 184 to 208 of the contested decision that it was only at the end of October 2001 that the carriers concerned began to express their concerns regarding the evolution of the indices (recitals 185 and 205) and in December 2001 that it was decided to withdraw the FSC accordingly (recitals 196 to 198 and 201).

374 As regards the argument that four of the five examples identified in recital 880 of the contested decision concern discussions within a ‘core group’ of carriers, that argument is unfounded even if both the existence of such a group and the applicants’ description of it were accepted (see, also paragraphs 645 to 664 below). In paragraph 2 of the application, the applicants define that group as follows:

‘A central feature of the coordination described by [Lufthansa] involved extensive contacts in the EU between [Lufthansa’s] headquarter personnel and headquarter personnel at its principal EU-based competitors: [AF], … British Airways …, Cargolux … and KLM …, which [Lufthansa] referred to as the “so-called core group” (“Core group”)’.

375 However, two of the examples in which the applicants consider that they intervened within the ‘core group’ also involved Martinair (recital 880, first and second indents, of the contested decision).

376 In addition, it is apparent from paragraph 359 above that the eight contacts cited in recital 880 of the contested decision were expressly mentioned only by way of illustration and are therefore not intended to be exhaustive. The contested decision identifies several other items of evidence which tend to show that the various aspects of the single and continuous infringement were discussed jointly, including outside a possible ‘core group’. That applies in particular to recitals 368 and 667 of the contested decision, which refer to an email from Martinair of 12 May 2004 to the BAR CSC Executive Committee; that email refers to the proposed increase of the FSC and the SSC. That is also the case with recital 369 of the contested decision, which refers to the minutes of a BAR CSC Executive Committee meeting of 17 May 2004, at which sensitive information was exchanged concerning the FSC and the SSC.

377 In the light of all the foregoing, the present complaint must be rejected, as must all the complaints seeking to challenge the inclusion in the single and continuous infringement of the FSC, the SSC and the refusal to pay commission.

(2) The inclusion in the single and continuous infringement of various instances of local conduct adopted on distinct markets

378 The applicants complain that the Commission included in the single and continuous infringement various instances of local conduct adopted on distinct markets. According to the applicants, there is no causal link between those instances of conduct and those which occurred at head office level. Significant elements characterising the various instances of local conduct are capable of indicating that that conduct did not have an identical object or identical anticompetitive effect and did not therefore form part of the same overall plan as the conduct adopted at head office level.

379 The surcharges were an established mechanism for recovering increases in fuel costs and the consequence of IATA’s proposal for an industry standard FSC was that there was very little difference between the various FSC mechanisms regarding both levels and timing. This represents ‘conscious adaptation’ to market conditions which is not prohibited by Article 101 TFEU. Since FSC levels were transparent, it was a rational strategy for carriers to align their FSC levels with those of the leading carrier or carriers in a given market, relying on lower freight rates (which were not transparent) to gain a market advantage where possible. This was not a ‘system’ devised by participants in a worldwide cartel to ensure effective local implementation, but rather the natural result of market conditions.

380 It was rational for carriers to exchange information on FSC adjustments at the local level because it helped them do what they would have done anyway – follow the local leader – particularly since in many of these local markets such contacts were not unlawful. In some markets, including Switzerland, a request from local forwarders for a central source of information on FSC adjustments was the direct impetus for information exchange. On other markets, such as Hong Kong, Japan or Thailand, the trigger for the information exchange was a need to comply with the policy applied by the local regulator in approving surcharge changes. These reasons for local contacts applied regardless of whether there were contacts between carriers at headquarters level.

381 Moreover, it was incorrect to find, in recital 876 of the contested decision, that the broad object of the local conduct was to eliminate competition among carriers with respect to the surcharges and that it therefore shared the same object with the contacts at head office level. That is not, in any event, sufficient to create a link between those distinct forms of conduct. Evidence in the file demonstrates that in countries where competition was alleged to have been eliminated, the surcharge levels actually differed across carriers with the notable exception of the ‘core group’, in which those levels were the same.

382 The Commission disputes the applicants’ line of argument.

383 As was stated in paragraph 214 above, it is apparent from recital 1046 of the contested decision that the ‘arrangements [of the cartel at issue] were in many cases organised centrally’ and implemented locally by the local personnel. According to the Commission, it was a question of enabling the local personnel to adapt to local conditions measures of general application, ‘on all routes, on a worldwide basis’, namely surcharges and the refusal to pay commission (recitals 876, 889, 890 and footnote 1323).

384 Since the Court has already held that the Commission was entitled, without committing any error, to conclude that the surcharges and the refusal to pay commission were generally applicable ‘on all routes, on a worldwide basis’ (see paragraphs 216 to 224 above), it is appropriate to examine whether the applicants are justified in maintaining that the implementation of the surcharges at local level was merely a matter of ‘conscious’ and lawful ‘adaptation’ to market conditions or constituted, as the Commission found, the implementation at local level of arrangements generally agreed centrally.

385 On the one hand, the local personnel received instructions from its headquarters regarding the implementation of the surcharges and reported to them (see recitals 171, 226, 233, 284, 381, 584 and 594). The local personnel were, moreover, constrained by the decisions taken at headquarters level. Thus, in recital 237 of the contested decision, reference is made to an internal email in which a Qantas employee stated that almost every carrier in Hong Kong had indicated their intention to follow CPA, but that Qantas and several of the incriminated carriers, including the applicants, had stated that they had to seek instructions from their head offices before following CPA. In recital 295 of the contested decision, reference is made to the minutes of the BAR CSC meeting of 23 January 2003 in Singapore, which indicate that ‘member carriers commented that the fuel index has increased, but they have not received any instruction from their head offices to increase the [FSC]’. Similarly, in recital 414 of the contested decision, reference is made to an email from CPA’s local manager in Belgium, from which it is apparent that SAC ‘claimed initially that it [would also increase the FSC on 1 October 2004], but [that] then [it was] recalled by [its headquarters] to go for [4 October 2004]’, which had previously been the subject of several earlier contacts at headquarters level (recitals 406, 410 and 411).

386 On the other hand, it is apparent from the contested decision that coordination at local level often followed immediately after the announcements made at headquarters level. By way of illustration, following Lufthansa’s announcement on the introduction of the FSC on 28 December 1999, the matter was addressed in Hong Kong on 10, 13 and 19 January 2000 (recitals 147 to 149) and India in the same month (recitals 151 and 152). The same is true of Lufthansa’s announcement of 17 February 2003 (recital 274), followed by contacts in Canada (recital 291) and Thailand (recital 298) on the same day and in Singapore the following day (recital 296). That is also the case for Lufthansa’s announcement of 21 September 2004 (recitals 409 to 411), followed on the same day by contacts in Hong Kong (recital 431) and in Switzerland on 23 and 24 September 2004 (recitals 426 and 427).

387 It follows that the Commission was entitled, without committing any error, to find that the local contacts were intended to implement, at local level and in view of local circumstances, the results of the concertation decided upon at headquarters level.

388 None of the applicant’s arguments is capable of calling that finding into question.

389 In the first place, the applicants cannot rely on the allegedly rational or natural nature of the surcharge system. It should be noted that the Commission did not take issue with the incriminated carriers for having adapted to market conditions, or even for having adopted a strategy of aligning the level of their FSC with that of locally dominant carriers by introducing surcharges. On the contrary, as is apparent in particular from recital 119 of the contested decision, the complaint against them is that they exchanged information and coordinated regarding the implementation of FSC, including at local level.

390 In the second place, as regards the alleged lawfulness of the exchanges of information in ‘many’ of the local markets in question, it is sufficient to note that, in the present case, it does not in any way prejudge their assessment under Article 101 TFEU or Article 53 of the EEA Agreement.

391 Moreover, the cases of Switzerland, Hong Kong, Japan and Thailand do not support the applicants’ line of argument. Thus, as regards Switzerland, it cannot be considered that it was the freight forwarders’ demands that encouraged the carriers to collude. As the Commission rightly points out, the first contact at issue which took place in the Air Cargo Council of Switzerland (‘the ACCS’) dates from January 2001 (recital 182 of the contested decision) and it is not apparent from the documents in the file that the contact was prompted by freight forwarders’ requests. Conversely, the freight forwarders’ requests relied on by the applicants date from May 2002.

392 As regards recital 181 of the contested decision, it should be noted that it does not, strictly speaking, describe a contact which might fall outside the Commission’s jurisdiction. In that recital, the Commission merely described ACCS and the role which it played in the cartel at issue from the beginning of 2001.

393 This being the case, it should be recalled that the Commission may rely on contacts prior to the infringement period in order to create an overall picture of the situation and thus corroborate the interpretation of certain items of evidence (judgment of 8 July 2008, Lafarge v Commission, T 54/03, not published, EU:T:2008:255, paragraphs 427 and 428). That is the case even if the Commission did not have jurisdiction to find and penalise an infringement of the competition rules prior to that period (see, to that effect, judgments of 30 May 2006, Bank Austria Creditanstalt v Commission, T 198/03, EU:T:2006:136, paragraph 89, and of 22 March 2012, Slovak Telekom v Commission, T 458/09 and T 171/10, EU:T:2012:145, paragraphs 45 to 52).

394 In the section of the contested decision entitled ‘Basic principles and structure of the cartel’, in recital 107, the Commission stated that its investigation had uncovered a worldwide cartel based on a network of bilateral and multilateral contacts, which took place ‘at various levels in the undertakings concerned … and in some instances related to various geographical areas’.

395 In recitals 109, 110, 876, 889 and 1046, and footnote 1323 to the contested decision, the Commission specified the detailed manner in which that organisation operated ‘at several levels’. According to the Commission, the surcharges were measures of general application that were not route-specific but were intended to be applied on all routes, on a worldwide basis. Decisions concerning surcharges were usually made at the headquarters level of each carrier. The head offices of the carriers were thus in ‘contact with each other’ when a change to the surcharge level was imminent. At local level, carriers coordinated with each other, partly to better implement the instructions received from their head offices and to adapt them to the local market conditions and regulations, partly to coordinate and implement local initiatives. In recital 111 of the contested decision, the Commission stated that the local Board of Carrier Representatives associations had been used for that purpose, in particular in Hong Kong and Switzerland.

396 The contact referred to in recital 182 occurred specifically in that context. First, that contact relates to the implementation of the surcharges in Switzerland. Second, it reflects at local level a decision to reduce the amount of the FSC previously taken centrally (see recitals 168 and 171). Third, it refers to an investigation addressed to the local representatives of various carriers to ‘consult their [headquarters]’ in this regard. Fourth, the contact took place in the framework of a Swiss association of carrier representatives.

397 The applicants have moreover failed to claim that the contact referred to in recital 182 of the contested decision did not support the interpretation of the other evidence relied on in order to establish the single and continuous infringement – evidence which is not alleged to fall outside the Commission’s jurisdiction. In that regard, it must be noted that the Commission describes, in the contested decision, as regards the FSC, the contacts underpinning the finding of infringement which took place from late 1999 until spring 2005 in Sections 4.3.4 to 4.3.18 (recitals 133 to 468). Thus, the contact relied on by the applicants represents a fraction of all the contacts on the basis of which the Commission established the existence of an infringement of Article 101 TFEU and Article 53 of the EEA Agreement prior to 1 June 2002 in respect of the routes for which it had jurisdiction and concerning the element relating to the FSC.

398 As regards Hong Kong, Japan and Thailand, it is apparent from the examination of the third part of this plea that the applicants cannot reasonably claim that ‘the trigger [for the information exchange] was a need to comply with the policy applied by the local regulator in approving surcharge changes’.

399 Nor, in the light inter alia of the matters set out in paragraphs 384 to 386 above, are the applicants justified in relying on the fact that, irrespective of the arguments put forward in the context of the third part of the first plea, relating to State coercion, in Hong Kong, Japan and Thailand, coordination between the incriminated carriers was the result of their subjective view that coordination was in practice required by the local regulatory authorities. It is apparent from the examination of the second complaint of the third part of the first plea that the items of evidence that might support that proposition are, for the most part, statements of weak probative value and are not, in any event, unequivocal.

400 In the third place, it should be noted that the applicants put forward only one argument in support of the complaint alleging an error in the finding in recital 876 of the contested decision that the object of local conduct and conduct adopted at head office level was the same. According to that argument, the surcharge levels actually differed across the incriminated carriers with the notable exception of the ‘core group’. However, the applicants have failed to explain how imperfect coordination of the FSC at local level shows that the local contacts and the contacts at head office level did not share the same object.

401 It follows that this part of the plea must be rejected, as must, accordingly, the first plea in its entirety.

4. The second plea in law, alleging errors of law and fact and errors of assessment in connection with the finding of an infringement in relation to the refusal to pay commission

402 The applicants claim that the Commission committed errors of law and fact and errors of assessment as regards the refusal to pay commission. This plea is divided into three parts, the first alleging errors in the classification of the refusal to pay commission as a restriction of competition ‘by object’, the second alleging failure by the Commission to prove the applicants’ participation in the element of the single and continuous infringement relating to the refusal to pay commission and the third alleging infringement of Article 101(3) TFEU.

(a) The first part, alleging errors in the classification of the refusal to pay commission as a restriction of competition ‘by object’

403 The applicants complain that the Commission erred in classifying the refusal to pay commission as a restriction of competition ‘by object’. An examination of the relevant legal and factual context – which is lacking in the contested decision – would have shown that the conduct at issue could not be analysed as a coordinated refusal to give discounts, or as any other form of price fixing. It was a response to a coordinated attempt by forwarders to alter standard contractual arrangements to establish a right to payment for collecting surcharges, that included attempts by a forwarder association to open multilateral negotiations, the threat by forwarders to invoice carriers for such services, or the actual issuance of such invoices. That initiative raised competition issues for the freight forwarders and infringed Section 8 of the Air Cargo Intermediary Agreement, which is set out in Annex A to IATA Resolution 805zz and to which freight forwarders wishing to participate in the IATA European Air Cargo Programme must subscribe.

404 According to the applicants, refusal by a firm to negotiate with its customers as a group regarding the right of those customers as a group to a specific discount does not constitute a refusal to pay a discount, particularly when such negotiations are specifically precluded by the applicable contractual provisions. The contacts by which carriers coordinated their positions in response to a proposal by an association of freight forwarders for joint negotiations do not, therefore, constitute coordination of their positions in respect of the payment of discounts either.

405 As regards the threat to invoice carriers for surcharge collection fees and the related threat to withhold payment of monies owed to carriers to cover the supposed cost of surcharge collection if payment of that commission was not forthcoming, it infringed Article 8 of the Air Cargo Intermediary Agreement and raised issues under Article 7(3) thereof.

406 Since the issue of such invoices is not valid where it has not been the subject of a prior bilateral agreement, a refusal by an airline to pay an invoice under these circumstances did not constitute a refusal to pay a discount. On the same basis, contacts between carriers by which they coordinated their positions in response to the sending of these invalid invoices did not constitute coordination of their position in respect of paying discounts, particularly where the carriers faced a genuine threat of legal action by the forwarders if payment was refused.

407 Moreover, the Commission cannot rely on the statements of members of the carriers’ staff cited in recitals 678, 680 or 695 of the contested decision. The classification of conduct as an infringement of Article 101(1) TFEU is an objective issue that involves the nature of the conduct in question and its inherent or likely effects and not the parties’ subjective understanding of that conduct.

408 The Commission disputes the applicants’ line of argument.

409 It should be borne in mind that, in order to be caught by the prohibition laid down in Article 101(1) TFEU, an agreement, a decision by an association of undertakings or a concerted practice must have ‘as [its] object or effect’ the prevention, restriction or distortion of competition in the internal market.

410 According to the settled case-law of the Court since the judgment of 30 June 1966, LTM (56/65, EU:C:1966:38), the alternative nature of that requirement, as shown by the conjunction ‘or’, leads, first of all, to the need to consider the precise object of the agreement (judgments of 26 November 2015, Maxima Latvija, C 345/14, EU:C:2015:784, paragraph 16, and of 20 January 2016, Toshiba Corporation v Commission, C 373/14 P, EU:C:2016:26, paragraph 24).

411 Thus, as was pointed out in paragraph 117 above and as the Commission correctly observed in recital 917 of the contested decision, referring correctly to the judgments of 6 July 2000, Volkswagen v Commission (T 62/98, EU:T:2000:180, paragraph 178), and of 25 October 2005, Groupe Danone v Commission (T 38/02, EU:T:2005:367, paragraph 150), there is no need to examine the effects on competition of an agreement or a concerted practice where its anticompetitive object is established.

412 According to the case-law, certain types of coordination between undertakings reveal a sufficient degree of harm to competition to be regarded as being restrictions ‘by object’, so that there is no need to examine their effects. That case-law arises from the fact that certain forms of coordination between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of competition (judgments of 11 September 2014, MasterCard and Others v Commission, C 382/12 P, EU:C:2014:2201, paragraphs 184 and 185, and of 20 January 2016, Toshiba Corporation v Commission, C 373/14 P, EU:C:2016:26, paragraph 26).

413 Consequently, it is established that certain collusive behaviour, such as that leading to horizontal price fixing by cartels, may be considered so likely to have negative effects, in particular on the price, quantity or quality of the goods and services, that it may be considered redundant, for the purposes of applying Article 101(1) TFEU, to prove that they have actual effects on the market. As was recalled in paragraph 131 above, experience shows that such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers.

414 As the Commission was fully entitled to observe, in essence, in recital 908 of the contested decision, it is clear from the case-law that that is true not only of conduct which consists in fixing the entire final price of the goods or services concerned, but also of conduct which fixes a part of that price (see, to that effect, judgments of 21 February 1995, SPO and Others v Commission, T 29/92, EU:T:1995:34, paragraph 146, and of 13 December 2001, Acerinox v Commission, T 48/98, EU:T:2001:289, paragraphs 114 and 115), and of conduct which is intended to ensure that the agreed pricing rules are not evaded, resulting in competition between the undertakings concerned (see, to that effect, judgment of 11 July 1989, Belasco and Others v Commission, 246/86, EU:C:1989:301, paragraph 18).

415 The fact remains that, as the applicants observe, the assessment of whether an agreement or concerted practice reveals a sufficient degree of harm to competition to be classified as a restriction of competition ‘by object’ presupposes, in particular, that regard be had to its objectives and the economic and legal context of which it forms a part. When determining that context, it is necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question (judgment of 11 September 2014, CB v Commission, C 67/13 P, EU:C:2014:2204, paragraph 53).

416 Such an examination cannot, however, lead the Court to assess the effects of the coordination concerned, since otherwise the distinction established in Article 101(1) TFEU would lose its effectiveness (see, to that effect, judgment of 11 September 2014, CB v Commission, C 67/13 P, EU:C:2014:2204, paragraphs 72 to 82).

417 As regards, in particular, horizontal price-fixing agreements, which represent particularly serious infringements of the competition rules, such an examination may be limited to what is strictly necessary in order to establish the existence of a restriction of competition ‘by object’ (see judgment of 27 April 2017, FSL and Others v Commission, C 469/15 P, EU:C:2017:308, paragraphs 106 and 107 and the case-law cited).

418 In recitals 908, 909, 1199 and 1208 of the contested decision, the Commission found that the conduct at issue was akin to a horizontal price-fixing cartel. In particular, in recital 909 of that decision, the Commission stated the following:

‘Price being the main instrument of competition, arrangements between competitors directed at the coordination of their behaviour in order to remove uncertainty in the market in respect of pricing matters, as described in this Section in relation to the FSC, SSC, and discounts on those surcharges will by their very nature prevent, restrict or distort competition within the meaning of Article 101(1) of the TFEU.’

419 That recital must be read in the light of recitals 874, 879 and 899 of the contested decision. As is apparent from recitals 874 and 899 of the contested decision, the refusal to pay commission was liable to reinforce the coordination relating to the surcharges. According to the Commission, it amounted to a concerted refusal to grant freight forwarders discounts on surcharges, by which the incriminated carriers ‘ensured that pricing uncertainty, which could have arisen from competition on commission payments [in the context of negotiations with freight forwarders], remained suppressed’ (recital 874 of that decision) and thus aimed to eliminate competition in respect of surcharges (recital 879 of that decision).

420 Contrary to the applicants’ submission, the Commission was correct to find, in recital 879 of the contested decision, that the commissions payment of which the freight forwarders claimed, were ‘in fact discounts on the surcharges’.

421 It is true that, as the applicants observe, the discounts claimed by the freight forwarders from 2004 were presented as commission on the collection of the surcharges from the shippers and that the carriers themselves used, in their contacts in that regard, the expressions ‘commission’ or ‘remuneration’, as is shown in particular in recitals 681 to 683, 685, 695, 696, 698 and 700 of the contested decision.

422 It is, however, common ground between the parties that ‘freight forwarders predominantly acted as customers of [carriers] rather than agents’. It is in that capacity that freight forwarders claimed a discount on the prices charged to them by carriers. On the other hand, it is not apparent from the documents in the file that freight forwarders provided carriers with surcharge collection services in respect of which they were owed a commission. The applicants have moreover failed to claim that the freight forwarders collected the surcharges from the shippers on their behalf. On the contrary, as is apparent from paragraphs 133 to 139 above, the surcharges were an element of the price of the freight services which it was reasonably foreseeable for the incriminated carriers that the freight forwarders would pass on to the shippers through an increase in the price of freight-forwarding services.

423 The applicants do not moreover put forward any argument capable of calling that analysis into question. As the applicants stated at the hearing, their line of argument is based on the statements of the freight forwarders themselves, which, however, cannot be claimed to be binding on the Commission.

424 It follows that the Commission was entitled to confine itself to an examination of the relevant economic and legal context limited to what was strictly necessary in order to classify the agreements and practices at issue as a restriction of competition ‘by object’.

425 Contrary to the applicants’ submission, the examination of the relevant economic and legal context carried out by the Commission in the contested decision satisfies those requirements. In recitals 909 and 916 of that decision, the Commission thus explained that ‘price [was] the main instrument of competition’, that the agreements and practices at issue were intended to ‘remove pricing uncertainty in the [freight] market …’ and thus to ‘[ensure] that discipline was maintained in the market and that increases arising from the fuel indices were … applied in full and in a coordinated way’. That analysis is based, inter alia, on Section 4 of that decision, which describes, in particular, the basic principles and structure of the cartel at issue. The Commission also describes, and specifically, the context in which freight forwarders’ requests for payment of commission were made (recitals 675 to 677). Lastly, the analysis in question must also be read in the light of the description of the freight sector and the applicable pricing arrangements in Section 2.1 of the contested decision.

426 Following a sufficient analysis of the relevant economic and legal context, the Commission therefore correctly found, in recitals 903 and 910 of the contested decision, that the agreements and practices at issue had the object of restricting competition, including in so far as they concerned the refusal to pay commission.

427 The applicants’ other arguments are not such as to show that the Commission was wrong to classify the refusal to pay commission as a restriction of competition ‘by object’.

428 In the first place, the applicants are not justified in maintaining that the alleged unlawfulness of the conduct of the freight forwarders, who, they complain, formed a ‘worldwide cartel’, justified a coordinated refusal of the incriminated carriers to grant them discounts. It must be borne in mind that an undertaking cannot rely on the conduct of other undertakings, even if it is unlawful or unfair, to justify an infringement of the competition rules (see, to that effect, judgments of 8 July 2004, Dalmine v Commission, T 50/00, EU:T:2004:220, paragraph 333, and of 12 July 2018, LS Cable & System v Commission, T 439/14, not published, EU:T:2018:451, paragraph 53) or to call into question the classification of that restriction as a restriction of competition ‘by object’ (see, to that effect, judgment of 7 February 2013, Slovenská sporiteľňa, C 68/12, EU:C:2013:71, paragraphs 19 and 21).

429 It is for public authorities and not private undertakings or associations of undertakings to ensure compliance with statutory requirements (judgment of 7 February 2013, Slovenská sporiteľňa, C 68/12, EU:C:2013:71, paragraph 20). Undertakings are not entitled to take the law into their own hands by substituting themselves for those authorities to penalise any infringements of EU competition law and by preventing, through measures adopted on their own initiative, competition within the internal market. That is particularly the case where there are legal means by which they may assert their rights before those authorities (see, to that effect, judgment of 12 December 1991, Hilti v Commission, T 30/89, EU:T:1991:70, paragraphs 117 and 118).

430 In the present case, the applicants have not shown, or even claimed, that such legal means were lacking. Moreover, they have not shown that they merely coordinated with one another in order to assert their rights before the competent authorities, or even to refuse to negotiate with freight forwarders (see paragraphs 351 and 352 above).

431 Moreover, in so far as the applicants rely on there having been no discussions among carriers on their intentions vis-à-vis individual freight forwarders, their line of argument is wholly irrelevant. Article 101(1) TFEU draws no distinction between an agreement or practice according to whether it relates to customers of the participants of an infringement individually or collectively.

432 In the second place, the applicants cannot maintain that the Commission’s assessment had to be based on objective factors and could not therefore take account of statements made by members of the carriers’ staff. It must be borne in mind that nothing prevents the competition authorities, the national courts or the Courts of the European Union from taking account of the parties’ intentions in determining whether an agreement or concerted practice is restrictive (judgments of 14 March 2013, Allianz Hungária Biztosító and Others, C 32/11, EU:C:2013:160, paragraph 37, and of 11 September 2014, CB v Commission, C 67/13 P, EU:C:2014:2204, paragraph 54). The anticompetitive intention of the parties may, inter alia, be apparent from their awareness that that agreement or concerted practice was restrictive of competition (see, to that effect, judgment of 8 November 1983, IAZ International Belgium and Others v Commission, 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82, EU:C:1983:310, paragraph 45).

433 Moreover, it is necessary to reject as ineffective the applicants’ argument that the reference to ‘that sounds [anticompetitive] to me’ in the British Airways internal email of 17 January 2005 cited in recital 678 of the contested decision referred not to the discussions on the refusal to pay commission, but to the freight forwarders’ use of the International Federation of Freight Forwarders Association (FIATA) as a means of exerting pressure on carriers. In the light of all the foregoing, the classification of the refusal to pay commission as a restriction of competition ‘by object’ remains well founded even if that were the case.

434 It follows that this part of the plea must be rejected.

(b) Second part, alleging that the Commission has failed to prove the applicants’ participation in the element of the single and continuous infringement relating to the refusal to pay commission

435 The applicants maintain that the Commission has not established that they participated in the element of the single and continuous infringement relating to the refusal to pay commission. They argue that there is no evidence on the file of contacts between them and other carriers on the subject of their respective intentions to grant a discount on surcharges to individual freight forwarders. According to the applicants, the evidence cited in the contested decision is all of lawful conduct, as is alleged in the context of the first plea in the present plea.

436 The Commission disputes the applicants’ line of argument.

437 It should be noted that this part of the plea is based on the premiss that (i) the element of the single and continuous infringement relating to the refusal to pay commission was a legitimate response to a worldwide cartel between freight forwarders and (ii) the contacts found against them did not concern their intentions vis-à-vis individual freight forwarders. As is apparent from the examination of the first part of the present plea, that premiss is incorrect.

438 This part must therefore be rejected.

(c) The third part, alleging infringement of Article 101(3) TFEU

439 The applicants submit that the conduct relating to the refusal to pay commission in any event fulfils the conditions for the application of Article 101(3) TFEU. They argue, in particular, that such conduct was part of the resolution of questions of interpretation, common to all carriers, raised by the implementation of certain clauses in standard contracts, such as those contained in the Air Cargo Intermediary Agreement, the utility of which in contributing to the effective distribution of airfreight services the Commission has already recognised.

440 The Commission disputes the applicants’ line of argument.

441 This part of the plea is based on the premiss that the element of the single and continuous infringement relating to the refusal to pay commission was limited to the discussion and definition of a common position on the interpretation of the IATA rules. However, as is apparent from the examination of the first part of the present plea, that premiss is incorrect.

442 The present part of the plea must therefore be rejected, as must this plea in its entirety.

5. The third plea, alleging errors of law and fact and errors of assessment in connection with the examination of contacts within the WOW alliance

443 The applicants divide the present plea into three parts, the first alleging that the Commission used an incorrect criterion for evaluating the contacts within the WOW alliance (‘the WOW contacts’) with reference to Article 101 TFEU, the second, errors of fact and assessment in connection with the nature and implementation of the WOW alliance and the third that the Commission erred in finding that the WOW contacts could constitute evidence of their participation in the single and continuous infringement.

(a) The first part, alleging the use of an incorrect criterion for evaluating the WOW contacts with reference to Article 101 TFEU

444 The applicants maintain that the Commission made an error in relying on the degree to which WOW contacts were part of the ‘context of the cooperation that was effectively implemented within the framework of the alliance’ as a relevant criterion for evaluating those contacts with reference to Article 101 TFEU. By so doing, the Commission is requiring an ex post assessment of the implementation of the WOW alliance agreement, which constitutes a breach of the principle of legal certainty and runs counter to the institution’s decision-making practice with regard to full cooperation airline alliances, which has rested solely on a structural analysis of the anticipated effects of the alliance’s agreement on competition. The exchanges between the alliance partners regarding prices should be regarded as lawful because the alliance itself satisfies the conditions for the application of Article 101(3) TFEU and the exchanges were indispensable to the pursuit of the objectives of the agreement defined ex ante. That is clearly the case with the WOW contacts cited in the contested decision.

445 The Commission disputes the applicants’ line of argument.

446 In the present case, the Commission described its approach in recitals 922 to 925 of the contested decision in order to assess the relevance of the WOW contacts for the purposes of establishing the participation of the members of the alliance, including the applicants, in the single and continuous infringement.

447 In that regard, the Commission stated, in essence, in the contested decision that the determination of the relevance of those contacts for the purposes of establishing, in particular, the applicants’ participation in the single and continuous infringement was independent of the question of the compatibility of the Wow alliance with Article 101 TFEU (see recital 922). It is apparent from recital 923 of the contested decision that, according to the Commission, it is only the extent to which the WOW contacts ‘go beyond what was provided for in the alliance agreement and do not fit in the context of the cooperation that was effectively implemented within the framework of the alliance’ that is relevant.

448 The Commission explains that approach in recital 924 of the contested decision, which reads as follows:

‘It cannot be permitted that an alliance framework is also used as a cover for a broader anticompetitive cooperation than that which has been put in place through the implementation of the terms of the alliance agreement. In particular, where price coordination among the parties is provided for in the context of certain forms of coordination under the alliance, the price coordination cannot go beyond the scope of the (procompetitive) cooperation and may only take place within the context of the implementation of the relevant cooperation as foreseen in the alliance agreement. So an alliance agreement may make legitimate the cooperation among its members only to the extent that the forms of cooperation for which the coordination of prices is envisaged in the agreement are implemented, and not otherwise.’

449 It must be held that the Commission did not err in using such an approach.

450 For the exception in Article 101(3) TFEU to apply to the WOW contacts – as the applicants submit it should – the four conditions laid down in that provision must all be satisfied. First, the agreement must contribute to improving the production or distribution of goods or promoting technical or economic progress, secondly, consumers must be allowed a fair share of the resulting benefit, thirdly, the agreement must not impose on the undertakings concerned restrictions which are not indispensable to the attainment of those objectives and, fourthly, it must not afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products or services in question (see, to that effect, judgment of 7 February 2013, Slovenská sporiteľňa, C 68/12, EU:C:2013:71, paragraph 31).

451 In general, it is a question of determining the procompetitive effects produced by the agreement that infringes Article 101(1) TFEU and of seeing whether those procompetitive effects outweigh the anticompetitive effects (see, to that effect, judgment of 23 October 2003, Van den Bergh Foods v Commission, T 65/98, EU:T:2003:281, paragraph 107).

452 It follows from the foregoing that, for the purposes of applying Article 101(3) TFEU, the anticompetitive effects arising from the agreement or practice at issue are examined in the light of its procompetitive effects. That examination is inseparable from the examination of the allegedly legitimate objectives actually pursued by that agreement or practice by means, inter alia, of certain restrictions. Thus, it is only if the restrictions at issue contribute to the attainment of such legitimate objectives that they are capable of being covered by the exception referred to in Article 101(3) TFEU.

453 By the approach described in paragraphs 446 to 448 above, the Commission, in essence, satisfied itself that there was such a link between the restriction found in the present case, namely the tariff coordination between the WOW alliance partners, and the legitimate objectives allegedly pursued by that alliance.

454 That finding is not called into question by the applicants’ reliance on the inconsistency between that approach and the Commission’s previous practice in taking decisions concerning airline alliances. As the Commission rightly observes, the practice followed in taking decisions relied on by the applicants concerns forward-looking assessments of pricing coordination indispensable to the attainment of the objectives pursued by the Alliance agreements in question. However, that practice does not set out any position to the effect that tariff coordination unrelated to the implementation of the Alliance agreement would be lawful.

455 Similarly, the applicants are not entitled to rely on a breach of the principle of legal certainty on the ground that they ‘could not know whether their conduct was compatible with Article 101 TFEU until after that conduct took place’. As was recalled in paragraph 417 above, horizontal price-fixing agreements represent particularly serious infringements of the competition rules, the prohibition of which the applicants cannot be unaware. Furthermore, as the Commission correctly observes, undertakings which are parties to a horizontal cooperation agreement, such as an alliance, are perfectly capable of assessing ex ante whether the cooperation which they implement justifies their coordinating on price. That is apparent, moreover, from the WOW alliance’s legal advice, mentioned in recital 957 of the contested decision, which states that, in the absence of implemented cooperation, the alliance partners may not discuss or exchange pricing information and that that alliance’s Integration Agreement is insufficient to justify such an information exchange.

456 This part must therefore be rejected.

(b) The second part, alleging errors of fact and errors of assessment in connection with the nature of the WOW alliance and its implementation

457 The applicants maintain that the Commission made errors of fact and errors of assessment in connection with the nature of the WOW alliance and its implementation. They observe that the integration that took place in the context of the alliance was in fact much more significant than the contested decision suggests. That much is clear from the initiatives which the WOW partners took between 2000 and 2006 and from the growth in sales during the same period. The loss of momentum which began in 2006 is merely a reflection of the effects of the dawn raids carried out by the Commission in February 2006 and the hand that Lufthansa had in them.

458 The Commission disputes the applicants’ line of argument.

459 In the present case, in recitals 947 to 952 of the contested decision, the Commission concluded that none of the initiatives allegedly taken in the context of the WOW alliance justified general coordination on surcharges, on the ground that cooperation in that alliance had remained limited, had never reached the stage of an integrated sales and pricing policy and had been confined, in essence, to targeted projects relating to certain routes, customers or products. In reaching that conclusion, the Commission relied on an analysis of the documents and statements provided during the administrative procedure by the incriminated carriers who were members of the alliance in question. It also referred, in recitals 951 and 952 of the contested decision, to a number of documents in the file which show that the members of the WOW alliance had individual surcharge policies from which those members were not prepared to deviate for the purposes of that alliance.

460 The elements put forward by the applicants in the context of this part of the plea are not such as to call into question the merits of the conclusions reached by the Commission.

461 First of all, it should be noted that the applicants do not rely on the existence of a general integrated pricing policy actually implemented within the WOW alliance. At most, they state that ‘as part of the local and customer-oriented implementation efforts, the WOW partners recognised that common pricing would be necessary to achieve their desired level of integration’. It is not claimed that such a ‘desired level of integration’ was achieved. The findings made by the Commission in recitals 951 and 952 of the contested decision concerning the maintenance by the partners of that alliance of individual surcharge policies are, moreover, not contested.

462 Next, the applicants have failed to demonstrate that the examples of commercial integration which they cite in their pleadings imply general coordination on tariffs or surcharges. In that regard, the ‘significant marketing initiatives’ identified by the applicants included the creation of joint structures, such as ‘Regional Steering Committees’, ‘meetings and workshops that brought together local personnel’, encouraging personnel to ‘identify new areas for cooperation’ and ‘to focus on attacking non-WOW [alliance] competitors’. However, that information, which describes organisational aspects internal to the WOW alliance, does not demonstrate that the services of that alliance were marketed jointly or a fortiori a single pricing policy.

463 As regards commercial integration as such, the applicants refer to the launch of the WOW brand in April 2002 and marketing activities to promote the WOW alliance as a ‘one-stop shop’. That communication accompanied joint sales actions ‘through projects such as WOW Destination of the Month, WOW Direct, as well as joint bids and approaches to key global customers’.

464 That presentation of the commercial integration within the WOW alliance does not differ from the Commission’s presentation in the contested decision, in particular in Sections 5.3.4.7 (integrated branding and marketing), 5.3.4.9 (sales integration) and 5.3.4.10 (price coordination), from which it correctly concluded that, although such integration could indeed be observed, it was limited to certain customers, routes or products (see paragraph 459 above). Moreover, the evidence in the file does not show that, as regards the ‘WOW Destination of the Month’ or the ‘WOW Direct’ service, the WOW alliance partners jointly set the tariff offered to their customers.

465 Nor are the other examples of integration mentioned by the applicants, namely product harmonisation, the implementation of a ‘Virtual Express Network’, the conclusion of agreements between the WOW alliance partners, on preferential terms, to increase their network coverage or the existence of joint sales agents capable of establishing the existence of a general integrated pricing and sales policy justifying general coordination on surcharges.

466 First, as regards the harmonised products offered for sale by the WOW alliance, it is apparent from the document entitled ‘Alliance Compendium: a user guide for WOW Sales’, submitted in Annex A.26 to the application that the harmonisation at issue concerned the conditions regarding the delivery of the service, and in particular the guarantees provided, but did not cover the pricing of those products. The document thus focuses only on the harmonisation of service standards, Alliance partners continuing moreover to offer those products under their own names. In the specific version of that document drawn up for the applicants’ staff, which also appears in Annex A.26, it is stated that, notwithstanding the harmonisation of service standards, the SAC harmonised products would retain their own identity and attributes as well as other conditions of sale.

467 Secondly, as regards the implementation of a ‘Virtual Express Network’ consisting in reserving 10% of the capacity of partners on all flights for express WOW alliance shipments, and the conclusion of agreements between WOW alliance partners, it must be stated that they are based on capacity sharing between partners, on a bi- or multilateral basis, a practice which is common to the whole industry to varying degrees (see, inter alia, recitals 16, 68, 72 and 890 of the contested decision).

468 Such capacity sharing does not, as such, entail any integration of the sales and pricing policy of the parties thereto. On the other hand, those initiatives, which the applicants describe as ‘the most significant … from a commercial perspective’, are consistent with the description of the WOW alliance given by the parties to the concentration in the context of the Commission’s decision of 4 July 2005 in Case COMP/M.3770 – Lufthansa/Swiss (OJ 2005 C 204, p. 4) reproduced in recital 949 of the contested decision, according to which that alliance ‘is only a loose alliance which facilitates interlining among its members, so they can expand their respective networks[; t]he parties do not sell their products jointly nor do they coordinate on prices, schedules or capacity’.

469 Thirdly, although the existence of joint sales agents for the WOW alliance partners is evidence of the integration of certain commercial functions of those partners, it does not as such indicate the existence of an integrated pricing and sales policy within that alliance.

470 Lastly, in so far as the applicants refer to more extensive attempts to integrate in the context of the WOW Inc. and WOW USA projects, it is sufficient to note, as they themselves agree, that those attempts were not successful.

471 In the light of the foregoing, this part must be rejected.

(c) Third part, alleging that the Commission erred in finding that the WOW contacts could constitute evidence of the applicants’ participation in the single and continuous infringement

472 The applicants submit that the WOW contacts were related to the WOW alliance and cannot constitute evidence of their participation in the single and continuous infringement, either because the contacts were not in breach of Article 101 TFEU or because they could not, in any event, be regarded as forming part of any broader anticompetitive plan.

473 In this connection, the applicants discuss the recitals of the contested decision which describe the WOW contacts concerning surcharges, limiting their observations to those which took place from 1 May 2004 onwards, on the basis that, in essence, earlier contacts escape the application of Article 101, inasmuch as they relate to third country routes, or benefited from a ‘specific exemption’ inasmuch as they relate to routes between airports located within the European Union (‘the intra-EU routes’). They submit that some of the contacts at issue must be understood as examples of coordination necessary for the implementation of special prorate agreements or block space agreements concluded between the alliance partners. Moreover, they claim that the other contacts at issue were the manifestation of efforts by the WOW alliance partners to reduce price competition within the alliance in order to facilitate the cooperation of their sales personnel at local level.

474 The Commission disputes the applicants’ line of argument.

475 At the outset, it is necessary to reject the applicants’ argument that the WOW contacts that took place prior to 1 May 2004 should be disregarded, by reference, in so far as the applicants rely on the Commission’s lack of jurisdiction in that regard on the ground that third country routes were concerned, to the principles referred to in paragraph 393 above. In that regard, the applicants have failed to claim that those contacts did not support the interpretation of the other evidence relied on in order to establish the single and continuous infringement – evidence which is not alleged to fall outside the Commission’s jurisdiction.

476 Moreover, it should be noted that the contacts presented by the Commission, in recitals 804 and 805 of the contested decision, as showing the unlawful coordination at work among the WOW alliance partners and which were prior to 1 May 2004 occurred specifically in the framework of the cartel referred to in particular in paragraphs 394 and 395 above. First, the contacts referred to in recitals 209, 212, 223, 343, 584, 592 and 596 concern the implementation of the surcharges and the refusal to pay commission, most of them without delimiting their geographical scope. Secondly, several of those contacts either involved employees of the headquarters of the incriminated carriers or referred to communications with them (see recitals 212, 223 and 584). Thirdly, those contacts are contemporaneous with other discussions among the headquarters or with decisions taken at headquarters level concerning surcharges. Fourthly, all those contacts involve a number of or all of the WOW alliance partners.

477 In so far as the applicants raise the question of their right to operate intra-EU routes, it is necessary to refer to the third part of the fourth plea below, in which the applicants take issue with the Commission for having found that they participated in the single and continuous infringement on those routes without having established that they were potential competitors on those routes.

478 That having been stated, it is necessary to examine the arguments specifically put forward by the applicants in relation to the WOW contacts that took place from 1 May 2004 onwards (recitals 355, 381, 401, 402, 434, 456, 484, 488, 494, 512, 517, 546, 600, 628 to 632 and 674 of the contested decision).

479 As a preliminary point, it should be noted that the applicants are not justified in claiming that those contacts were intended to reduce price competition within the WOW alliance in order to facilitate the cooperation of the sales personnel of the alliance partners at local level.

480 First of all, it should be recalled that, following the examination of the second part of this plea, the Court found that the Commission had correctly concluded that the scope of the WOW alliance, as actually implemented, did not include a general integrated pricing and sales policy requiring general coordination on surcharges on the part of its members.

481 Next, on the assumption that the applicants’ argument must be understood as seeking to deny that the conduct at issue falls within the scope of the prohibition laid down in Article 101(1) TFEU, on the ground that it was intended to create an atmosphere of trust among WOW alliance partners, it should be recalled that horizontal price-fixing agreements represent particularly serious infringements of the competition rules. In accordance with the case-law referred to in paragraph 417 above, the analysis of the economic and legal context of which that conduct is part may, therefore, be limited to what is strictly necessary in order to establish the existence of a restriction of competition ‘by object’. It follows that the Commission was not required to examine in detail whether the context of that alliance could remove from the conduct at issue the degree of harm required for it to be classified as a restriction ‘by object’, particularly since it had also established that the general coordination on surcharges did not fall within the scope of the WOW alliance as actually implemented (see paragraph 480 above). In any event, the reliance on the need to establish such an atmosphere of trust, far from being capable of justifying collusive conduct, confirms that the objective of the WOW alliance partners was knowingly to substitute practical cooperation between them for the risks of competition, which clearly falls within the classification of a restriction ‘by object’.

482 Lastly, in so far as the applicants claim that the WOW contacts alleged against them were intended exclusively to create an atmosphere of trust between the WOW alliance partners, and that no evidence of participation in the single and continuous infringement of broader scope can be inferred from them, it must be stated that they rely on only one item of evidence in support of their line of argument. It is a communication sent by one of their employees to their local sales managers, listing ‘the file revenue [and] loads on [the applicant’s] services gained from [WOW alliance] partners’ [air waybills]’. According to the author of the communication, that information was to help local managers ‘target lanes to further our cooperation with our partners’ and ‘allay [their] suspicions partners are wrestling these shipments away from us with such interline arrangements’. It is apparent at most from that communication that the applicants’ personnel were concerned that the volume of business on freight services should not be adversely affected by the implementation of the WOW alliance; it does not establish any link between the coordination on surcharges and an alleged objective of maintaining an atmosphere of trust within the alliance. A fortiori, that communication does not support the applicants’ claim that the WOW contacts were not broader in scope than the objective in question.

483 As regards the various arguments directed specifically against the 19 recitals referred to in paragraph 478 above, the applicants dispute, in the first place, the probative value of six WOW contacts which took place ‘in Scandinavia’ (recitals 401, 434, 484, 494, 512 and 546 of the contested decision). In so far as they claim that those contacts were ‘understandable’ in the light of the objective of maintaining an atmosphere of trust among WOW alliance partners, that argument must be rejected for reasons similar to those set out in paragraphs 479 to 482 above. Next, in so far as they rely on the existence of certain capacity-sharing agreements or similar agreements between partners of that alliance which allegedly explain the existence of the contacts at issue, it must be observed that they do not adduce the slightest prima facie evidence in support of their claims. Conversely, the Commission observes, without being challenged in that regard, that those contacts do not refer to the agreements at issue. Lastly, the fact that only WOW alliance partners were parties to those exchanges is likewise not capable of precluding the possibility that those exchanges establish that the applicants participated in the single and continuous infringement. It is apparent from recital 111 of the contested decision that the participants in that infringement were in contact in various ways, both bilaterally and multilaterally, including, inter alia, alliance meetings such as the WOW alliance. There are, in that regard, numerous examples of contacts in which both partners of that alliance and other incriminated carriers participated (see, inter alia, recitals 135, 170, 173 and 174 of the contested decision) which show that the WOW contacts were ultimately one form of coordination among others in a wider cartel.

484 In the second place, the applicants’ attempt to call into question the probative value of the contacts relating to the SSC referred to in recitals 628 to 632 must be rejected. First of all, it is apparent in particular from recital 630 of the contested decision that, contrary to the applicants’ submission, the scope of the contacts at issue was not limited to routes originating in Denmark, but concerned more broadly the imposition of the SSC in Europe at a harmonised rate. That is supported by the general content of the internal email described in that recital: ‘at our WOW meeting for Europe we agreed that we would impose surcharges. Must realise that it is not as easy as we thought, or hoped’; ‘if everybody goes in [a] different direction it will take only a couple of days before we get the worst deal’; ‘we have to decide in WOW if we wish to continue as previously or prefer a split up like KL[M]/AF’. Although exchanges specific to the Danish situation emerge, in particular, from recital 629 of the contested decision, that can be explained by the applicants’ SSC levels in Denmark. As is apparent from Annex A.28 to the application, those levels were lower than levels elsewhere in Europe, and did not therefore warrant specific interventions by the WOW alliance partners.

485 Next, in so far as the applicants claim that the contacts referred to in recitals 628 to 632 sought to remedy ‘an obstacle to WOW alliance marketing cooperation in Denmark’, it should be noted (i) that it is apparent from paragraph 484 above that the contacts went beyond the single issue of the SSC level on routes originating in Denmark and (ii) that it was concluded, following the examination of the second part of the present plea, that, in the light of the scope of that alliance, general coordination on surcharges among its partners was not required.

486 Lastly, in so far as the applicants claim that the contacts at issue are not capable of demonstrating their participation in the single and continuous infringement, on the ground that they are part of a ‘WOW context’, it should be noted that the applicants’ participation in coordination relating to the SSC, in particular, through that alliance is consistent with the manner in which the cartel at issue functioned described by the Commission, in particular in recital 111 of the contested decision. The actual content of those contacts shows that the WOW alliance partners were aware of the other aspects of the cartel at issue and referred to the actions of carriers that were not members of that alliance, as is apparent from the statement that ‘we have to decide in WOW if we wish to continue as previously or prefer a split up like KL[M]/AF’ (recital 630 of the contested decision). The fact that the SSC coordination within that alliance took place in a broader context is corroborated, moreover, by the internal Lufthansa exchanges reproduced at the end of recital 618 of the contested decision, from which it is apparent that that alliance was a form of coordination, among others, in the context of a wider cartel. Although, as the applicants claimed at the hearing and without there being any need to rule on the admissibility of the copy of those internal exchanges which they communicated at the hearing, (see paragraph 66 above), it is not apparent from the exchanges reported in that recital that the WOW alliance meeting which was supposed to be held ‘the following week’ actually concerned the issue of the SSC, the fact remains that those exchanges show that the alliance was perceived as a forum among others for consolidating coordination in relation to that surcharge.

487 In the third place, the applicants dispute the probative value of the contacts outside the European Union referred to in recitals 402, 488 and 674 of the contested decision.

488 As regards recital 402 of the contested decision, the applicants state that it does not describe or mention any contact between Lufthansa and its WOW alliance partners. Although that statement is correct, the fact remains that the author of the internal email referred to in that recital considers that ‘the decision of [Lufthansa to suspend the FSC increase] is not good since in practice it means that carriers like [the applicants], SAS, [Japan Airlines], etc. will not increase as well’. It follows that, without on its own showing contact between the WOW alliance partners, that document, considered in a wider body of evidence, was such as to substantiate the finding of coordination among them in relation to the FSC.

489 Regarding recital 488 of the contested decision, it refers to an internal SAS email in which it is stated as follows: ‘SAS cannot be the first or only carrier introducing the [FSC] increase [in Japan]. [I will talk] with [Japan Airlines], [Lufthansa] and [the applicants] next week about this’. Contrary to the applicants’ submission, the possibility that those contacts did not take place is not such as to call into question the probative value of that document. The fact that SAS intended to deal with the subject of the FSC with the applicants in itself constitutes an indication of their participation in the component of the single and continuous infringement relating to the FSC (see, to that effect, judgment of 29 June 2012, GDF Suez v Commission, T 370/09, EU:T:2012:333, paragraph 226).

490 As regards recital 674 of the contested decision, the applicants claim that the communications between them and Lufthansa which it reports concerning the FSC and the SSC applicable on routes from Los Angeles (United States) were ‘directly relevant’ in the light of the special prorate agreements and block space agreements in effect between the two carriers at that time. However, it is apparent from the applicants’ email referred to in recital 674, produced in Annex D.4 to the rejoinder, that they questioned Lufthansa on its possible practice of capping surcharges, stating that they wished to obtain its ‘urgent [opinion] as this has a very significant major impact on the market due to the market leader position of [Lufthansa]’. As the Commission correctly observes, the content of that communication shows that the applicants were seeking not so much to obtain clarification from Lufthansa about certain conditions of the agreements in effect between them and Lufthansa as to ascertain its point of view on an aspect of the level of its surcharges given that, in the light of its position as ‘market leader’, that would affect the level at which surcharges were set by the other carriers.

491 In the fourth place, the applicants claim that recital 517 of the contested decision describes an email relating to a joint presentation made by the WOW alliance to a freight forwarder and, as such, is clearly part of the implementation of that alliance. The Commission disputes that reading by the applicants and takes the view that the email in question shows that the surcharges applied in the context of WOW alliance joint presentations were part of a wider cartel. It also relies on the reference in the exchange that ‘this issue [of the surcharges] has been discussed “slightly” during the last meeting [of the Global Sales Board], but [that] no comments [were] made in [the minutes of the (antitrust!) meeting]’.

492 It is apparent from that email that its purpose was, as the applicants correctly state, to prepare a meeting with the freight forwarder targeted by the joint presentation, which was to take place 10 days later. In this context, the email reports on discussions at the level of the Global Sales Board, on which the Vice-Presidents of the WOW alliance members in charge of sales sat:

‘it was mentioned [that] [the WOW alliance] will use [Lufthansa’s] model within “neutral” markets; US, Europe. Thus, some local agreements on other markets may apply, e.g. Japan (government involvements) or Asia markets where the competitors are using different models.’

493 The author of the email adds:

‘In my documentation, I have found the mandate agreement issued to Exel’s negotiations last year (copy attached) where all carriers agreed to use [Lufthansa’s] model for surcharges. Can we use the same wording in CAT/DHL case ?????????? Might [it be] possible [to put the] question to [the Global Sales Board] for a quick answer?’

494 Although the extract in the previous paragraph does indeed fall within the context of the drawing up of the joint presentation at issue, the extract in paragraph 492 above could also, in the light of its context, be part of the drawing up of that presentation, contrary to what the Commission states. In that regard, the reference to ‘local agreements’ may be interpreted as the application of specific agreements to the freight forwarder on freight originating from certain airports; that interpretation is all the more likely given that the purpose of the email was to lay down the terms of the joint bid to be made by the WOW alliance to that customer. It is true that the reference, expressed by the exclamation ‘(antitrust !)’, to the risk that the discussion at the Global Sales Board level might be prohibited under competition law indicates the opposite. However, that reference is not on its own sufficient to render implausible the reading proposed by the applicants, which is based not on unsubstantiated allegations but on the actual content of the email in question.

495 Consequently, the email of 3 October 2005 referred to in recital 517 of the contested decision must be regarded as forming part exclusively of the objective of drawing up a joint bid by the WOW alliance to a prospective customer and is therefore not such as to help establish the applicants’ participation in the single and continuous infringement.

496 In the fifth place, as regards recital 600 of the contested decision, the applicants do not dispute the description therein of the discussions which they had with Lufthansa on ‘surcharge issues’. They merely state that this is ‘not a discussion on future pricing intentions, but rather a discussion on overall policy’ which must, in essence, be understood in the light of the objective of maintaining an atmosphere of trust among the WOW alliance partners. In so far as the applicants rely on the need to establish an atmosphere of trust among the WOW alliance partners, that argument must be rejected for reasons similar to those set out in paragraphs 479 to 482 above. Moreover, it must be observed that a discussion between competitors on an aspect of their pricing policy is capable of influencing their conduct on the market and is therefore of an anticompetitive nature, irrespective of whether it relates to ‘future pricing’. The intention to influence the respective conduct of the carriers in question is, moreover, apparent from the quotation reproduced by the applicants in their written pleadings from the document on which the Commission relies in recital 600, from which it is apparent that Lufthansa had, during those discussions, asked the applicants ‘why … in certain markets, [they had not followed] the same surcharge policy as [Lufthansa]’.

497 In the sixth place, as regards recital 456 of the contested decision, it describes an exchange of emails initiated by Lufthansa. Lufthansa asks the applicants why they are charging an FSC of only EUR 0.20 in Italy and then indicates to them the higher levels applied by other Asian carriers. The applicants claim, first of all, that the exchange did not concern the communication of pricing information relating to the incriminated carriers, next, that it did not entail any changes to their FSC level and, lastly, that it contributed, in essence, to the establishment of an atmosphere of trust between WOW alliance partners.

498 None of those arguments can succeed. First of all, the claim that the FSC levels communicated by Lufthansa concerned non-incriminated carriers has no factual basis, since Japan Airlines is one of the carriers whose FSC level is mentioned. In any event, that claim is irrelevant. The contact in question illustrates at the very least the FSC coordination at work between Lufthansa and the applicants and the relevant benchmarking of the FSC levels applied, including by carriers which are not members of the WOW alliance. The Commission was therefore right to include it in the body of evidence relied on against the applicants. Next, the claim that the applicants did not alter their FSC level in Italy as a result of that contact does not deprive it of its probative value when account is taken of the wider body of evidence, as is apparent from paragraphs 626 to 633 below. Lastly, for the reasons set out in paragraphs 479 to 482 above, the argument relating to the establishment of an atmosphere of trust among the WOW alliance partners must be rejected. In that regard, the applicants’ claim that the contact at issue was part of arrangements entered into between them and Lufthansa on the use of Lufthansa’s capacity on flights originating in Italy is in no way substantiated and cannot justify that contact. It has not been shown that those arrangements required an integrated pricing policy.

499 In the seventh place, as regards recitals 355 and 381 of the contested decision, the applicants rely on the duties performed by their employee who was a party to the contacts in question, namely to supervise the capacity arrangements entered into with the WOW alliance partners, in order to infer from this that those contacts were necessarily part of the implementation of those agreements. It is sufficient to note that, by those contacts, Lufthansa either disclosed or was asked about its intention to increase the FSC level, without it being apparent from this that that information was limited in its geographic scope. It must therefore be concluded that those contacts show that commercially sensitive information was exchanged between the carriers in question; it has not been demonstrated that that exchange fell exclusively within the context of the implementation of the WOW alliance.

500 In the light of the foregoing, it must be observed that, taken together, the contacts at issue which the Commission used, in recital 804 of that decision, in order to find that the implementation of the FSC was discussed between the WOW alliance partners, including the applicants, were such as to justify such a finding. While it is true, as is apparent from paragraph 494 above, that the email of 3 October 2005 referred to in recital 517 of the contested decision must be interpreted as falling exclusively within the objective of drawing up a joint WOW alliance bid to a prospective customer, it is nevertheless apparent from the examination of the present plea that the Commission was fully entitled to rely on the 15 remaining contacts, which are sufficient to justify the finding set out in recital 804 of that decision.

501 Accordingly, the present part of the plea must be rejected, as, therefore, must the present plea in its entirety.

6. The fourth plea in law, alleging errors of law and fact and errors of assessment in connection with the finding that the applicants participated in the single and continuous infringement

502 The applicants allege that the Commission made numerous errors in its attempt to establish their participation in the single and continuous infringement. Those errors warrant the annulment of the contested decision or, in the alternative, the annulment of Article 1(1) and (4) in so far as those provisions refer to them. They identify, in that regard, several categories of conduct imputed to them and none of which is capable of establishing their participation in the single and continuous infringement.

503 It should be noted at the outset that several complaints raised by the applicants refer to other pleas and arguments in the application which have already been examined, and rejected, by the Court. That is true of the complaints alleging an error in the taking into account of the conduct related to inbound flights (see the second and third parts of the first plea), an error in the taking into account of the WOW contacts (see the third plea) and an error in the taking into account of the conduct relating to the refusal to pay commission (see the second plea and the fourth part of the first plea).

504 That being said, the remainder of the present plea consists, in essence, of four parts, alleging, first, an error of law in so far as the Commission did not seek to classify the conduct at issue as an agreement or practice within the meaning of Article 101(1) TFEU, second, an infringement of the principle ne bis in idem in so far as the Commission found that the applicants participated in the single and continuous infringement on intra-EU routes before 1 May 2004 and on EU Switzerland routes, third, an error in the Commission’s finding that the applicants participated in the single and continuous infringement on intra-EU routes before 1 May 2004 and on EU Switzerland routes without establishing that they were potential competitors on those routes and, fourth, errors of assessment regarding the incriminating nature of certain contacts used against them.

(a) The first part, alleging an error of law in so far as the Commission did not seek to classify the conduct at issue as an agreement or practice within the meaning of Article 101(1) TFEU

505 The applicants claim, in essence, that the Commission’s position that it is not necessary to show that the contacts cited involved an agreement or a concerted practice prohibited by Article 101 TFEU, provided that they were ‘integral’ to price coordination, is wrong in law.

506 The Commission disputes the applicants’ line of argument.

507 First of all, in recitals 833 to 845 of the contested decision, the Commission set out the principles applicable to the classification of conduct as an agreement or as a concerted practice within the meaning of Article 101(1) TFEU.

508 In particular, in recitals 842 and 843 of the contested decision, it provided the following clarifications:

‘(842) It is not necessary, particularly in the case of a complex infringement, for the Commission to characterise the conduct as exclusively one or other of these forms of illegal behaviour. The concepts of agreement and concerted practice are fluid and may overlap. The anticompetitive behaviour may well be varied from time to time, or its mechanisms adapted or strengthened to take account of new developments. Indeed, it may not even be possible to make such a distinction, as an infringement may present simultaneously the characteristics of each form of prohibited conduct, while when considered in isolation some of its manifestations could accurately be described as one rather than the other. It would however be artificial analytically to sub-divide what is clearly a continuing common enterprise having one and the same overall objective into several different forms of infringement. A cartel may therefore be an agreement and a concerted practice at the same time. Article 101 of the TFEU lays down no specific category for a complex infringement of the present type (judgment of 17 December 1991, Hercules Chemicals v Commission, T 7/89, EU:T:1991:75, paragraph 264).

(843) In its PVC II judgment [judgment of 20 April 1999, Limburgse Vinyl Maatschappij and Others v Commission, T 305/94 to T 307/94, T 313/94 to T 316/94, T 318/94, T 325/94, T 328/94, T 329/94 and T 335/94, EU:T:1999:80, paragraph 696], the General Court stated that “[in] the context of a complex infringement which involves many producers seeking over a number of years to regulate the market between them, the Commission cannot be expected to classify the infringement precisely, for each undertaking and for any given moment, as in any event both those forms of infringement are covered by Article [101 of the TFEU]”.’

509 Next, in recitals 846 to 859 of the contested decision, the Commission set out the ‘general system’ at work in the present case, concluding, for each of the components of the single and continuous infringement, that it could be classified as an agreement or concerted practice.

510 It concluded, on the basis of the evidence described in Sections 4.1 to 4.5 of the contested decision, that that ‘overall scheme’ could ‘[be qualified] as an agreement and/or concerted practice between undertakings within the meaning of Article 101 of the TFEU’ (recital 860). It stated, in the same recital, that ‘the air cargo service providers concerned coordinated their behaviour to remove uncertainty between them in relation to various elements of price in the airfreight sector [; t]he repeated contacts, often of a bilateral nature but also including multilateral meetings, over a significant period of time and covering the aspects described in Sections 4.1 to 4.5 bear the hallmark elements of a complex infringement’.

511 Lastly, in recital 861 of the contested decision, the Commission stated the following:

‘Based on the elements set out in recitals (846) to (859), the different elements of behaviour of the addressees in this Decision can be considered to form part of an overall scheme to coordinate the pricing behaviour for airfreight services. The Commission considers that the behaviour of the undertakings concerned constitutes a complex infringement consisting of various actions which can be either classified as an agreement or concerted practice, within which the competitors knowingly substituted practical cooperation between them for the risks of competition. Moreover, in the absence of proof to the contrary, the Commission considers, on the basis of the judgment of the Court of Justice in Hüls (judgment of 8 July 1999, Hüls v Commission, C 199/92 P, EU:C:1999:358, paragraphs 161 and 162), that the undertakings taking part in such concerted action took account of the information exchanged with their competitors for the purposes of determining their own conduct on the market, particularly as the concerted action occurred regularly. The Commission therefore considers that the complex of arrangements in this case as described in Section 4 of this Decision presents all the characteristics of an agreement and/or a concerted practice within the meaning of Article 101 of the TFEU.’

512 Contrary to the applicants’ submission, it must be held that the Commission did not err in law by proceeding in the manner described in paragraphs 507 to 511 above.

513 It thus classified, in accordance with the principles which it recalled and which are applicable in the present case, a complex whole comprising factual elements which, in some cases, lent themselves to classification as agreements and in others as concerted practices, or even both of them together, and it cannot be criticised for not having used exclusively one or the other of those classifications.

514 Next, in so far as the applicants allege that the Commission did not even seek to establish their participation in the agreements or concerted practices deemed to constitute the single and continuous infringement, it must be held that that allegation has no factual basis.

515 As is apparent from paragraph 509 above, the Commission classified individually each of the components of the single and continuous infringement as an agreement or a concerted practice, on the basis of the factual elements set out in Sections 4.1 to 4.5 of the contested decision and after having, specifically in the case of the applicants, (i) identified in recitals 803 to 806 of that decision the contacts used against them in respect of those three components and (ii) responded in recitals 807 to 813 and in recitals 853 to 855 to the applicants’ arguments calling into question the anticompetitive nature of those contacts.

516 Lastly, in so far as the applicants’ line of argument must be understood as being directed against the Commission’s interpretation, in recital 853 of the contested decision, of the rules on the taking of evidence of participation in an infringement of Article 101 TFEU, it must be held that the Commission did not err in stating that ‘the [factual contacts] must be assessed as a body of evidence’.

517 In that regard, it should be recalled that, in order to establish that there has been an infringement of Article 101(1) TFEU, although the Commission must produce firm, precise and consistent evidence, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by that institution, viewed as a whole, meets that requirement (judgment of 1 July 2010, Knauf Gips v Commission, C 407/08 P, EU:C:2010:389, paragraph 47).

518 In the light of the foregoing, this part of the plea must be rejected.

(b) Second part, alleging infringement of the principle ne bis in idem in so far as the Commission found that the applicants participated in the single and continuous infringement on intra-EU routes before 1 May 2004 and on EU Switzerland routes

519 The applicants claim that the conduct prior to 1 May 2004 cannot be relied on against them to establish their involvement in an infringement relating to intra-EU routes, as well as conduct related to EU Switzerland routes, without breaching the principle ne bis in idem, since they were not found in the 2010 Decision to have participated in any such infringement.

520 According to the applicants, the principles stemming from the judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C 238/99 P, C 244/99 P, C 245/99 P, C 247/99 P, C 250/99 P to C 252/99 P and C 254/99 P, EU:C:2002:582), referred to in recitals 1056 and 1057 of the contested decision, should not result in the principle ne bis in idem being inapplicable, in so far as (i) the judgment of 16 December 2015, Singapore Airlines and Singapore Airlines Cargo Pte v Commission (T 43/11, not published, EU:T:2015:989), did not annul the decision of 9 November 2010 on the basis of a purely formal defect, but of a serious infringement of the rights of the defence, and (ii) the contested decision is substantively broader in scope than that decision.

521 The Commission disputes the applicants’ line of argument.

522 It is settled case-law that the principle ne bis in idem, moreover laid down in Article 50 of the Charter, must be observed in proceedings for the implementation of competition law under which fines are imposed. That principle precludes an undertaking being found liable or proceedings being brought against it afresh on the grounds of anticompetitive conduct for which it has been penalised or declared not liable by an earlier decision that can no longer be challenged (see judgment of 14 February 2012, Toshiba Corporation and Others, C 17/10, EU:C:2012:72, paragraph 94 and the case-law cited).

523 In the present case, the applicants rely on the Decision of 9 November 2010 which, in their view, constitutes an earlier and final decision declaring them not liable for the single and continuous infringement in respect of intra-EU and EU Switzerland routes.

524 It is necessary, first of all, to determine whether the applicants’ claim that that decision constitutes a declaration of non-liability is well founded.

525 In that regard, it should be noted that such a declaration presupposes that the liability of the undertaking concerned has been assessed following an examination of the circumstances of the case, in other words that there has been an assessment of the substance of the case. Such an assessment presupposes, in turn, that the Commission has carried out a study or evaluation of the evidence placed on the file and carried out an assessment of the participation of the undertaking concerned in one or all of the forms of conduct which were the subject of the statement of objections, in order to determine whether its liability has been established.

526 In the present case, in paragraph 1582 of the Statement of Objections, the Commission stated that it ‘[was envisaging] issuing a decision … finding that the undertakings which are the addressees of the present Statement of Objections have infringed Article [101 TFEU] and Article 53 of the EEA Agreement and Article 8 of Article 8 of the [EC Switzerland Air Transport Agreement]’. As is apparent from paragraph 8 above, the applicants were among those addressees.

527 It is apparent from paragraphs 3, 129, 1389, 1395 and 1434, and from paragraph 1575(c) and paragraph 1577 of the Statement of Objections that the infringement which the Commission envisaged finding in paragraph 1582 of that statement covered, inter alia, intra-EU routes for the whole infringement period and EU Switzerland routes from 1 June 2002.

528 It follows that, in the Statement of Objections, the Commission envisaged finding the applicants liable for an infringement of the relevant competition rules on intra-EU and EU Switzerland routes.

529 By contrast, in the Decision of 9 November 2010, the Commission did not expressly take a view on the applicants’ liability on intra-EU and EU Switzerland routes. In the operative part of that decision, it held them liable for the single and continuous infringement in so far as it concerned EU third country routes (Article 2 of the Decision of 9 November 2010) and non-EU EEA third country routes (Article 3 of that decision), but not in so far as it concerned intra-EEA routes, which include intra-EU routes (Article 1 of that decision) or EU Switzerland routes (Article 4 of that decision). Nor did it penalise them for infringement of the relevant competition rules on those last two categories of routes. Nonetheless, the Commission did not expressly rule out the possibility that they might be liable for such infringements on those categories of routes.

530 The question is therefore whether it can be inferred from that silence that, in the Decision of 9 November 2010, the Commission implicitly declared the applicants not liable for the single and continuous infringement in so far as it concerned intra-EU and EU Switzerland routes, so that it could no longer impose a penalty on them in that regard in the contested decision without infringing the principle ne bis in idem.

531 In that regard, it should be recalled that the supervisory task conferred by Article 105(1) TFEU, Article 55(1) of the EEA Agreement and the EC Switzerland Air Transport Agreement on the Commission in competition matters does not mean that it is under an obligation to rule on the existence or otherwise of an infringement of the relevant competition rules (see, to that effect, judgments of 18 September 1992, Automec v Commission, T 24/90, EU:T:1992:97, paragraphs 74 to 76, and of 16 October 2013, Vivendi v Commission, T 432/10, not published, EU:T:2013:538, paragraph 68). Moreover, it cannot be inferred from 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 that the Commission is required to find and sanction all anticompetitive conduct (see, to that effect, judgment of 9 September 2015, Philips v Commission, T 92/13, not published, EU:T:2015:605, paragraph 112).

532 Nor can it follow from the provisions of Regulation No 1/2003 or from the implementing provisions of Article 53 of the EEA Agreement or Article 8 of the EC Switzerland Air Transport Agreement that the Commission is under any such obligation when it states, in the statement of objections, that it envisages finding an infringement of the relevant competition rules. The Commission cannot therefore be obliged, in the final decision, to rule on whether or not there has been an infringement of the relevant competition rules which it envisaged finding in the statement of objections.

533 It cannot therefore be concluded that, by refraining from finding an infringement of the relevant competition rules in the final decision as regards certain conduct referred to in the Statement of Objections, the Commission, implicitly but necessarily, made a declaration of non-liability in that regard.

534 The general scheme of Regulation No 1/2003 supports that interpretation. It should be noted that it is from Article 10 of Regulation No 1/2003, which empowers it to find that Article 101 TFEU does not apply to specific conduct, in particular because the conditions of Article 101(1) TFEU are not met, that the Commission derives its power to find that there has been no infringement of Article 101 TFEU and thus to adopt a ‘negative’ decision on the substance which may prevent a subsequent finding of an infringement of that article (see, to that effect, judgment of 3 May 2011, Tele2 Polska, C 375/09, EU:C:2011:270, paragraphs 23, 24, 28 and 29). The same applies where the Commission makes use of the powers conferred on it by Regulation No 1/2003 to apply Article 53 of the EEA Agreement and Article 8 of the EC Switzerland Air Transport Agreement.

535 Article 10 of Regulation No 1/2003 is the only legal basis on which the Commission may rely in order to adopt a decision finding that the Treaty rules on competition are not applicable to specific individual conduct.

536 That is apparent, first, from the wording of the title of Article 10 of that regulation and from its provisions. That article concerns the ‘finding of inapplicability’, and provides that ‘where the [Union] public interest relating to the application of Articles [101 and 102 TFEU] so requires, the Commission, acting on its own initiative, may by decision find that Article [101 TFEU] is not applicable to an agreement, a decision by an association of undertakings or a concerted practice, either because the conditions of Article [101(1) TFEU] are not fulfilled, or because the conditions of Article [101(3) TFEU] are satisfied’.

537 Secondly, it should be noted that no other provision of Regulation No 1/2003 confers on the Commission the power to find that the Treaty rules on competition are not applicable to specific individual conduct. Recital 14 of that regulation makes explicit the legislature’s intention to limit strictly the Commission’s power in that regard to the situations covered by Article 10 of that regulation, stating that such a finding may be made only in ‘in exceptional cases where the public interest of the [Union] so requires’.

538 Thirdly, the Court of Justice has held that the opening of a proceeding by the Commission with a view to penalising anticompetitive conduct does not permanently and definitively remove the power of Member States’ competition authorities to apply Article 101 TFEU to the conduct concerned, the power of those authorities being restored once the proceeding initiated by the Commission is concluded, including by means of a decision taken on the basis of Article 7 of Regulation No 1/2003 (see, to that effect, judgment of 14 February 2012, Toshiba Corporation and Others, C 17/10, EU:C:2012:72, paragraphs 79, 80, 86 and 87). It is in that context that it is necessary to assess the significance to be ascribed to the Commission’s silence as regards certain types of conduct, in the context of a decision taken on the basis of Article 7 of Regulation No 1/2003. To interpret that silence as an implicit finding that there has been no infringement of the competition rules would mean that the competition authorities of the Member States could never recover their power to apply Article 101 TFEU in relation to conduct in respect of which the Commission initiated a proceeding and then closed that proceeding by adopting a decision taken on the basis of Article 7 of Regulation No 1/2003, on the ground that the principle ne bis in idem would be infringed. Such an interpretation would run counter to the case-law referred to in this paragraph.

539 Fourthly, it must be pointed out that the Court has examined the effect of decisions taken by the competition authorities of the Member States on the basis of the second paragraph of Article 5 of Regulation No 1/2003, by which they consider, on the basis of the information in their possession, that the conditions for prohibition are not met. It is thus apparent from paragraphs 22 to 28 of the judgment of 3 May 2011, Tele2 Polska (C 375/09, EU:C:2011:270), that such decisions do not entail a declaration of non-liability which may prevent a subsequent finding of an infringement. In other words, the anticompetitive acts of an undertaking which are targeted by a decision of that type may subsequently be the subject of proceedings and, as the case may be, a finding of liability, without there being any need to consider that those proceedings infringe the principle ne bis in idem (see, to that effect, judgments of 3 May 2011, Tele2 Polska, C 375/09, EU:C:2011:270, paragraphs 22 to 28; of 25 November 2014, Orange v Commission, T 402/13, EU:T:2014:991, paragraphs 28 to 31; see also, to that effect, Opinion of Advocate General Mazák in Tele2 Polska, C 375/09, EU:C:2010:743, point 30).

540 In that regard, it should be noted that a decision that there are no grounds for action taken on the basis of the second paragraph of Article 5 of Regulation No 1/2003 may be adopted after the examination on the substance of conduct and the sending of an indictment, on the basis of the statement of objections issued by the Commission pursuant to Article 10 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18).

541 Thus, neither the state of progress of the proceedings nor the scope of the analysis of the merits of the allegations made in that context by the competent competition authority is such as to alter the significance of its silence in the final decision as to all or part of the liability of the undertaking concerned.

542 Although those considerations fall within the context of the interpretation of the provisions of the second paragraph of Article 5 of Regulation No 1/2003, they provide useful information on the scope of decisions taken by the Commission on the basis of Article 7 of Regulation No 1/2003, from the point of view of the application of the principle ne bis in idem. The specific context of those two articles may be compared, in so far as they must both be assessed, in particular, in the light of the powers specifically conferred on the Commission under Article 10 of that regulation. Furthermore, since a provision of secondary EU law must be interpreted, as far as possible, in a manner consistent with the provisions of the Treaties and the general principles of EU law, the scope given by the Court, in its judgment of 3 May 2011, Tele2 Polska (C 375/09, EU:C:2011:270), to the power to decide that there are no grounds for action is to be understood as meaning that that power, construed in this way, is consistent with the principle ne bis in idem.

543 Therefore, even on the assumption that a decision taken by the Commission on the basis of Article 7 of Regulation No 1/2003 constitutes, as regards conduct for which the conditions for prohibition have not been declared met, a decision that there are no grounds for action, it cannot lead to a declaration of non-liability.

544 In the present case, it should be noted that the Decision of 9 November 2010 is a decision finding an infringement taken on the basis of Article 7 of Regulation No 1/2003. However, it is not apparent from that decision, nor is it argued before the Court, that the Commission also intended to apply, in the context of that decision, Article 10 of Regulation No 1/2003.

545 It follows that the Decision of 9 November 2010, which was not adopted on the basis of Article 10 of Regulation No 1/2003 for the purpose of finding that the applicants had not infringed Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC Switzerland Air Transport Agreement on intra-EEA and EU Switzerland routes, and which does not contain, in its operative part, a declaration to that effect, cannot constitute a declaration of non-liability on the part of the applicants in that regard.

546 Lastly, in so far as the applicants claim that the principles deriving from the judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C 238/99 P, C 244/99 P, C 245/99 P, C 247/99 P, C 250/99 P to C 252/99 P and C 254/99 P, EU:C:2002:582), must not result in the principle ne bis in idem being inapplicable, it must be held that that argument is based on the premiss that the conditions for the application of that principle were satisfied. As is apparent from paragraph 545 above, the applicants have not been declared not liable for the conduct at issue by a previous decision, so that the principle ne bis in idem does not apply in the present case. The premiss on which the present argument is based is therefore lacking.

547 Even if the applicants also intended, by reference to that case-law, to argue that the judgment of 16 December 2015, Singapore Airlines and Singapore Airlines Cargo Pte v Commission (T 43/11, not published, EU:T:2015:989), was tantamount to an ‘acquittal’ in so far as the annulment by the General Court was not ordered in the light of a purely formal defect, it is sufficient to note that the General Court held that the Decision of 9 November 2010 was vitiated by a defective statement of reasons, which justified its annulment (see paragraph 16 above), with the result that, contrary to what the applicants claim, that decision was indeed annulled on procedural grounds without a ruling on the merits of the facts complained of.

548 In that regard, it should also be noted that, by that judgment, the General Court annulled the Decision of 9 November 2010 on the ground, inter alia, that that decision contained contradictions as regards the extent of the applicants’ liability in relation to intra EU and EU Switzerland routes.

549 In the light of the foregoing, this part of the plea must be rejected, without it being necessary to rule on the final nature of the alleged declaration of non-liability or on the existence of a second set of proceedings concerning the same facts arising from the adoption of the contested decision in consequence of the annulment by the Court of the Decision of 9 November 2010.

(c) Third part, alleging an error in so far as the Commission found that the applicants participated in the single and continuous infringement on intra-EU routes before 1 May 2004 and on EU Switzerland routes without establishing that they were potential competitors on those routes

550 The applicants claim that, in light of the jurisdictional rules and substantive rules governing the application of Article 101 TFEU to the air transport sector at the relevant time, the Commission cannot rely as against them on conduct prior to 1 May 2004 to ascribe liability to them for an infringement relating to intra-EU routes, given that they have never provided freight services on those routes and given that the Commission has failed to show that they were potential competitors of carriers operating those routes, having taken an approach to that question that is mistaken in law, as was shown in the context of the first plea. The same arguments apply to the evidence of exchanges within ACCS and concerning EU Switzerland routes.

551 The Commission disputes the applicants’ line of argument.

552 In order to respond to the present plea, it is necessary, first of all, to recall the applicable principles (see paragraphs 553 to 567 below), in the second place, to identify the reasons why the Commission imputed to the applicants liability for the single and continuous infringement in so far as it concerned intra EU and EU Switzerland routes (see paragraphs 568 to 572 below) and, in the third place, to examine the merits of those reasons (see paragraphs 573 to 578 below).

(1) The applicable principles

553 It must be borne in mind that, as is apparent from paragraph 115 above, Article 101(1) TFEU prohibits all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market.

554 Accordingly, if the conduct of undertakings is to be subject to the prohibition in principle laid down in Article 101(1) TFEU, that conduct must not only reveal the existence of coordination between them – in other words, an agreement between undertakings, a decision by an association of undertakings or a concerted practice ‒ but that coordination must also have a negative and appreciable effect on competition within the internal market (see, to that effect, judgment of 13 December 2012, Expedia, C 226/11, EU:C:2012:795, paragraphs 16 and 17).

555 As regards agreements or concerted practices between undertakings operating at the same stage of the production or distribution chain, it is therefore necessary for such collusion to occur between undertakings which are, if not actually, at least potentially in competition.

556 It should, however, be recalled that, as the Court of Justice held in paragraph 34 of the judgment of 22 October 2015, AC-Treuhand v Commission (C 194/14 P, EU:C:2015:717), Article 101(1) TFEU does not concern only the undertakings operating on the market affected by the restrictions of competition. Nor is its scope limited to the undertakings operating on markets upstream or downstream of that market or neighbouring markets or undertakings which restrict their freedom of action on a particular market under an agreement or as a result of a concerted practice.

557 The text of Article 101(1) TFEU refers generally to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the internal market, irrespective of the market on which the parties operate, and only the commercial conduct of one of the parties need be affected by the terms of the arrangements in question (see, to that effect, judgment of 22 October 2015, AC-Treuhand v Commission, C 194/14 P, EU:C:2015:717, paragraph 35).

558 It follows that an undertaking may infringe the prohibition in principle laid down in Article 101(1) TFEU where its conduct, as coordinated with that of other undertakings, has as its object the restriction of competition on a market on which it is neither an actual competitor nor a potential competitor.

559 Those considerations apply, mutatis mutandis, to Article 53 of the EEA Agreement and to Article 8(1) of the EC Switzerland Air Transport Agreement.

560 Contrary to what the applicants claim, it cannot be inferred from the judgment of 22 October 2015, AC-Treuhand v Commission (C 194/14 P, EU:C:2015:717), that the scope of that judgment is limited to situations in which the undertaking concerned played a ‘facilitating role’ in the cartel at issue. In that judgment, the Court of Justice refrained from establishing the facilitating nature of the role of the undertaking concerned as a condition for incurring liability. It merely reproduced, in paragraphs 37 to 39 of that judgment, a finding of fact made by the General Court at first instance in response to the argument that the action taken by the appellant in the case which gave rise to that judgment constituted mere peripheral services that were unconnected with the obligations assumed by the producers and the ensuing restrictions of competition.

561 The Court’s reasoning was based, inter alia, on the case-law on the concept of a single and continuous infringement (judgment of 22 October 2015, AC-Treuhand v Commission, C 194/14 P, EU:C:2015:717, paragraph 30). According to that case-law, an infringement of the prohibition of principle laid down in Article 101(1) TFEU, Article 53(1) of the EEA Agreement and Article 8(1) of the EC Switzerland Air Transport Agreement, can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of those provisions. Accordingly, if the different actions form part of an ‘overall plan’, because their identical object distorts competition within the internal market, the EEA or the territory covered by the EC Switzerland Air Transport Agreement, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see paragraph 312 above).

562 An undertaking which has participated in such a single and complex infringement through its own conduct, which fell within the definition of an agreement or concerted practice having an anticompetitive object for the purposes of Article 101(1) TFEU, Article 53(1) of the EEA Agreement or Article 8(1) of the EC Switzerland Air Transport Agreement and was intended to help bring about the infringement as a whole, may accordingly be liable also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C 441/11 P, EU:C:2012:778, paragraph 42 and the case-law cited).

563 An undertaking may thus have participated directly in all the forms of anticompetitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the forms of anticompetitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (judgment of 6 December 2012, Commission v Verhuizingen Coppens, C 441/11 P, EU:C:2012:778, paragraph 43).

564 It follows that three conditions must be met in order to establish participation in a single and continuous infringement, namely the existence of an overall plan pursuing a common objective, the intentional contribution of the undertaking concerned to that plan, and its awareness (proved or presumed) of the offending conduct of the other participants in which it did not participate directly (judgment of 16 June 2011, Putters International v Commission, T 211/08, EU:T:2011:289, paragraph 35; see also judgment of 13 July 2018, Stührk Delikatessen Import v Commission, T 58/14, not published, EU:T:2018:474, paragraph 118 and the case-law cited).

565 Even the subsidiary, accessory or passive contribution of an undertaking to the implementation of a cartel is sufficient to impute liability to that undertaking for anticompetitive conduct implemented or envisaged by other undertakings in pursuit of the same anticompetitive aim, of which it has actual or constructive knowledge (see, to that effect, judgments of 8 July 2008, AC-Treuhand v Commission, T 99/04, EU:T:2008:256, paragraphs 133 and 134, and of 8 September 2010, Deltafina v Commission, T 29/05, EU:T:2010:355, paragraphs 55 and 56).

566 On the other hand, the existence of a competitive relationship between the undertakings concerned is not a requirement for classifying anticompetitive conduct as a single and continuous infringement or for imputing that liability. An interpretation to the contrary would deprive the concept of ‘single and continuous infringement’ of part of its meaning, since it would exonerate those undertakings of any indirect liability based on the conduct of non-competing undertakings which, nevertheless, contribute by their conduct to achieving the overall plan specific to the single and continuous infringement (see, to that effect, judgment of 26 January 2017, Duravit and Others v Commission, C 609/13 P, EU:C:2017:46, paragraphs 124, 137 and 138).

567 It follows that the Commission was in the present case entitled to find the applicants liable for aspects of the single and continuous infringement, the object of which was to restrict competition on routes on which they could not operate, provided that it has been shown that they intended, through their own conduct, to contribute to the common objectives pursued by all of the incriminated carriers and that they were aware of the offending conduct planned or put into effect by those incriminated carriers in pursuit of the same objectives and in which they did not participate directly, or that they could reasonably have foreseen that conduct and were prepared to take the risk.

(2) The grounds on which the Commission imputed to the applicants liability for the single and continuous infringement in so far as it concerns intra-EU and EU Switzerland routes

568 In recitals 862 to 868 of the contested decision, the Commission set out the case-law relating to the concept of a single and continuous infringement. In particular, in recitals 865 to 868 of that decision, it recalled that an undertaking may, under certain conditions, be found liable for a single and continuous infringement as a whole even if that undertaking did not participate directly in ‘all [its] constituent elements’. In recital 895 of that decision, the Commission reiterated that principle in response to an argument put forward by British Airways and Air Canada, which maintained that they had not been aware of the existence of a ‘wider conspiracy’.

569 In recitals 869 to 902 and Article 1 of the contested decision, the Commission concluded that there was a single and continuous infringement, encompassing all of the contacts at issue, whether or not they took place within the EEA, and the routes concerned, whether inbound, outbound or intra-EEA. It found, inter alia, in recital 879 of that decision, that the contacts at issue were aimed at the ‘attainment of the single objective desired by those responsible, within the framework of an overall plan’.

570 In recital 878 of the contested decision, the Commission observed that all of the incriminated carriers had been ‘involved in communications and concertation regarding the FSC with many [having participated] with regard to [the] SSC and the [refusal to pay] commission’. In recital 881 of that decision, it added that ‘the majority of the parties’, including the applicants, were involved in all three elements of the single and continuous infringement (see, also, recital 803). It is apparent from recitals 882 and 883 of that decision that the Commission thus intended to find that the applicants had participated directly in each of those elements and not that they had directly participated in only some of them, but had been aware of all the other offending conduct planned or put into effect by the other incriminated carriers in pursuit of the single anticompetitive objective, or could reasonably have foreseen it and were prepared to take the risk.

571 However, it is clear from the Commission’s replies to the arguments put forward by Air Canada and British Airways in recitals 894 to 897 of the contested decision that it did not consider that the applicants had directly participated in all the anticompetitive activities which fell within those elements.

572 It was therefore on the ground that the applicants intended, irrespective of their status as potential competitors on intra EEA and EU Switzerland routes, to contribute to the overall plan pursuing the common anticompetitive objective described in recitals 872 to 876 of the contested decision and had awareness (proved or presumed) of the offending conduct of the other incriminated carriers in which they did not participate directly that the Commission imputed to them liability for the single and continuous infringement, including in so far as it concerned intra EU and EU Switzerland routes.

(3) The merits of the grounds on which the Commission imputed liability to the applicants for the single and continuous infringement in so far as it concerns intra EU and EU Switzerland routes

573 In recitals 803 and 806 of the contested decision, the Commission described the contacts which the applicants had maintained with competitors throughout the period during which they participated in the single and continuous infringement ‘concerning the implementation of the FSC, SSC and commissioning on surcharges in the [freight] sector’. It is apparent from those recitals that the applicants participated in the concerted action on intra EU and EU Switzerland routes. It must therefore be held that several contacts relating to the FSC in which the applicants participated concerned, at least in part, such routes.

574 It is appropriate to mention among the factors referred to in that decision several email exchanges within the ACCS (recitals 163, 182, 255, 327, 364, 365, 366, 367, 388, 390, 426, 427, 428, 429, 440, 443, 460, 461, 462, 463, 499, 501, 502, 534, 535, 536, 537, 561, 562 and 563, 573 and 574 of the contested decision), several emails by which Lufthansa sent the applicants and other carriers an announcement of a change in the amount of the FSC (recitals 274, 279, 346, 411, 446, 450, 482 and 495 of the contested decision), an internal CPA email concerning the increase in the FSC on traffic originating in Belgium (recital 414 of the contested decision) and an email which Aviainform sent to the applicants and several other carriers on 22 July 2005 (recital 492 of the contested decision).

575 As regards the anticompetitive activities relating to intra EU and EU Switzerland routes in which the applicants did not directly participate, it is sufficient to observe that they do not dispute, in the context of this part of the plea, that they had the requisite knowledge of them.

576 In so far as the applicants dispute that they could have knowingly contributed to the implementation of anticompetitive coordination on intra EU and EU Switzerland routes, it must be stated that, as is apparent from recitals 872 to 876 of the contested decision, the single and continuous infringement pursued the single anticompetitive objective of restricting competition between incriminated carriers on surcharges at least within the European Union, the EEA and Switzerland. In the context of the fourth part of the first plea, the Court rejected the applicants’ complaint against such a finding.

577 It is apparent from the contested decision that the applicants intended to contribute by their own conduct to the achievement of that aim. The applicants not only encouraged the continuation of the single and continuous infringement and compromised its discovery by failing to distance itself publicly from the content of the contacts relating to intra EU and EU Switzerland routes in which they took part or to report them to the competent administrative authorities, but also, by coordinating the surcharges and the refusal to pay commission on EEA third country routes, helped to ensure that freight forwarders could not circumvent the payment of surcharges on intra EU and EU Switzerland routes by using alternative routes inter alia via Singapore and, consequently, contributed to the achievement of the common anticompetitive aim identified in recitals 872 to 876 of the contested decision (see paragraph 169 above).

578 It follows that the Commission made no error in finding the applicants liable for the single and continuous infringement in so far as it concerns intra EU and EU Switzerland routes, irrespective of their possible status as potential competitors on those routes. The present part of the plea must therefore be rejected.

(d) The fourth part, alleging errors of assessment as regards the incriminating nature of certain contacts used against the applicants

579 The applicants submit that, once the categories of evidence referred to in the other parts of this plea have been excluded, then either the remaining evidence is insufficient to establish their involvement in the single and continuous infringement, or the contacts in question did not address confidential information or were part of the legitimate implementation of special prorate agreements or block-space agreements concluded with Lufthansa, or cannot be presumed to have had any influence on the competitive conduct of the other party to the exchange.

580 The Commission disputes the applicants’ line of argument.

581 As a preliminary point, it should be noted that none of the categories of evidence referred to in the other parts of the present plea was excluded from the body of evidence used against the applicants.

582 In the context of this part of the plea, the applicants dispute the probative value of the contacts referred to, first, in recital 492 of the contested decision, second, in recitals 411, 446, 450, 482 and 495 of that decision, third, in recitals 360 and 361 of that decision and, fourth, in recital 414 of that decision.

583 In the first place, as regards the email exchange referred to in recital 492 of the contested decision, the applicants claim that they were only passive recipients of it and that that exchange did not involve any ‘confidential information regarding future pricing plans’.

584 As regards the first argument, it is sufficient to recall that a passive mode of participation in an infringement is capable of rendering the undertaking taking part in it liable (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C 204/00 P, C 205/00 P, C 211/00 P, C 213/00 P, C 217/00 P and C 219/00 P, EU:C:2004:6, paragraphs 82 and 84, and of 21 January 2016, Eturas and Others, C 74/14, EU:C:2016:42, paragraphs 46 to 49).

585 As regards the second argument, it is apparent from recital 492 of the contested decision that the manager of Aviainform sent several carriers, including the applicants, the advertisement of a small airline which did not charge the FSC, which triggered a chain of emails in which carriers condemned that use of the inforwarding.com website, on which the advertisement at issue appeared, as a misuse, one of the carriers stating that it had contacted the small airline, which had told it that ‘it was none of its business’. It follows that the contacts referred to in that recital were relevant for the purposes of establishing the coordinated conduct of the parties to the cartel at issue in relation to the FSC.

586 In so far as the applicants claim, at the stage of the reply, that the Commission misunderstood the meaning of the ‘misuse’ complained of by the carriers, a term which allegedly calls into question only the inforwarding.com website and not the pricing policy of that small airline, it must be held that that reading is contradicted by the initiative taken by one of the carriers to contact the airline in question directly, as is apparent from the last sentence of recital 492. Moreover, that reading is also precluded by the content of the exchanges in question which are produced in Annex B.7 to the defence, from which the following is apparent: if this tool is being used to advertise unreasonably [a]ffecting pricing it creates more harm than benefit’.

587 In the second place, as regards recitals 411, 446, 450, 482 and 495 of the contested decision, the applicants claim, with regard to recital 411, that it concerns a communication from Lufthansa to 13 carriers, 7 of which are not addressees of the contested decision, and that the background for this communication may have been a meeting described in recital 425 of the contested decision in which they did not participate. With regard to the other recitals, the applicants submit that the emails sent by Lufthansa described in those recitals, in so far as they start with the words ‘dear partners’, are part of Lufthansa’s legitimate objective of informing its partners in the context of arrangements on the use of its capacities of changes to surcharges which they might be required to charge when reselling ‘space’ on aircraft operated by Lufthansa.

588 As regards the first contact, referred to in recital 411 of the contested decision, the applicants have failed to explain how the evidence they put forward is such as to call into question the contact’s probative value.

589 In any event, as regards the fact that the contact at issue involved other carriers, which were not held liable for the single and continuous infringement, it must be borne in mind that, as is apparent from recital 845 of the contested decision, it is not necessary for every item of evidence produced by the Commission to support the firm conviction that each element of the infringement was committed. It is sufficient if the body of evidence relied on by the Commission, viewed as a whole, meets that requirement. (see judgment of 16 November 2011, Sachsa Verpackung v Commission, T 79/06, not published, EU:T:2011:674, paragraph 60 and the case-law cited).

590 The Commission was therefore fully entitled to state, in recital 716 of the contested decision, that it ‘[did] not necessarily hold every recital … and every single item of evidence therein to be of equal value’ and that ‘rather, the recitals to which reference [was] made [formed] part of the overall body of evidence [on which it relied] and [had] to be evaluated in this context’.

591 It has not been shown that a body of evidence was available to the Commission against the carriers in question in the contacts at issue that was equivalent to that which it had against the applicants.

592 At the stage of the reply, the applicants nevertheless add that the contact referred to in recital 411 of the contested decision is, in essence, devoid of probative value on the ground that it relates to publicly available information. In that regard, it must be borne in mind that the exchange of publicly accessible information infringes Article 101(1) TFEU where it underpins another anticompetitive arrangement (see, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C 204/00 P, C 205/00 P, C 211/00 P, C 213/00 P, C 217/00 P and C 219/00 P, EU:C:2004:6, paragraph 281).

593 It is apparent from recitals 118, 121, 125, 706 and 848 of the contested decision that emails such as that at issue, by which Lufthansa announced the increase in its FSC to several other carriers, served as a support for such a mechanism.

594 As regards the other contacts referred to in recitals 446, 450, 482 and 495 of the contested decision, assessed in isolation, they could lead to the belief that Lufthansa was merely informing, in an unsolicited and unreciprocated manner, some of its business partners of the forthcoming changes to its FSC. It is true that the Commission has not established that all the addressees of those emails were parties to commercial agreements with Lufthansa. It is nevertheless common ground that they themselves and several others were such parties.

595 However, it should be observed that, in those emails, Lufthansa did not merely report on publicly available information, but, on the contrary, sent group emails, thus revealing to all the addressees the identity of the carriers concerned (see recital 797 of the contested decision). Moreover, the fact that those contacts served, at least in part, as a support for the cartel at issue, in accordance with what is stated in recitals 118, 121, 125, 706 and 848 of the contested decision, is confirmed by recital 482 of the contested decision, in which the Commission cited the reply of a carrier to a communication from Lufthansa of the same type as those cited in recitals 446, 450 and 495. In that reply, that carrier informs Lufthansa as follows: ‘we have instructed our offices to implement the increase accordingly’. It is not apparent from the material in the file that that reply falls within the context of the implementation of a commercial agreement concluded between that carrier and Lufthansa. Moreover, it is apparent from the examination of the chronology of the contacts relating to the FSC that those group emails sent by Lufthansa triggered a chain reaction among the other carriers regarding their own FSCs. Thus, Lufthansa’s communication of 22 August 2005 (recital 495) gave rise, on the same day or the following day, to internal exchanges at SAS (recital 496), Japan Airlines (recital 497) and another carrier (recital 498) on the issue of the FSC increase.

596 In the third place, as regards recitals 360 and 361 of the contested decision, which refer to an exchange between Martinair and the applicants concerning the applicants’ intention to increase their FSC, the applicants claim that (i), on that occasion, they provided Martinair with incorrect information about their intentions and (ii) it is clear that the crucial point for Martinair was rather what KLM and AF, which were important on its domestic market, would do.

597 As regards their first argument, it is sufficient to note that, by agreeing to maintain contact directly with another carrier regarding their intention to increase the FSC, the applicants reinforced the coordination at work.

598 As regards their second argument, the applicants have failed to explain how that fact, if proven, would have any effect on the probative value of the contacts which are used against them in recitals 360 and 361 of the contested decision.

599 In the fourth place, as regards recital 414 of the contested decision (see paragraph 385 above), the applicants dispute the probative value of the internal CPA email of 24 September 2004 which is described in that recital and which states as follows: ‘in [Brussels] we start [the increase in the FSC] as of [1 October] along with [four other carriers]. [The applicants] claimed initially they would [too] but then [they] were [reminded] by [their headquarters] to go for [4 October]’. They rely on the fact that the information was already public, given that the announcement of the increase in their FSC was made on 21 September 2004, and that the information reported by the CPA employee was incorrect, the public announcement of 21 September 2004 indicating that there would be an increase on 1 October 2004.

600 In that regard, it must be stated that, irrespective of whether the increase in the applicants’ FSC was public on the date on which CPA’s internal email was sent, that email refers to exchanges between the latter and the applicants concerning their timetable for increasing the FSC. As was recalled in paragraph 593 above, exchanges of that type, including when they related to public information, served as a support for the cartel at issue. Furthermore, if the information obtained by CPA was incorrect, the fact remains that the applicants do not offer an alternative explanation for the purpose of that contact, whose actual existence has not been usefully called into question. The Commission was therefore justified in using that contact against the applicants and in finding moreover, in recital 855, in response to the applicants’ line of argument, that it ‘proves that [the applicants were] involved in the illicit coordination of the FSC increase’.

601 In the light of the foregoing, this part of the plea must be rejected and, accordingly, the present plea must be rejected in its entirety.

7. The fifth plea in law, alleging errors of law and fact and errors of assessment in the imputing of liability for the infringement to the applicants

602 The applicants maintain that the Commission erred in law and in fact by imputing to them liability for the single and continuous infringement. According to the applicants, the Commission did not properly consider the actual extent of their participation in the single and continuous infringement and did not demonstrate that they were or ought to have been aware of aspects of the single and continuous infringement in which they did not participate. They rely, in essence, on two complaints in support of that proposition.

603 In the first place, the applicants submit that, even if it is assumed that the material in the administrative file established the existence of an infringement concerning intra EEA and EU Switzerland routes and their participation therein, they nevertheless played only a limited part in the aspects of that infringement concerning EEA third country routes after 1 May 2004.

604 First, their involvement in the element of the single and continuous infringement concerning the refusal to pay commission is described merely by reference to contacts relating to just four distinct national markets (Hong Kong, Germany, Switzerland, Italy), and their involvement should be circumscribed accordingly, subject to proof of their (actual or presumed) knowledge of other conduct.

605 Secondly, their involvement in the element of the single and continuous infringement concerning the SSC is described merely by reference to contacts relating to just three distinct national markets (Hong Kong, United States and Denmark), and their involvement should be circumscribed accordingly, subject to proof of their (actual or presumed) knowledge of other conduct.

606 Thirdly, their involvement in the component of the single and continuous infringement relating to the FSC is described by reference to contacts between them and their competitors relating to just some distinct national markets, namely Belgium, Hong Kong, India, the Netherlands, Singapore, Switzerland and Thailand, and is therefore not capable of proving their involvement in the whole of that component. The contested decision also relies on contacts between the applicants and their partners in the WOW alliance which relate specifically to the level of the FSC ‘in Scandinavia’ and Italy. Participation by the applicants in an infringement that involves all routes that they served to or from the EEA therefore depends on whether the contacts between them and their WOW partners described in the remaining recitals involve coordination of pricing on all EEA services. However, the scope of FSC coordination between the applicants and Lufthansa was limited by the applicants’ broader FSC policy in this area, which was, essentially, to follow the local practice of the leading carrier. FSC levels and adjustments could therefore have diverged as between the applicants and Lufthansa, as is illustrated by the changes observed in a number of countries, in particular Italy. The exchanges concerning Italy show, more broadly, that there was no agreement to align or coordinate FSC levels between Lufthansa and the applicants.

607 In the second place, the applicants maintain that the arrangements among the ‘core group’ of EU-based carriers amount to a distinct aspect of the single and continuous infringement in which they clearly did not participate. The evidence on which the Commission relies in the contested decision to ascribe liability for these arrangements to the applicants, on the ground that it shows their awareness (actual or presumed) of them is insufficient, in that it merely concerns contacts between local cargo managers regarding their local markets and is unrelated to the ‘core group’ contacts between senior managers at the head offices of the leading cargo operators in Europe at which pricing matters relating to several markets were discussed. However, those contacts, referred to in recital 965 of the contested decision, do not provide any basis for understanding the general scope of the cartel at issue or its essential characteristics described in recitals 124 to 128, 874 and 875 of the contested decision. That is also the case as regards the worldwide scale of that cartel, the application in full of increases arising from the fuel indices, the adoption of the same steps by competitors and the use of ‘comfort calls’.

608 The applicants conclude from the foregoing that the contested decision must be annulled in its entirety. Indeed, the instances of conduct in respect of which they submit, in the context of the present plea, that they had proved that they could not be held liable are not classified as distinct infringements in the contested decision.

609 The Commission disputes the applicants’ line of argument.

610 As a preliminary point, it is apparent from the case-law cited in paragraphs 563 and 564 above that in order to impute to the applicants the single and continuous infringement as a whole, the Commission was required to establish either that they had participated in all the forms of conduct comprising that infringement or that they were aware of all the unlawful conduct which the other participants in the cartel at issue planned or put into effect in pursuit of the same objectives and in which they had not directly participated, or that they could reasonably have foreseen it and were prepared to take the risk.

611 As is apparent from paragraph 570 above, it follows from recitals 878 and 881 to 883 of the contested decision that the Commission imputed to the applicants liability for the single and continuous infringement on the ground that they had directly participated in each of its three elements.

612 As was stated in paragraph 571 above, it did not however consider that the applicants had directly participated in all the anticompetitive activities which fell within those elements. In recitals 963 and 964 of the contested decision, the Commission rejected in the following terms the applicants’ and SAS’ argument that ‘the contacts between WOW [alliance] members [did] not form part of a broader cartel as they had no knowledge about the coordination of surcharges between other carriers’:

‘… there is ample evidence that clearly demonstrates that [the applicants] and [SAS] were aware of wider coordination involving other carriers not members of WOW. On the basis of the evidence listed in recitals (965) to (967) the Commission considers that both [SAS] and [the applicants] were aware of the broader coordination of surcharges or at least could reasonably have foreseen or been aware of it and were prepared to take the risk’.

613 The issues on which the parties disagree in the context of the present plea are the extent of the applicants’ direct participation in the various elements of the single and continuous infringement and whether the various contacts which the Commission found against them were such as to give them sufficient awareness of the concerted practices in which they did not directly participate in order to be held liable for the single and continuous infringement as a whole.

614 In that regard, it should be borne in mind that it is for the Commission to prove that the undertaking concerned had the requisite awareness of the anticompetitive conduct planned or put into effect by the other participants in the cartel as a whole but in which it did not directly participate (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C 441/11 P, EU:C:2012:778, paragraph 67).

615 In order to do so, the Commission must produce sufficiently precise and consistent evidence to establish that the undertaking concerned had such awareness (see, to that effect, judgment of 20 March 2002, Sigma Tecnologie v Commission, T 28/99, EU:T:2002:76, paragraph 51).

616 The Commission is not, however, required to show that the undertaking concerned was or ought to have been aware of the detail of the concerted practices which took place in the context of the contacts at issue in which it did not participate. Nor is the Commission required to establish that that undertaking was or ought to have been aware of all of those contacts (see, to that effect, judgment of 14 December 2006, Raiffeisen Zentralbank Österreich and Others v Commission, T 259/02 to T 264/02 and T 271/02, EU:T:2006:396, paragraph 193).

617 The undertaking concerned must therefore simply be aware of the general scope and the essential characteristics of the cartel as a whole (see judgment of 10 October 2014, Soliver v Commission, T 68/09, EU:T:2014:867, paragraph 64 and the case-law cited).

618 As is apparent from paragraphs 394 and 395 above, the Commission described the general scope and essential characteristics of the cartel at issue in Section 4.1 of the contested decision. It described in more detail the collusion on the FSC in Section 4.3.2, which it entitled ‘nature of the illicit contacts between competitors concerning the fuel surcharge’, and explained that the same principles applied, mutatis mutandis, to the elements of the single and continuous infringement relating to the FSC and the refusal to pay commission.

619 It is in the light of those considerations that the Court must examine whether the present plea is well founded in so far as it relates, in the first place, to the worldwide nature of the various elements of the single and continuous infringement and, in the second place, to the activities of a possible ‘core group’. For the reasons given in the context of the examination of the second and third parts of the fourth plea above, that examination must be carried out in the light not only of the evidence subsequent to 1 May 2004, but also of the evidence prior to that date.

(a) The worldwide nature of the various elements of the single and continuous infringement

620 As is apparent from paragraphs 394 and 395 above, the worldwide scale of the cartel at issue was based on its general scope and its essential characteristics, as described in the contested decision. The applicants dispute that they had the requisite awareness of that scale, both as regards the FSC and as regards the SSC and the refusal to pay commission.

(1) The FSC

621 In recital 804 of the contested decision, the Commission relied, as against the applicants, on 83 recitals in which reference is made to contacts relating to the FSC. Examination of those contacts reveals that both the applicants’ direct participation in the single and continuous infringement and their awareness of it went beyond, from the geographic point of view, Belgium, Hong Kong, India, the Netherlands, Singapore, Switzerland, Thailand and Scandinavia. First, it is apparent from an examination of those recitals that those contacts also concerned the United Kingdom (recitals 139 and 158), Japan (recitals 180 and 257), Germany (recitals 173 and 251), Italy (recital 456) and Indonesia (recital 507).

622 In the second place, it must be pointed out that the applicants maintained numerous contacts with other carriers at headquarters level the geographic scope of which was in no way limited to ‘specific national markets’. The applicants were thus among the addressees of several Lufthansa FSC adjustment announcements which did not involve geographic restrictions (see, inter alia, recitals 274, 279, 346 and 446 of the contested decision). One of those announcements is, moreover, among those which the Commission expressly found, in footnote 1323 to that decision, referred to a worldwide application of those surcharges, which ‘was not limited to a specific route’ (recital 279 of that decision).

623 Moreover, several of the contacts whose geographic scope was not limited to ‘specific national markets’ took place among WOW alliance members. Contrary to the applicants’ submission, the geographic scope of the contacts between members of that alliance was in no way limited to Scandinavia. By way of example, in recital 209 of the contested decision, the Commission refers to exchanges at headquarters level concerning the reintroduction of the FSC in January 2002 in order to ensure a certain level of harmonisation. The contacts described in recitals 223, 343, 355 and 381 of the contested decision also had a geographic scope which was not limited to one area.

624 Since the contacts listed in paragraphs 622 and 623 above were such as to provide the applicants with the requisite knowledge of the worldwide scale of the coordination relating to the FSC, the question whether the ‘coordination between [Lufthansa and the applicants], including the communication by [Lufthansa] of adjustments in its FSC, constituted EU-wide coordination’ can, contrary to the applicants’ submission in the application, only be rejected as being entirely irrelevant.

625 That is all the more true since, in the contested decision, the Commission did not allege that the applicants had in all circumstances followed Lufthansa in its adjustments to the FSC or found that the incriminated carriers had systematically followed Lufthansa at local level. On the contrary, in recital 119 of the contested decision, the Commission found as follows:

‘Concerning the implementation of FSC at local level, a system was often applied whereby leading [carriers] on particular routes or in certain countries would announce the change first, and they would be followed by others. This system was based on contacts among local representatives of carriers concerning their actions and intentions relating to FSC, the object of which was to coordinate the application of FSC at local level. …’

626 In any event, it should be pointed out that the applicants’ line of argument relating to the autonomy of their strategy concerning the adjustment of the FSC rate is incorrect.

627 In this regard, subject to proof to the contrary, which the economic operators concerned must adduce, the presumption must be that the undertakings taking part in the concerted action and remaining active on the market take account of the information exchanged with their competitors for the purposes of determining their conduct on that market. That is all the more the case where the undertakings concert together on a regular basis over a long period (see judgment of 16 June 2015, FSL and Others v Commission, T 655/11, EU:T:2015:383, paragraph 417 and the case-law cited).

628 According to the case-law, even evidence tending to demonstrate the absence of formal commitments or actual coordination between the undertakings concerned is not sufficient to prove that they never took into account the information exchanged during the contacts in question in order to determine their conduct on the market (see, to that effect, judgment of 16 June 2011, Heineken Nederland and Heineken v Commission, T 240/07, EU:T:2011:284, paragraph 188).

629 In the present case, the applicants acknowledge that Lufthansa’s announcements provided a basis for their decisions regarding their FSC policy in respect of Germany and Scandinavia, but claim that they generally followed the national or leading operator on markets where there was a strong local carrier and, on other markets, moves by their closest competitors. They cite in support of their arguments, inter alia, charts which they claim show that, on three successive occasions, during the period from 2004 to 2005, they did not follow Lufthansa in Italy and that they always followed the local carrier in France, the Netherlands and the United Kingdom. As regards concerted action which extended over a period of more than six years and which concerned, according to recital 889 of the contested decision, all routes throughout the world, those factors are not sufficient to rule out any link between, on the one hand, the contacts between Lufthansa and the applicants and, on the other, the determination by the applicants of their conduct on the market.

630 Moreover, the documents in the file tend to show that such a link existed. Thus, on several occasions, the applicants took the initiative to obtain information from Lufthansa regarding future adjustments to the FSC. In recital 381 of the contested decision, the Commission described an email of 24 June 2004 in which the applicants asked Lufthansa as follows:

‘looks like we are heading for another round of increase of [the FSC] [next Monday]? If you can send me a note when [Lufthansa] has decided to proceed. We’ll likely be sending out [the] same guidance to our field.’

631 Similarly, in recital 343 of the contested decision, the Commission refers to an email of 26 April 2004, in which the applicants ask Lufthansa whether it is planning to increase the FSC to ‘EUR/USD 0.20/kg’.

632 In addition, it is apparent from the contested decision that it was understood among the other incriminated carriers that the applicants would follow Lufthansa’s adjustments. Thus, in recital 402 of the contested decision, reference is made to an email of 2 September 2004 in which Martinair states the following with regard to Lufthansa’s decision to suspend the FSC increase:

‘[Lufthansa’s] decision is not good since in practice it means that carriers like [the applicants], SAS [and Japan Airlines] etc. will not increase as well.’

633 In recital 403 of the contested decision, the Commission refers to an email of 7 September 2004 on the same subject. It is apparent from that email that the applicants and AF ‘have indicated that they have no intention to increase their FS[C]. They are both waiting for [Lufthansa]’.

634 It follows that the contacts relating to the FSC in which the applicants participated were such as to establish that they had the requisite awareness of the worldwide scale of the coordination relating to the FSC.

(2) The SSC

635 In recital 805 of the contested decision, the Commission relied, as against the applicants, on 26 recitals in which reference is made to contacts relating to the SSC. Contrary to the applicants’ submission, those are not contacts which concern solely the markets of Hong Kong, the United States and Denmark. First of all, several of those contacts concerned Germany (recital 581 of the contested decision), France (recitals 594 and 609 of that decision) or the United Kingdom (recital 636 of that decision).

636 Next, even among the contacts in one of the three third countries referred to by the applicants, at least one refers to the general applicability of the SSC and was thus such as to give them awareness of the worldwide nature of the coordination relating to the SSC. These are the minutes of a BAR CSC Executive Committee meeting on 30 March 2004 in Hong Kong which are described in recital 666 of that decision and are also cited in footnote 1323 and from which it is apparent that the amount of the SSC from Hong Kong is based on the ‘worldwide benchmark’.

637 Lastly, it must be pointed out that a number of the contacts referred to in recital 805 of the contested decision took place not at local level but between the head offices of the applicants and of other carriers. The geographic scope of some of those contacts was by no means limited to one of the three countries or territories to which the applicants refer. It is apparent from recital 611 of the decision that Lufthansa sent out in October 2001 a standard letter justifying recourse to the SSC to the CEOs of the cargo divisions of various carriers, including the applicants. According to that recital, the accuracy of which is not called into question by the applicants, that letter described the SSC and the reasons which led Lufthansa to impose it. According to the same recital, that letter had been sent ‘in the hope that other carriers would emulate [Lufthansa Cargo]’s SSC model’. Similarly, various contacts relating to the SSC took place among the members of the WOW alliance (see, in particular, recital 600) and it is not claimed that their geographic scope was limited to the three third countries referred to by the applicants.

638 It follows that the examination of the contacts relating to the SSC in which the applicants participated establishes that they had the requisite awareness of the worldwide scale of the coordination relating to the SSC, without it being necessary to determine whether the Commission was justified in finding, in recitals 961 and 962 of the contested decision, that the scope of the contacts described in recitals 628 to 632 of that decision went beyond Denmark.

(3) The refusal to pay commission

639 In recital 806 of the contested decision, the Commission relied, as against the applicants, on seven recitals in which reference is made to contacts relating to the refusal to pay commission. Those contacts concerned Germany (recitals 686 and 687 of the contested decision), Switzerland (recitals 689, 690, 692 and 693 of that decision) and Italy (recital 696 of that decision). In addition, in recital 503 of that decision, the Commission referred to a BAR CSC meeting of 11 July 2005 which the applicants attended and at which both the FSC and the refusal to pay commission were discussed. In recital 880 of that decision, the Commission cited that meeting among several examples of contacts in which the surcharges and the refusal to pay commission had been discussed jointly.

640 It is true that those contacts took place in response to local initiatives by freight forwarders or associations of freight forwarders. Thus, the contacts described in recitals 686 and 687 of the contested decision followed a request from DHL, while those referred to in recitals 689 (see also Annex A.24F to the application), 690, 692 and 693 followed requests from VTR Air of Spedlogswiss and the contact referred to in recital 696 was made in the context of requests from the Italian freight forwarders’ association (ANAMA).

641 It cannot be considered, however, that those contacts were purely local and isolated responses to steps that were also local taken by freight forwarders. As the Commission rightly observes, the exchanges concerning Germany described in recitals 686 and 687 of the contested decision were initiated by the manager of the applicants responsible for the United Kingdom and Ireland. Also, KLM’s email of 8 June 2005 referred to in recital 692 of that decision shows that the carriers’ responses to the local steps taken by freight forwarders were not made in isolation from one another. Thus, in that email, which concerns the reply to be given to a request from Spedlogswiss, reference is made to discussions in Italy: ‘latest update from our Italian colleagues: all [carriers] stand united against any commission and have informed the ANAMA … accordingly in writing’.

642 It should also be recalled that, since the surcharges were generally applicable ‘on all routes, on a worldwide basis’, it must have been likely for the applicants that the refusal to pay commission was also generally applicable (see paragraphs 222 and 223 above).

643 In those circumstances, the Commission was right to infer from the body of evidence which it gathered that the applicants had the requisite awareness of the worldwide scale of the coordination relating to the refusal to pay commission.

644 It follows that the present plea is unfounded inasmuch as it concerns the worldwide nature of the various elements of the single and continuous infringement.

(b) The activities of a possible ‘core group’

645 It should be observed at the outset that the applicants’ line of argument relating to the distinct nature of the conduct put into effect by a possible ‘core group’ of European carriers which differs from the rest of the incriminated carriers cannot be accepted. It must be stated that the Commission does not identify any such ‘core group’ in the contested decision and, moreover, was in no way required to make a distinction between the incriminated carriers on the basis of the intensity of their participation in the single and continuous infringement, since that circumstance is intended to be taken into consideration only when the gravity of the infringement is assessed and when the fine is determined (see, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C 204/00 P, C 205/00 P, C 211/00 P, C 213/00 P, C 217/00 P and C 219/00 P, EU:C:2004:6, paragraph 86 and the case-law cited). In addition, it is apparent from recitals 878 and 881 of that decision that the Commission found that there was a significant overlap between the undertakings which participated in the various aspects of the infringement in question. The scope of that overlap does not coincide with the alleged ‘core group’ identified by the applicants.

646 At most, the Commission stated, in recital 124 of the contested decision, that Lufthansa ‘state[d] that the core group of contacts that [its pricing manager] had involved principally bilateral mobile phone calls between him and his counterparts at other carriers’ and that he had had ‘approximately 40 telephone calls with each of [British Airways, AF, KLM and Cargolux] in the time period between the beginning of 2003 and the end of 2005’. However, at no time did the Commission endorse Lufthansa’s statements regarding the existence and profile of such a group, nor did it consider that the contacts within it differed from the other contacts at issue.

647 A fortiori, the Commission did not consider that the existence of a possible ‘core group’ fell within the general scope of the cartel at issue or of its essential characteristics within the meaning of the case-law cited in paragraph 617 above.

648 There is nothing in the applicants’ line of argument to show that the Commission vitiated the contested decision by an error by proceeding in this manner. That line of argument is not capable of establishing that the activities of a possible ‘core group’ were separate from the other concerted actions which took place in the context of the cartel at issue, let alone that they fell within the general scope or the essential characteristics of the cartel, within the meaning of the case-law cited in paragraph 617 above.

649 In that regard, it should be observed that the applicants do not claim in the present plea that the concerted actions taken within a possible ‘core group’ concerned a service different from the other contacts at issue or that those contacts did not involve the members of that group or were held through other employees. Nor do they claim that those concerted actions did not relate to the pricing of freight services.

650 The applicants rather claim, in essence, that the concerted actions within the ‘core group’ were conducted in a different manner, pursued different anticompetitive objectives and were more intense than the other contacts at issue. Those arguments are, however, unfounded.

651 First, the claims that ‘extensive contacts at headquarters level between [carriers] that were not commercial partners’, ‘in-person meetings involving senior executives’ or ‘comfort calls’ took place within the ‘core group’ are not sufficient to demonstrate the distinct nature of the concerted actions which allegedly took place in the context of that group.

652 It is true that the existence of possible differences in methods between the various unlawful actions at issue is one of the criteria used in order to assess the links of complementarity between them (see, to that effect, judgment of 27 June 2012, Coats Holdings v Commission, T 439/07, EU:T:2012:320, paragraph 144). However, it is apparent from paragraph 316 above that the existence of links of complementarity between different unlawful actions is not necessary for the purposes of classifying them as a single infringement. A fortiori, nor is it necessary that the same methods be deployed.

653 Moreover, carriers which the applicants do not claim belonged to a possible ‘core group’ were involved in ‘in-person meetings involving senior executives’ or in ‘contacts at headquarters level’, even in the absence of commercial partnerships between them. It is therefore appropriate to cite the ‘coffee meeting’ of 22 January 2001 described in recitals 173 and 174 of the contested decision which took place at Lufthansa Cargo’s premises in Frankfurt (Germany). That meeting, to which Lufthansa’s sales manager for Asia and Australia invited several competitors, including not only AF, British Airways, Cargolux, Lufthansa and KLM, but also Air Canada, CPA, Martinair, SAS and the applicants, concerned, inter alia, the implementation of the FSC. Reference should also be made to the meetings of 5 September 2002 and 13 February 2003 between Air Canada and Lufthansa (recitals 249 and 272 of the contested decision), and meetings between Qantas and British Airways (recital 360 of that decision) or the meeting of the ‘European bosses’ of British Airways, Lufthansa and KLM, in which Martinair also participated (the participation of Cargolux, which was invited, was neither confirmed nor denied) (recital 387 of that decision).

654 Contacts at headquarters level in the absence of commercial partnerships the existence of which is apparent from the contested decision or the parties’ pleadings include a telephone call between British Airways and Martinair in 2002 (recital 224 of the contested decision), a discussion between Lan Cargo and AF at a IATA Cargo Accounts Settlement Systems meeting (recital 352 of that decision), exchanges between Martinair and the applicants and between Martinair and Qantas in May 2004 (recital 360 of that decision), an exchange between Qantas and the applicants (recital 601 of that decision), or the dispatch by Lufthansa in October 2001 of a standard letter regarding the SSC to the CEOs of the cargo divisions of various carriers (see paragraph 637 above).

655 As regards the ‘comfort calls’, it is true that they are referred to as such in the contested decision only as regards the contacts between AF, Cargolux, Lufthansa and KLM (recitals 127, 128, 217, 875, 1165, 1203 and 1327). However, as is apparent from recital 1327 of the contested decision, they were merely ‘[comfort calls] that took place amongst carriers before changes to reassure each other of the timing and level of change’. Those calls ‘were intended to confirm that the competitors would follow their own FSC mechanism’ (recital 128 of the contested decision). However, communications of that type are also to be found among the contacts at issue which took place with carriers outside the possible ‘core group’. By way of illustration, in recital 319 of the contested decision, the Commission cites an internal Lufthansa email of 4 December 2003, which follows on from several exchanges concerning a forthcoming increase in the FSC. In that email, a Lufthansa employee states that he obtained confirmation of the intentions not only of British Airways and Cargolux, but also of Japan Airlines, SAS and another carrier. It is apparent from that recital that that employee had previously made telephone calls to British Airways, SAS and that other carrier. Recital 569 also mentions exchanges of internal emails of 30 and 31 January 2006 in which a Martinair employee reported having spoken to Cargolux, ‘who had confirmed that they would follow KL[M]’.

656 Secondly, contrary to what the applicants maintain in the reply, the existence of a commitment not to depart from the established surcharge policy or of an ‘admitted explicit “understanding” between [the members of the alleged “core group”] covering their full networks in so far as compatible with local conditions’ is in no way specific to that group.

657 This is confirmed by the judgments of the Federal Court of Australia, on which the applicants rely. Those judgments state, admittedly, that between AF, British Airways, Cargolux, Lufthansa and KLM, there was an ‘[FSC] understanding’ which was applicable across their networks ‘except where local conditions in a particular [air]port or in a particular geographic area prevented the imposition, or full imposition, of the [FSC]’. However, the applicants themselves interpret the agreed statement of facts in those judgments as meaning that ‘each of’ AF, British Airways, Cargolux and KLM ‘stated that they were either aware or suspected that [Lufthansa] was involved in similar understandings with other [carriers]’. It follows that those judgments show, at most, that the concerted actions within a possible ‘core group’ were not distinct in nature.

658 As regards the allegedly ‘legitimate’ nature of the WOW or local contacts, which purportedly differ from those within a possible ‘core group’, it is sufficient to note that the applicants’ argument is based on a false premiss. As is apparent from the examination of the third part of the first plea and from the second and third pleas, the contacts at issue within the WOW alliance or at local level cannot be classified as legitimate.

659 Similarly, in recital 492 of the contested decision, reference is made to an email from Aviainform of 22 July 2005 (see paragraph 585 above). In its email, Aviainform criticised that advertisement and its publication on the infowarding.com website. Aviainform thus stated that that advertisement exerted ‘unnecessary additional pressure, which would be particularly reflected in the current yield situation’. It also criticised the lack of thought as to the effect on the market of statements such as those contained in the advertisement in question.

660 An expectation that discipline would be observed on the market also existed in relation to the applicants. Thus, in recital 223 of the contested decision, the Commission refers to an internal email of 3 April 2002, in which a Lufthansa employee complains about the applicants’ refusal to introduce the FSC even though they are members of the Wow alliance.

661 Also, as the applicants explain in the application, it is their failure to follow the adjustments made to Lufthansa’s FSC in Italy that explains why Lufthansa sent them the email of 3 April 2005 described in recital 456 of the contested decision. That email is worded as follows:

‘today I am com[ing] back to you with a concern we have in Italy.

I heard from our colleagues that [the applicants are] charging only 0.20 Euro. Is this really the case? I thought you were usually following the national or major carriers. All the other carriers as well as [Lufthansa Cargo] are charging more (0.40) Did you know about this and is such a large difference intended?’

662 The applicants having replied that that was due to the fact that their main competitors in Italy had not revised their surcharges, Lufthansa sent them the amount of the FSC (between EUR 0.35 and EUR 0.40) of several Asian carriers in Italy, including CPA and Japan Airlines.

663 Thirdly, the fact that the contacts between the members of a possible ‘core group’ accounted for a significant proportion of the contacts at issue is not, on its own, capable of meaning that that group was of a distinct nature. At most, it demonstrates the extent of the body of evidence which the Commission gathered against those carriers. That extent is not, in itself, moreover surprising, since the alleged ‘core group’ brought together five major carriers established in the European Union serving all the types of routes falling within the scope of the single and continuous infringement (AF, British Airways, Cargolux, KLM and Lufthansa).

664 Since the applicants have failed to demonstrate that the Commission erred in the contested decision by not identifying a ‘core group’ which fell within the general scope and the essential characteristics of the cartel at issue, the line of argument that the applicants were not aware of the activities of such a group must be rejected as ineffective.

665 It follows that the present plea in law must be rejected and, accordingly, the claim for annulment must be dismissed in its entirety.

B. The claim for alteration of the amount of the fine imposed on the applicants

666 In support of their claim for a reduction in the amount of the fine imposed on them, the applicants put forward a single plea in law. That plea is subdivided into four arguments.

667 The first and second arguments relied on by the applicants in support of this claim concern the calculation of the value of sales:

– by their first argument, in response to the Court’s measures of organisation of procedure, the applicants claim that their revenue from freight services on non-EU EEA third country routes cannot be included in the value of sales;

– by their second argument, the applicants claim that their turnover from inbound freight services cannot be included in the value of sales, since the sales at issue were made outside the EEA.

668 The third and fourth arguments relied on by the applicants in support of this claim relate, in essence, to the gravity factor and the additional amount:

– by the third argument, the applicants claim that their actual participation was very limited in terms of geographic scope, in particular in relation to the ‘core group’ carriers;

– by their fourth argument, the applicants claim that the Commission should have distinguished between contacts in the context of a legitimate efficiency-enhancing alliance (such as the WOW alliance) and contacts between senior executives at direct competitors whose only reason for being in contact was to collude (such as the contacts which took place within the ‘core group’), since the applicants’ participation in the single and continuous infringement was based, beyond a limited number of local markets, principally on the WOW contacts.

669 The Commission contends that the applicants’ claims should be rejected and requests that the benefit of the general 50% reduction and the general 15% reduction be withdrawn from them, should the Court find that the turnover from the sale of inbound freight services could not be included in the value of sales.

670 In EU competition law, the review of legality is supplemented by the unlimited jurisdiction which the Courts of the European Union are afforded by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the Courts of the European Union, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the amount of the fine or penalty payment imposed (see judgment of 8 December 2011, Chalkor v Commission, C 386/10 P, EU:C:2011:815, paragraph 63 and the case-law cited).

671 That exercise involves, in accordance with Article 23(3) of Regulation No 1/2003, taking into consideration, with respect to each undertaking sanctioned, the seriousness and duration of the infringement at issue, in compliance with the principles of, inter alia, adequate reasoning, proportionality, the individualisation of penalties and equal treatment, and without the Courts of the European Union being bound by the indicative rules defined by the Commission in its guidelines (see, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission, C 603/13 P, EU:C:2016:38, paragraph 90). It must, however, be pointed out that the exercise of unlimited jurisdiction provided for in Article 261 TFEU and Article 31 of Regulation No 1/2003 does not amount to a review of the Court’s own motion, and that proceedings before the Courts of the European Union are inter partes. With the exception of pleas involving matters of public policy which the Courts are required to raise of their own motion, it is therefore for the applicant to raise pleas in law against the decision at issue and to adduce evidence in support of those pleas (judgment of 8 December 2011, Chalkor v Commission, C 386/10 P, EU:C:2011:815, paragraph 64).

672 It is thus for the applicant to identify the impugned elements of the contested decision, to formulate grounds of challenge in that regard and to adduce evidence – direct or circumstantial – to demonstrate that its objections are well founded (judgment of 8 December 2011, Chalkor v Commission, C 386/10 P, EU:C:2011:815, paragraph 65).

673 In order to satisfy the requirements of Article 47 of the Charter when conducting a review in the exercise of their unlimited jurisdiction with regard to the fine, the Courts of the European Union are, for their part, bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement (see judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C 434/13 P, EU:C:2014:2456, paragraph 75 and the case-law cited; judgment of 26 January 2017, Villeroy & Boch Austria v Commission, C 626/13 P, EU:C:2017:54, paragraph 82).

674 Lastly, in order to determine the amount of the fine, it is for the Courts of the European Union to assess for themselves the circumstances of the case and the nature of the infringement in question (judgment of 21 January 2016, Galp Energía España and Others v Commission, C 603/13 P, EU:C:2016:38, paragraph 89) and to take into account all of the factual circumstances (see, to that effect, judgment of 3 September 2009, Prym and Prym Consumer v Commission, C 534/07 P, EU:C:2009:505, paragraph 86), including, where appropriate, additional information which is not mentioned in the Commission decision imposing the fine (see, to that effect, judgments of 16 November 2000, Stora Kopparbergs Bergslags v Commission, C 286/98 P, EU:C:2000:630, paragraph 57, and of 12 July 2011, Fuji Electric v Commission, T 132/07, EU:T:2011:344, paragraph 209).

675 In the present case, it is for the Court, in the exercise of its unlimited jurisdiction, to determine, in the light of the arguments put forward by the parties in support of this claim, the amount of the fine which it considers most appropriate, having regard in particular to the findings made when examining the pleas raised in support of the claim for annulment and the plea raised of the Court’s own motion, and taking into account all the relevant factual circumstances.

676 The Court considers that it is not appropriate, in order to determine the amount of the fine to be imposed on the applicants, to depart from the method of calculation followed by the Commission in the contested decision, which it has not previously determined to be vitiated by illegality. Although it is for the Court, in the exercise of its unlimited jurisdiction, to assess for itself the circumstances of the case and the nature of the infringement in question in order to determine the amount of the fine, the exercise of unlimited jurisdiction cannot result, when the amount of the fines to be imposed is determined, in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 101(1) TFEU, Article 53 of the EEA Agreement and Article 8 of the EC Switzerland Air Transport Agreement. Accordingly, the guidance which can be drawn from the Guidelines is, as a general rule, capable of guiding the Courts of the European Union in their exercise of that jurisdiction where the Commission has applied those guidelines for the purposes of calculating the fines imposed on the other undertakings penalised by the decision which those Courts are asked to examine (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C 441/11 P, EU:C:2012:778, paragraph 80 and the case-law cited).

677 In those circumstances, first of all, it must be observed that the total value of sales in 2005 was EUR 405 742 234. Contrary to what the applicants claim in the context of the first argument relied on in support of this claim, only revenues generated on non-EU EEA Switzerland routes, which the Court held in paragraphs 179 to 204 above did not fall within the scope of the single and continuous infringement, must be excluded from the total value of sales in the event that they were inadvertently included in that value. The applicants do not provide any information regarding the amount of those revenues. The Court shares the Commission’s view that the revenues generated by the applicants on EU Switzerland routes, amounting to EUR 22 272, constitute, in the present case, a reasonable approximation of those revenues, it being understood that, in any event, because of the rounding down of the basic amount of the fine in paragraph 708 above, the exclusion of those revenues from the value of sales has no effect on the final amount of the fine.

678 As regards the second argument, which concerns the inclusion in the value of sales of turnover from the sale of inbound freight services, it must be observed that the applicants rely, in essence, on point 13 of the 2006 Guidelines.

679 In that regard, it should be borne in mind that point 13 of the 2006 Guidelines makes the inclusion in the value of sales of turnover from the goods or services of the undertaking concerned subject to the condition that the sales in question are ‘goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA’.

680 Point 13 of the 2006 Guidelines does not thus refer to ‘sales negotiated’ or ‘sales invoiced’ within the EEA, but refers only to ‘sales’ in the EEA. It follows that, contrary to what the applicants maintain, that point does not preclude the Commission from using sales to customers established outside the EEA, or require account to be taken of sales negotiated or invoiced in the EEA. Otherwise, an undertaking participating in an infringement would merely have to ensure that it negotiates its sales with subsidiaries of its customers located outside the EEA or bill them for those sales in order to ensure that those sales would not be taken into account in the calculation of the amount of a potential fine, which would therefore be much smaller (see, to that effect, judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission, C 615/15 P, not published, EU:C:2017:190, paragraph 55).

681 The concept of ‘sales … within the EEA’ must be interpreted in the light of the objective of point 13 of the 2006 Guidelines. That objective is to adopt as the starting point for the calculation of fines an amount which reflects, inter alia, the economic significance of the infringement on the relevant market, while the turnover achieved on the goods or services in respect of which the infringement was committed constitutes an objective criterion giving a proper measure of the harm which that infringement does to normal competition (see judgment of 28 June 2016, Portugal Telecom v Commission, T 208/13, EU:T:2016:368, paragraph 236 and the case-law cited).

682 It is thus for the Commission, for the purposes of determining whether sales were made ‘within the EEA’, within the meaning of point 13 of the 2006 Guidelines, to opt for a criterion which reflects the reality of the market, that is to say, which is the best for ascertaining the effects of the cartel on competition in the EEA.

683 In recitals 1186 and 1197 of the contested decision, the Commission stated that, in calculating the value of sales, it had taken into account the turnover from the sale of freight services on intra-EEA routes, EU third country routes, EU Switzerland routes and non-EU EEA third country routes. As is apparent from recital 1194 of that decision, the sales related to EU third country routes and non-EU EEA third country routes included both sales of freight services on outbound routes and sales of inbound freight services.

684 In recital 1194 of the contested decision, in order to justify the inclusion of turnover from the sale of those services in the value of sales, the Commission referred to the need to take account of their ‘specificities’. It thus observed, inter alia, that the single and continuous infringement related to those services and that the ‘anticompetitive arrangements [were] likely to have a negative impact on the internal market in respect of both [of them]’.

685 As is apparent from paragraphs 90 to 178 above and contrary to what the applicants maintain, it was foreseeable that the single and continuous infringement, including in so far as it related to inbound routes, would produce substantial and immediate effects in the internal market or within the EEA and was thus liable to harm normal competition within the EEA. In recitals 1194 and 1241 of the contested decision, the Commission nevertheless acknowledged that part of the ‘harm’ resulting from the conduct at issue in respect of EEA third country routes was likely to fall outside the EEA. It also stated that part of those services were provided outside the EEA. It therefore relied on point 37 of the 2006 Guidelines and granted the incriminated carriers a reduction of 50% in the basic amount of the fine in respect of EEA-third country routes, the merits of which the applicants do not dispute.

686 In those circumstances, to hold that 50% of the turnover achieved on those routes could not be included in the value of sales would amount to preventing account being taken, for the purposes of calculating the amount of the fine, of sales which fall within the scope of the single and continuous infringement and which were liable to harm competition within the EEA.

687 It follows that 50% of the turnover on EEA third country routes could be used as an objective criterion giving a proper measure of the harm which the applicants’ participation in the cartel at issue did to normal competition, provided that it resulted from sales having a link with the EEA (see, to that effect, judgment of 27 February 2014, InnoLux v Commission, T 91/11, EU:T:2014:92, paragraph 47).

688 Such a link exists in the present case as regards inbound routes, since, as is apparent from recitals 1194 and 1241 of the contested decision and as the Commission maintains in its written pleadings, inbound freight services are provided in part within the EEA. As was stated in paragraph 124 above, those services are intended precisely to enable the transport of goods from third countries to the EEA. Part of their ‘physical’ service is by definition carried out in the EEA, where part of the transport of those goods takes place and where the cargo plane lands.

689 In those circumstances, it must be held, as the Commission claims, that sales of inbound freight services had been made within the EEA within the meaning of point 13 of the 2006 Guidelines.

690 Sales of inbound freight services must therefore be included in the value of sales.

691 Moreover, nothing in the applicants’ arguments makes it possible to consider that the inclusion in the value of sales of turnover from the sale of inbound freight services was such as to result in an inappropriate value of sales being used. On the contrary, excluding that turnover from the value of sales would prevent a fine being imposed on the applicants which was a proper measure of the harm which the applicants’ participation in the cartel at issue did to normal competition (see paragraph 681 above).

692 Next, it must be held that, for the reasons set out in recitals 1198 to 1212 of the contested decision, the single and continuous infringement merits a gravity factor of 16%.

693 In so far as, in the context of the third argument, the applicants submit that the geographically limited nature of their actual participation in the single and continuous infringement was not taken into account in relation to the ‘core group’ carriers, the following should be noted. It is true that, as the applicants observe, the fact that an undertaking has not taken part in all aspects of a cartel or that it played only a minor role in the aspects in which it did participate must be taken into consideration when the gravity of the infringement is assessed and if and when it comes to determining the fine (judgment of 8 July 1999, Commission v Anic Partecipazioni, C 49/92 P, EU:C:1999:356, paragraph 90).

694 However, it should be borne in mind that the taking into account of differences between the undertakings that have participated in a single cartel need not necessarily occur when the gravity factor is set but may occur at another stage in the setting of the fine, such as when the basic amount of the fine is adjusted in the light of mitigating and aggravating circumstances under points 28 and 29 of the 2006 Guidelines (see, to that effect, judgment of 26 January 2017, Roca v Commission, C 638/13 P, EU:C:2017:53, paragraph 67 and the case-law cited).

695 Such differences may also be reflected by means of the value of sales that is used in calculating the basic amount of the fine inasmuch as that value reflects, for each participating undertaking, the scale of its involvement in the infringement in question, in accordance with point 13 of the 2006 Guidelines (see judgment of 26 January 2017, Roca v Commission, C 638/13 P, EU:C:2017:53, paragraph 68 and the case-law cited).

696 In the present case, it must be held that, by the method which the Commission used to calculate the amount of the fine imposed on the applicants, the applicants have already largely avoided the imposition of a fine on the basis of their liability for the single and continuous infringement in so far as it concerns intra-EEA routes and EU Switzerland routes. In the light of the turnover achieved by the applicants on those routes and taking account of that method consisting of allocating, to each category of routes concerned, a specific value of sales calculated on the basis of the turnover achieved by the undertaking on that category of routes (see recital 1197 of the contested decision), the value of sales used, respectively, for intra-EEA routes and for EU Switzerland routes is, so far as the applicants are concerned (EUR 48 638, or 0.01% of the total value of sales used in the contested decision), considerably lower than that used by the Commission on those routes for the incriminated carriers which allegedly belonged to the ‘core group’.

697 It follows that the differences relating to the geographic scope of the participation of the various incriminated carriers in the single and continuous infringement are reflected by means of the value of sales that is used to calculate the basic amount of the fine imposed on them. The Commission therefore took into account the geographically limited degree of the applicants’ actual participation in the single and continuous infringement in relation to the alleged ‘core group’ in the determination of the value of sales.

698 Since the applicants have not explained why it was inappropriate to proceed in that manner, it must be held that they cannot reasonably complain that the Commission failed to take into account the differences between the geographic scope of their actual participation in the single and continuous infringement and that of the alleged ‘core group’.

699 As regards the additional amount, it must be borne in mind that, according to point 25 of the 2006 Guidelines, irrespective of the duration of an undertaking’s participation in the infringement, the Commission includes in the basic amount a sum of between 15 and 25% of the value of sales, in order to deter undertakings from entering into horizontal price-fixing, market-sharing and output-limitation agreements. That point states that, for the purpose of deciding the proportion of the value of sales to be considered in a given case, the Commission will have regard to a number of factors, in particular those referred in point 22 of the 2006 Guidelines. Those factors are the same as those which the Commission takes into account for the purpose of setting the gravity factor and include the nature of the infringement, the combined market share of all the parties concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.

700 The Courts of the European Union have inferred from this that, even if the Commission does not set out a specific statement of reasons as regards the proportion of the value of sales used as the additional amount, the mere reference to the analysis of the factors used in order to assess the gravity of the infringement suffices in that respect (judgment of 15 July 2015, SLM and Ori Martin v Commission, T 389/10 and T 419/10, EU:T:2015:513, paragraph 264).

701 In recital 1219 of the contested decision, the Commission found that the ‘percentage to be applied for the additional amount should be 16%’ given the ‘specific circumstances of the case’ and the criteria used to determine the gravity factor.

702 It follows that, on the same grounds as those set out in recitals 1198 to 1212 of the contested decision, the Court finds that an additional amount of 16% is appropriate.

703 The fourth argument cannot justify a further reduction of the gravity factor and the additional amount. That argument is based on the premiss that the WOW contacts were more legitimate than other contacts at issue. It is apparent from the examination of the third plea above that that premiss is incorrect.

704 Furthermore, if the applicants’ line of argument must be understood as meaning that the holding of meetings or discussions in the context of a legitimate alliance is such as to affect its legality under Article 101 TFEU or its gravity for the purposes of determining the amount of the fine, it must be held that the applicants are mistaken. It should be borne in mind that, according to their very wording, Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC Switzerland Air Transport Agreement apply to agreements between undertakings, concerted practices and decisions by associations of undertakings. The legal framework within which such agreements are concluded, such concerted practices manifest themselves and such decisions are taken are irrelevant as far as the applicability of those provisions are concerned (see, to that effect, judgment of 19 February 2002, Wouters and Others, C 309/99, EU:C:2002:98, paragraph 66).

705 Moreover, given that the duration of the applicants’ participation in the single and continuous infringement amounts to four years and seven months (SAC) and six years and one month (SIA) on intra-EEA routes, one year and nine months on EU third country routes, three years and eight months on EU Switzerland routes and eight months on non-EU EEA third country routes, it is appropriate to apply multipliers of 4 7/12 (SAC) and 6 1/12 (SIA), 1 9/12, 3 8/12 and 8/12 respectively.

706 The basic amount of the fine must therefore be set at EUR 177 443 007, in the case of SIA, and at EUR 177 436 659, in the case of SAC.

707 As regards the general 50% reduction, the Commission’s claim that the benefit of that reduction should be withdrawn from the applicants cannot be upheld. As is apparent from the Commission’s replies to the Court’s measures of organisation of procedure, that claim assumes that the Court holds that the turnover from the sale of inbound freight services could not be included in the value of sales. The Court refused to do so in paragraphs 678 to 690 above.

708 Therefore, after application of the general 50% reduction, which applies only to the basic amount in so far as it concerns non-EU EEA third country routes and EU third country routes (see recital 1241 of the contested decision), which the applicants have not disputed and which is not inappropriate, the basic amount of the fine must be set at EUR 88 000 000 for both SAC and SIA after rounding down. In that regard, the Court considers it appropriate to round that basic amount down to the first two digits, unless this leads to a reduction of more than 2% of the amount before rounding, in which case that amount is rounded down to the first three digits. That method is objective, affords all the carriers at issue which have brought an action against the contested decision the benefit of a reduction and avoids unequal treatment (see, to that effect, judgment of 27 February 2014, InnoLux v Commission, T 91/11, EU:T:2014:92, paragraph 166).

709 Lastly, as regards the adjustments to the basic amount of the fine, it should be recalled that the applicants benefited from the general 15% reduction, the appropriateness of which they do not dispute. Conversely, the Commission’s request that the benefit of that reduction be withdrawn from the applicants cannot be upheld, for reasons similar to those set out in paragraph 707 above.

710 Furthermore, although the Court has held that a number of contacts should be excluded from the body of evidence used against the applicants, the body of evidence is still sufficient, in particular as regards the contacts within the WOW alliance, for it to remain appropriate to refuse them a reduction on account of their limited participation in the single and continuous infringement.

711 It follows that the final amount of the fine to be imposed on the applicants jointly and severally is EUR 74 800 000.

712 Since the amount of the fine imposed by the Commission in the contested decision is identical to that set by the Court in the exercise of its unlimited jurisdiction, it is not therefore necessary to alter the amount of the fine set by the Commission in Article 3(s) of the contested decision. Consequently, the claim for alteration of the amount of the fine imposed on the applicants must be rejected.

IV. Costs

713 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

714 Under Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his or her own, or even that he or she is not to be ordered to pay any. Furthermore, under Article 135(2) of those rules, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if that party has made the opposite party incur costs which the Court holds to be unreasonable or vexatious.

715 In the present case, the applicants have been unsuccessful and the Commission has expressly applied for costs. However, the Court considers that the circumstances of the case justify ordering the Commission to bear one third of its own costs and the applicants to bear their own costs and pay two thirds of those incurred by the Commission.

On those grounds,

THE GENERAL COURT (Fourth Chamber, Extended Composition)

hereby:

1. Dismisses the action;

2. Orders the European Commission to bear one third of its own costs;

3. Orders Singapore Airlines and Singapore Airlines Cargo to bear their own costs and pay two thirds of those incurred by the Commission.