GC, 4th chamber, extended composition, March 30, 2022, No T-326/17

JUDGMENT (Fourth Chamber, Extended Composition)

I. Background to the dispute

1 The applicant, Air Canada, is an air transport company active on the market for airfreight (‘freight’) services.

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’), Singapore Airlines Cargo Pte Ltd (‘SAC’) 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; ‘the 2002 Leniency Notice’) 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, inter alia, 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, including the applicant, made an application under the 2002 Leniency Notice.

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 applicant (‘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:

– the applicant;

– 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;

– Singapore Airlines Ltd (‘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 applicant, 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:

a) [the applicant] 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:

a) [the applicant] 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:

a) [the applicant]: EUR 21 037 500;

…

Article 6

The undertakings listed in Articles 1 to 4 shall immediately bring to an end the infringements referred to in those Articles, insofar as they have not already done so.

They shall refrain from repeating any act or conduct described in Articles 1 to 4, and from any act or conduct having the same or similar object or effect.’

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

15 By application lodged at the Court Registry on 6 January 2011, the applicant brought an action seeking, in essence, first, annulment of the Decision of 9 November 2010 in so far as that decision concerned it, and, in the alternative, annulment of those parts of that decision which concerned it, and, secondly, annulment of the fine imposed on it or, in the alternative, a reduction in the amount of the fine, if necessary to zero. 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, the applicant, KLM, Japan Airlines and Japan Airlines Corp., CPA, Cargolux, Latam Airlines Group SA (formerly Lan Airlines) and Lan Cargo, SAC and SIA, 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 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 applicant’s 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 applicant 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. Second, it held that the applicant had not been able to understand the line of reasoning that had led the Commission to find it 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 paragraph 21 above were invited to make known their views on the intended decision of the Commission’s DG for Competition within one month. All recipients, including the applicant, 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:

– the applicant;

– 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) Anti-competitive 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 Second, 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 [other] issues, their plans whether or not to introduce [an] 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 [to pay] 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 applicant is set out in recitals 717 to 720 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), were of 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 882 of the contested decision, the Commission added that the applicant was involved in two of the three elements of the single infringement, namely the FSC and the SSC, but that, on the one hand, ‘given [its] involvement in the other elements of the infringement, [it] could have reasonably foreseen exchanges between the parties on such a related matter as commissioning on surcharges, and [was] prepared to take the risk’, and, on the other, ‘there [was] also evidence that [the applicant] was aware of the discussions on commissioning on surcharges’.

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. The Commission 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, the Commission 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. The Commission 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 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.

42 Seventh, 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.

43 Eighth, 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’.

44 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 exceeded 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).’

45 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 [refusal to pay] 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)] 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.’

46 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.

47 In so far as the applicant is concerned, the Commission found that the duration of the infringement was from 21 September 2000 to 14 February 2006.

48 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.

49 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’).

50 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’).

51 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.

52 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%.

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

– in so far as concerns intra-EEA routes, from 21 September 2000 to 14 February 2006, equating to five years and four months and giving rise to a multiplier of 54⁄12;

– in so far as concerns EU-third country routes, from 1 May 2004 to 14 February 2006, equating to one year and nine months and giving rise to a multiplier of 19⁄12;

– in so far as concerns EU-Switzerland routes, from 1 June 2002 to 14 February 2006, equating to three years and eight months and giving rise to a multiplier of 38⁄12;

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

54 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 52 above, the additional amount should be set at 16% of the value of sales.

55 Consequently, in recitals 1240 to 1242 of the contested decision, the basic amount to be imposed on the applicant was assessed at EUR 66 000 000 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 33 000 000.

56 In recitals 1258 and 1259 of the contested decision, in accordance with point 29 of the 2006 Guidelines, on the ground that the applicant’s participation in the single and continuous infringement had been limited, the Commission granted it a reduction of 10% in the basic amount of the fine by way of mitigating circumstances.

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 applicant’s fine, after adjustment, at EUR 24 750 000.

59 In recitals 1382 to 1389 of the contested decision, the Commission took into account the applicant’s contribution in the context of its leniency application and applied a reduction of 15% to the amount of the fine, with the result that, as stated in recital 1404 of the contested decision, the amount of the fine imposed on the applicant was set at EUR 21 037 500.

60 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:

(a) [the applicant] from 21 September 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:

(a) [the applicant] 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:

(a) [the applicant] 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:

(a) [the applicant] from 1 June 2002 until 14 February 2006;

…

Article 2

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

In Article 5, points (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:

(a) [the applicant]: EUR 21 037 500;

…

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 applicant]

…’

II. Procedure and forms of order sought

61 By application lodged at the Court Registry on 29 May 2017, the applicant brought the present action.

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

63 The applicant lodged its reply at the Court Registry on 4 December 2017.

64 The Commission lodged its rejoinder at the Court Registry on 1 March 2018.

65 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.

66 On 4 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.

67 At the hearing on 19 June 2019, the parties presented oral argument and answered the questions put by the Court.

68 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.

69 The Commission replied within the prescribed period to a series of questions put by the Court on 4 August 2020. The applicant did not lodge any answers to the questions within the prescribed period.

70 By decision of 15 September 2020, the Court again closed the oral part of the procedure.

71 By order of 18 December 2020, the Court (Fourth Chamber, Extended Composition), considering again that it was necessary to invite the parties to submit their observations on 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.

72 The applicant replied within the prescribed period to the series of questions put by the Court on 4 August 2020. Then, at the request of the Court, the parties submitted observations on their respective answers to those questions.

73 By decision of 25 May 2021, the Court again closed the oral part of the procedure.

74 The applicant claims that the Court should:

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

– cancel the fine or, in the alternative, substantially reduce it;

– order the Commission to pay the costs.

75 The Commission contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

III. Law

76 In its action, the applicant puts forward both a claim for annulment of the contested decision and a claim for cancellation of the fine imposed on it or a reduction in the amount of that fine.

A. The claim for annulment

77 The applicant puts forward five pleas in law in support of its claim for annulment. Those pleas allege:

– first, infringement of the rights of the defence, of the right to be heard and of essential procedural requirements relating to the Commission’s failure to send a new statement of objections to the incriminated carriers;

– second, infringement of the rights of the defence, failure to state reasons and infringement of essential procedural requirements as regards the scope of the single and continuous infringement;

– third, in essence, manifest errors of assessment and of law in imputing to the applicant liability for the single and continuous infringement in so far as it concerns intra-EEA routes and EU-Switzerland routes;

– fourth, a lack of jurisdiction on the part of the Commission to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes as well as on EU-third country routes before 1 May 2004 and on non-EU EEA-third country routes before 19 May 2005; and

– fifth, a manifest error of assessment of the evidence on which the contested decision was based in order to impute to the applicant liability for the single and continuous infringement.

78 The Court considers it appropriate to examine, first of all, the first, second and fourth pleas in turn; in the second place, the plea raised of its own motion, alleging that the Commission lacked 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 third and fifth pleas.

1. The first plea, alleging infringement of the rights of the defence, of the right to be heard and of essential procedural requirements as regards the Commission’s failure to send a new statement of objections to the incriminated carriers

79 The applicant claims that it was denied the opportunity to defend itself with regard to essential aspects of the contested decision, entailing an infringement of its right to be heard, inasmuch as the aspects in question were not apparent from the Statement of Objections. The fact that the Commission failed to adopt a new statement of objections and failed to organise a new hearing constitutes, in those circumstances, an infringement of essential procedural requirements that was not adequately remedied by sending the letter of 20 May 2016.

80 First of all, nothing in the Statement of Objections informed the applicant that the Commission was holding it liable for the single and continuous infringement as regards intra-EEA routes and EU-Switzerland routes by taking 21 September 2000 as the starting point of its participation. In particular, the theory of a ‘global cartel’ constituting a ‘worldwide infringement’ was absent from the Statement of Objections or, if there was any indication to that effect, it was isolated and imprecise.

81 The applicant states, in that regard, that its responses to the Statement of Objections referring to the worldwide scope of the cartel at issue cannot be taken into account, since they were the result of the incorrect and imprecise framing of the Statement of Objections and of incorrect legal advice received at the time. On the other hand, the references in the Statement of Objections to the possibility of the Commission’s finding an infringement in relation to ‘third country routes’ show that it in fact intended to impute to carriers established outside the EEA only the infringing conduct that related to those routes.

82 The applicant submits that, if it had been properly informed of the Commission’s intention, it would have argued that the Commission could not impute that part of the infringement to it. The fact that it did not make that argument, and that none of the other incriminated carriers established outside the EEA did so, demonstrates that the Statement of Objections in no way indicated that the conduct relating to intra-EEA routes and to EU-Switzerland routes would be imputed to it.

83 Next, the applicant complains that the Commission added or amended recitals in the contested decision in relation to the Statement of Objections and to the Decision of 9 November 2010, giving a different scope to the contacts concerning third country routes, in particular in recitals 886 to 890 of the contested decision, with the objective of supporting a finding of a single and continuous infringement committed worldwide.

84 In particular, it was not apparent from the Statement of Objections that the Commission considered that carriers established outside the EEA were able to provide freight services on intra-EEA routes and EU-Switzerland routes, or that the contacts concerning third country routes were capable of forming the basis for a finding of infringement the scope of which went beyond the routes concerned.

85 Lastly, the applicant alleges that the failure to issue a new statement of objections also deprived it of the opportunity to respond to other critical issues such as the consequences of the withdrawal of its leniency application and the irrational continuing of the procedure against it while the complaints against the majority of the addressees of the Statement of Objections established outside of the EEA were abandoned.

86 The Commission disputes the applicant’s line of argument.

87 As a preliminary point, it should be noted that the present plea, although structured around three complaints, is based on the allegation that the applicant was not put in a position during the administrative procedure to submit its arguments against essential aspects of the contested decision which did not appear in the Statement of Objections.

88 In that regard, it should be recalled that the statement of objections constitutes the procedural safeguard applying the fundamental principle of EU law which requires observance of the rights of the defence in all proceedings (judgment of 3 September 2009, Papierfabrik August Koehler and Others v Commission, C‑322/07 P, C‑327/07 P and C‑338/07 P, EU:C:2009:500, paragraph 35).

89 That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it (judgment of 3 September 2009, Papierfabrik August Koehler and Others v Commission, C‑322/07 P, C‑327/07 P and C‑338/07 P, EU:C:2009:500, paragraph 36).

90 Article 27(1) of Regulation No 1/2003 and Article 11(2) of Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18), which apply that principle, require the Commission, in its final decision, to deal only with objections in respect of which the undertakings and associations of undertakings concerned have been afforded the opportunity of making known their views.

91 Account must be taken at the same time of the provisional nature of the statement of objections, which means that the existence of differences between that document and the final decision is not only possible but lawful, in so far as the final decision reflects all the evidence produced and discussed during the administrative procedure, including after the statement of objections has been sent (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 67).

92 It is only if the final decision alleges that the undertakings concerned have committed infringements other than those referred to in the statement of objections or takes into consideration different facts that there will be an infringement of the rights of the defence (see judgment of 14 March 2013, Fresh Del Monte Produce v Commission, T‑587/08, EU:T:2013:129, paragraph 706 and the case-law cited). According to the case-law, that is not the case where the alleged differences between the statement of objections and the final decision do not concern any conduct other than that in respect of which the undertakings concerned have already submitted observations and are therefore unrelated to any new objection (judgment of 29 March 2012, Telefónica and Telefónica de España v Commission, T‑336/07, EU:T:2012:172, paragraphs 84 and 85).

93 In the present case, the Commission concluded, in Article 1 of the contested decision, that the incriminated carriers, by coordinating their pricing behaviour in the provision of freight services on a global basis with respect to the FSC, the SSC and the refusal to pay commission, participated in the single and continuous infringement on all the categories of routes referred to in paragraphs 1 to 4 of that article. Those categories are intra-EEA routes (paragraph 1), EU-third country routes (paragraph 2), non-EU EEA-third country routes (paragraph 3) and EU-Switzerland routes (paragraph 4).

94 As stated in paragraph 46 above, the period during which the single and continuous infringement was found to have been committed varies according to the routes concerned:

– from 7 December 1999 to 14 February 2006, as regards intra-EEA routes;

– from 1 May 2004 to 14 February 2006, as regards EU-third country routes;

– from 19 May 2005 to 14 February 2006, as regards non-EU EEA-third country routes;

– from 1 June 2002 to 14 February 2006, as regards EU-Switzerland routes.

95 As recalled in paragraph 47 above, the Commission found that the applicant’s participation in the single and continuous infringement ran from 21 September 2000 to 14 February 2006.

96 For its part, the Statement of Objections stated, first of all, in paragraph 3:

‘The addressees … participated in a single and continuous infringement … by which they coordinated their pricing behaviour in the provision of [freight] services on a global basis with respect to various surcharges … and the payment of commission payable on surcharges, in particular … the [FSC]; the [SSC] … and the [refusal to pay commission]’.

97 That assertion is repeated, in essence, in paragraph 1409 of the Statement of Objections.

98 Similarly, paragraph 125 of the Statement of Objections stated that ‘the co-ordinated application of the [FSC] had the objective of ensuring that air freight carriers throughout the world imposed a flat rate surcharge per kilo for all relevant shipments. … This coordinated approach was extended to the [SSC and others]. Furthermore, the [carriers] coordinated their refusal to pay a commission on the surcharges …’.

99 Next, the Commission summarised, in paragraph 1106 of the Statement of Objections, the content of the contacts relied on against the applicant, stating that they ran from 10 January 2000 until 14 February 2006, while concluding, in paragraph 1107, that the applicant was involved in at least the elements relating to the FSC, the SSC and the refusal to pay commission.

100 The Statement of Objections further stated that ‘all the anti-competitive activities involving each of the participants [fitted] within an overall aim’ (paragraph 1430) and that ‘it would be artificial to split up such continuous inter-related conduct, characterised by a single purpose, by treating it as consisting of several separate infringements’ (paragraph 1432).

101 In the Statement of Objections, the Commission found that there was a single and continuous infringement over a period from 7 December 1999 until 14 February 2006 (paragraph 1564) and stated that it intended to find that the applicant participated in that infringement from 10 January 2000 (paragraphs 1464 and 1564).

102 As regards, specifically, EU-third country routes, non-EU EEA-third country routes and EU-Switzerland routes, it is apparent from paragraphs 1388, 1392, 1395, 1577 and 1578 of the Statement of Objections that the Commission considered, in essence, that it had jurisdiction to find that there was a single and continuous infringement on the first two categories of routes for the whole of the infringement period and, as regards the last category of routes, from 1 June 2002. At the same time, the Commission considered that it had jurisdiction to impose a fine on that basis only from 1 May 2004 in respect of EU-third country routes, 19 May 2005 in respect of non-EU EEA-third country routes and 1 June 2002 in respect of EU-Switzerland routes.

103 As regards intra-EEA routes, it is apparent from paragraphs 1389, 1393, 1568 and 1569 of the Statement of Objections that the Commission considered that it had jurisdiction both to find and to penalise the single and continuous infringement committed on those routes for the whole of the infringement period.

104 Lastly, in paragraph 1582 of the Statement of Objections, the Commission stated that it ‘therefore envisage[d] issuing a decision … finding that the undertakings which are the addressees of the present Statement of Objections have infringed Article [101 TFEU,] Article 53 of the EEA Agreement and Article 8 of the [EC-Switzerland Air Transport] Agreement’.

105 It follows from the foregoing that the applicant’s line of argument in support of the present plea must be rejected.

106 First, contrary to what the applicant claims, the factual finding of the existence of a ‘global cartel’ as set out in Article 1 of the contested decision did indeed appear in the Statement of Objections, as is apparent from paragraphs 96 to 98 above.

107 As the Commission correctly submits, the applicant’s responses to the Statement of Objections, which refer on several occasions to the allegations of participation in a global cartel, constitute further evidence that the scope of the cartel referred to in that statement was set out in a manner sufficient to enable the applicant to submit arguments in that regard during the administrative procedure. The applicant does not explain how it was misled in that regard by that statement.

108 Second, it follows from the foregoing that, at the stage of the Statement of Objections, all of the incriminated carriers were found to have participated in the single and continuous infringement on the four categories of routes referred to in Article 1 of the contested decision.

109 In that regard, the applicant’s assertion that the Commission, by referring in the Statement of Objections to its jurisdiction to find an infringement on EU-third country routes, manifested its intention not to find carriers established outside the EEA liable for aspects of the single and continuous infringement relating to intra-EEA routes and EU-Switzerland routes is in no way substantiated.

110 As regards the line of argument based on an alleged lack of reference in the Statement of Objections to a ‘worldwide infringement’, it must be rejected as ineffective, since, contrary to what the applicant claims, the contested decision does not make such a finding, as is apparent from paragraphs 131 to 136 below.

111 Third, although the starting date of the applicant’s participation in the single and continuous infringement differs, in the contested decision, from that used in the Statement of Objections, it differs in the sense of a reduction in the duration of the applicant’s participation in that infringement, inasmuch as the date finally used is later. It must be observed that that reduction was in the applicant’s interest, since it resulted in the partial abandonment of an objection relied on against it. Accordingly, respect for the rights of the defence did not require that the applicant be put in a position to submit its observations in that regard (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 193).

112 It follows that the applicant errs in asserting that it was not put in a position during the administrative procedure to submit its arguments against essential aspects of the contested decision which did not appear in the Statement of Objections.

113 None of the other arguments put forward by the applicant is capable of calling into question the foregoing conclusions.

114 First of all, the applicant’s argument that, in essence, the facts and evidence concerning third country routes from before the dates on which the Commission acquired jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to the conduct found on EU-third country routes and non-EU EEA-third country routes were used in the contested decision for a purpose different from that for which they were used in the Statement of Objections, must be rejected. The applicant argues that those contacts were thus relied on in the contested decision to establish its participation in a global cartel and in the single and continuous infringement on all categories of routes, whereas, in the Statement of Objections, they were used exclusively to establish the existence of an infringement on EEA-third country routes.

115 In so arguing, the applicant starts from the premiss that the Statement of Objections concerned neither a global cartel nor a single and continuous infringement on intra-EEA routes and EU-Switzerland routes in respect of which liability could have been imputed to it. As is clear from paragraphs 106 to 109 above, that premiss is incorrect.

116 Next, as regards the allegedly new argument in recital 890 of the contested decision, it consists in the Commission stating that arrangements with other carriers were such as to enable each of those carriers to ‘overcome any legal or technical barriers to the provision of [freight] services on routes on which it did not operate or which it could not legally have operated’.

117 On the one hand, it must be observed that, as is apparent from recitals 112, 886 and 887 of the contested decision, the statement in question is made by the Commission in response to the arguments of certain addressees of the Statement of Objections intending to call into question the relevance of contacts in third countries and contacts concerning routes which the carriers had never operated or which they could not legally have operated.

118 Thus, the statement in question falls within the possibility afforded to the Commission, in the light of the administrative procedure, of revising or supplementing the arguments of fact or of law on which it has relied in support of its objections (see, to that effect, judgment of 29 March 2012, Telefónica and Telefónica de España v Commission, T‑336/07, EU:T:2012:172, paragraph 82).

119 On the other hand, the Commission’s allegedly new argument in recital 890 of the contested decision was in fact based on factors already set out in the Statement of Objections.

120 Thus, in paragraph 7 of the Statement of Objections, the Commission stated the following:

‘no airline is able to reach all major cargo destinations in the world with its own network with sufficient frequencies, so agreements among carriers to increase their network coverage or improve their schedule are common. Such agreements can take various forms, such as a simple capacity purchase or some degree of costs and revenue sharing. Within the industry, they are often referred to as “joint ventures” even when they are in reality only capacity purchase agreements’.

121 In paragraph 102 of the Statement of Objections, the Commission adds the following:

‘most [freight] carrier providers operate on a worldwide basis. Air transport is generally carried out over distance and goods are often transported from continent to continent. The market for [freight] is worldwide. Most [freight] service providers operate a route network on which they offer regular services in both directions. Typically, they offer services to or from a number of airports in their home region and a wide range of airports in other parts of the world. Through agreements with other carriers they may also offer airfreight services to or from other airports which their own aircraft do not serve, or freight for which they do not have available capacity’.

122 Furthermore, any difference alleged by the applicant between the Decision of 9 November 2010 and the contested decision is irrelevant. In connection with the present plea, it matters only whether or not the evidence in question was brought to the applicant’s attention during the administrative procedure.

123 Moreover, in so far as the applicant complains that the Commission did not put it in a position, in the absence of a new statement of objections, to react to the abandonment of the objections in respect of the non-incriminated carriers, it is sufficient to recall that where, as in the present case, the Commission abandons all the objections raised against certain companies initially involved in the procedure in question, it cannot be required to allow the companies to which its decision is ultimately addressed to make known their views on that abandonment, since communication to the parties concerned of further objections and, consequently, the opportunity for those parties to express their views on them are necessary only where the Commission is led to take new facts into account against the undertakings concerned or to alter materially the evidence for the contested infringements (judgment of 9 October 2014, ICF v Commission, C‑467/13 P, not published, EU:C:2014:2274, paragraph 36).

124 Lastly, since, in the contested decision, the Commission did not take into account against the applicant its intention to withdraw its leniency application, there was no need for the Commission to hear the applicant beforehand on that subject.

125 In the light of all of the foregoing, the present plea must be rejected.

2. The second plea, alleging, in essence, a failure to state reasons as to the scope of the single and continuous infringement

126 The applicant claims, in essence, that the contested decision is vitiated by three ‘defects in reasoning’ in so far as it finds carriers established outside the EEA liable for the conduct of the ‘core’ of the cartel at issue on routes which they were unable to operate.

127 Those defects concern, first, the finding of a single and continuous infringement ‘on a global basis’, second, the definition of the nature and scope of the single and continuous infringement and, third, the Commission’s failure to correct the contradiction which led to the annulment of the Decision of 9 November 2010.

128 Those three grounds of complaint should be examined in turn.

(a) The finding of a single and continuous infringement ‘on a global basis’

129 The applicant submits that the Commission failed to give sufficient reasons for its finding of a single and continuous infringement ‘on a global basis’. At the stage of the reply, the applicant adds that the Commission in no way justified the factual finding of a ‘global cartel’.

130 The Commission disputes the applicant’s line of argument.

131 In that regard, it should be borne in mind that the principle of effective judicial protection is a general principle of EU law which is 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 European 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 that 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).

132 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).

133 In the present case, it must be observed at the outset that, contrary to the applicant’s claims, the Commission did not conclude, in the operative part of the contested decision, that there was a worldwide infringement. The reference to the incriminated carriers’ coordination of their ‘pricing behaviour in the provision of [freight] services on a global basis’ in the introductory paragraph of Article 1 of that decision is merely a finding of facts which the Commission classified in paragraphs 1 to 4 of that article as an infringement of the competition rules applicable on the routes which it considered, during the relevant periods, to fall within its jurisdiction (see paragraphs 93 and 94 above).

134 Since the operative part of the contested decision is not open to more than one interpretation, it is only for the sake of completeness that the Court adds that the grounds of the contested decision confirm that conclusion. Those grounds thus refer, first, to an infringement of the applicable competition rules the geographic scope of which is limited to specific types of routes (recitals 1146 and 1187) and, second, to a ‘worldwide cartel’ (recitals 74, 112, 832 and 1300), that had a ‘worldwide nature’ (recital 887) or was ‘implemented globally’ (recital 1046).

135 Recital 1210 of the contested decision does, admittedly, deviate from the rule, in that it refers to ‘the geographic scope of the infringement [which] was worldwide’. However, it must be stated that the context of that isolated reference to a worldwide infringement tends to show that it is a mere clerical error and should read ‘the geographic scope of the cartel [at issue] was worldwide’. That reference is followed by the following sentences:

‘For the purposes of establishing the gravity of the infringement, this means that the cartel [at issue] covered the whole of the EEA and Switzerland. That includes [freight] services … on routes in both directions between airports within the EEA, on routes between airports in countries within the [European Union] and airports outside the EEA, on routes between airports in the [European Union] and airports in Switzerland and on routes between airports in the EEA Contracting Parties not being Member States and airports in third countries.’

136 It cannot therefore be maintained that the contested decision contains a finding of a single and continuous infringement ‘on a global basis’. A fortiori, it cannot be maintained that such a finding is insufficiently reasoned.

137 As regards the argument put forward in the reply, alleging a lack of justification for the finding of a ‘global cartel’, it should be noted that it is unfounded. That finding is, in fact, fully reasoned. The Commission thus 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 within the undertakings concerned (recitals 109 and 1300 of the contested decision). According to the Commission, the ‘cartel arrangements [at issue] were in many cases organised centrally’ and implemented locally by local personnel (recital 1046 of the contested decision). According to the Commission, it was a matter of enabling local staff to adapt to local conditions measures of general application ‘on all routes, on a worldwide basis’, namely the surcharges and the refusal to pay commission (recitals 876, 889 and 890 of the contested decision, as well as footnote 1323 thereto).

138 The applicant’s claim that the Commission failed to justify the finding of a ‘global cartel’ is thus incorrect.

139 Furthermore, in so far as the line of argument must be understood as meaning that the Commission has not established the finding that the three elements of the single and continuous infringement are global, it should be noted that it is unfounded, without there being any need to rule on its admissibility. The Commission based that finding on items of evidence which must be regarded as being all the more numerous since it is normal for the activities which anticompetitive agreements entail to take place clandestinely, for meetings to be held in secret, and for the associated documentation to be reduced to a minimum (see judgment of 16 February 2017, H&R ChemPharm v Commission, C‑95/15 P, not published, EU:C:2017:125, paragraph 39 and the case-law cited).

140 Thus, as regards the surcharges, the Commission gathered various items of evidence, several of which are cited by way of example in footnote 1323 to the contested decision, which support to the requisite standard its conclusion that the surcharges are generally applicable ‘on all routes, on a worldwide basis’.

141 First, as regards the FSC, it should be noted, in particular, that recital 140 of the contested decision refers to an internal email of Swiss in which it is stated that AF ‘will levy worldwide [an FSC] of EUR 0.10/ USD [per] Kg’, that KLM ‘will exactly do the same’ and that Lufthansa ‘is going into the same direction but [has] not [yet] confirmed at this minute’. Also, in recital 162 of the contested decision, reference is made to an exchange of emails between Lufthansa and Japan Airlines of 27 September 2000 in which it is stated that Lufthansa Cargo intends to apply 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 was in contact with a number of carriers concerning the implementation of a worldwide FSC.

142 Similarly, footnote 1323 to the contested decision makes note of announcements of increases or decreases in the FSC or the SSC which referred to a worldwide application of those surcharges that ‘was not limited to a specific route’.

143 Second, 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 informs Lufthansa of its intention to introduce an ‘exceptional handling fee’ worldwide. Also, in recital 666 of that decision, the Commission referred to the minutes of a meeting of the executive committee of the Cargo Sub-Committee (‘the CSC’) of the Board of Airline Representatives (‘the BAR’) on 30 March 2004 in Hong Kong. It is apparent from those minutes that the amount of the SSC on routes from Hong Kong is based on the ‘worldwide benchmark’.

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

145 However, first, in so far as the surcharges were generally applicable ‘on all routes, on a worldwide basis’, it was likely that the refusal to pay commission was also so applicable. In recital 879 of the contested decision, the Commission found that the refusal to pay commission and the two other elements of the single and continuous infringement were complementary inasmuch as it had ‘ensured that surcharges were not subject to competition through the negotiation of commission (in fact discounts on the surcharges) with customers’.

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

147 The Commission has, moreover, adduced evidence to show that such coordination occurred in many countries throughout 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).

148 The present complaint must therefore be rejected.

(b) The definition of the nature and scope of the single and continuous infringement

149 The applicant submits that the Commission failed to define in sufficient detail the nature and scope of the single and continuous infringement. The applicant puts forward two arguments in support of that submission, relating, first, to the inadequate statement of reasons for the geographic and temporal scope of the single and continuous infringement and, second, to the inadequate statement of reasons for various references and allegations in the contested decision.

(1) The geographic and temporal scope of the single and continuous infringement

150 The applicant complains that the Commission failed to explain how it committed a ‘worldwide’ infringement covering, on the one hand, intra-EEA routes and EU-Switzerland routes, on which it could not operate, and, on the other hand, non-EU EEA-third country routes, on which no evidence was found against it. In so doing, the Commission based its findings, moreover, on a ‘notion of constructive guilt … contrary … to the presumption of innocence’ and disregarded the ‘normal principles of jurisdictional reach, as applied in other sectors’.

151 According to the applicant, the Commission confused the two distinct concepts of a single and continuous infringement and a worldwide cartel. What is meant by the term ‘global infringement’ is elusive and it is difficult to understand how the Commission can lawfully conclude that there has been a single infringement that allegedly infringes three different provisions. The applicant argues that an infringement can be established ratione temporis and ratione loci only by reference to legal prohibitions whose scope is, by definition, limited. The use of the words ‘cartel’ or ‘worldwide cartel’ cannot substitute for a proper analysis of the territorial and temporal scope of the single and continuous infringement.

152 The ‘radical, novel and entirely fantastic character’ of the theory underlying the concept of a worldwide cartel required a careful and detailed statement of reasons.

153 The Commission disputes the applicant’s line of argument.

154 It should be noted at the outset that, as is apparent from paragraphs 131 to 136 above, the Commission neither confuses the concepts of ‘worldwide cartel’ and single and continuous infringement nor found the existence of a ‘global infringement’.

155 In so far as the applicant merely intended to claim that the Commission did not give sufficient reasons for the finding of a single and continuous infringement of three separate provisions encompassing routes on which it could not operate or in respect of which it has not been proved that it operated on them during the infringement period, it must be recalled that, under Article 296 TFEU and Article 41(2)(c) of the Charter, the decisions adopted by the Commission must state the reasons on which they are based.

156 The statement of reasons must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review (see, to that effect, judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 147).

157 Compliance with the obligation to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of concern within the meaning of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU and Article 41(2)(c) of the Charter must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 150, and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraph 45).

158 It is apparent from the introductory paragraph of Article 1 of the contested decision and from recitals 74, 107, 112, 832, 887, 1046 and 1300 thereof that the Commission’s investigation revealed the existence of a worldwide cartel between 7 December 1999 and 14 February 2006. In recital 889, the Commission found that the FSC and the SSC were intended to be applied to ‘on all routes, on a worldwide basis’. In recitals 814 to 832 of that decision, the Commission set out the relevant competition rules and explained that they each had their own scope ratione loci and ratione temporis. The Commission noted, inter alia, that Article 101 TFEU and Article 53 of the EEA Agreement applied, respectively, to intra-EU routes and intra-EEA routes throughout the infringement period, but had become applicable, respectively, to EU-third country routes only on 1 May 2004 and to non-EU EEA-third country routes only on 19 May 2005. As regards Article 8 of the EC-Switzerland Air Transport Agreement, the Commission stated that it applied to EU-Switzerland routes since 1 June 2002.

159 Thus, the Commission found that the incriminated carriers had committed a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement on intra-EEA routes between 7 December 1999 and 14 February 2006, of Article 101 TFEU on EU-third country routes between 1 May 2004 and 14 February 2006, of Article 53 of the EEA Agreement on non-EU EEA-third country routes between 19 May 2005 and 14 February 2006, and of Article 8 of the EC-Switzerland Air Transport Agreement on EU-Switzerland routes between 1 June 2002 and 14 February 2006.

160 In those circumstances, it was easy for the applicant to understand why the Commission found that there had been a single and continuous infringement of three separate provisions and for the Court to exercise its power of review.

161 As regards the reasons why the Commission found the applicant liable for the single and continuous infringement on routes on which it allegedly could not operate or in respect of which it has not been established that it operated on them during the infringement period, 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 the applicant and British Airways, which maintained that they had not been aware of the existence of a ‘wider conspiracy’.

162 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-EU/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’.

163 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 882 of that decision, it stated that the applicant had participated directly only in the elements of the single and continuous infringement relating to the FSC and to the SSC, but could also be found liable for the element relating to the refusal to pay commission, on the ground that it was aware of it or could reasonably have foreseen it and was prepared to take the risk.

164 It is clear from the Commission’s replies to the arguments put forward by the applicant and British Airways in recitals 894 to 897 of the contested decision that it did not consider that the applicant had directly participated in all the anticompetitive activities which fell within the elements of the single and continuous infringement relating to the FSC and to the SSC.

165 In those circumstances, also taking into account the settled case-law according to which the scope of Article 101(1) TFEU is not limited to undertakings operating on the market affected by the restrictions of competition or the markets upstream or downstream of that market or neighbouring markets, or to undertakings which restrict their freedom of action on a particular market under an agreement or as a result of a practice (see judgment of 22 October 2015, AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraphs 34 and 35 and the case-law cited), it was easy for the applicant to understand that – and for the Court to review whether – it was on the ground that the applicant intended 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 it did not participate directly that the Commission imputed to it liability for the single and continuous infringement, including in so far as it concerned intra-EU routes and EU-Switzerland routes.

166 This argument must therefore be rejected.

(2) Recitals 887 to 890 of the contested decision

167 The applicant submits that various references and allegations in recitals 887 to 890 of the contested decision, as well as in footnote 1323 thereto, do not meet the rigorous standard required for an adequate statement of reasons. The applicant is referring to the references to the ‘worldwide’ nature of the cartel at issue and to the allegations that, first, the contacts at issue were held in parallel and concerned the same carriers, second, the ‘surcharges … [were] not route specific’ and, third, contacts concerning routes on which the carriers concerned could not operate were ‘relevant to establishing the existence of the single and continuous infringement’.

168 The applicant adds that the Commission failed to use the concept of ‘complementarity’ to explain how contacts between carriers established outside the EEA, which were lawful and sometimes concerned routes between third countries, could legitimately be regarded as proving collusion on intra-EEA routes or, before 1 May 2004, on EEA-third country routes.

169 The Commission disputes the applicant’s line of argument.

170 It must be stated at the outset that the applicant’s line of argument is open to two interpretations.

171 The first is that the applicant submits that the evidence relied on in recitals 887 to 890 of the contested decision is not sufficient to explain why the Commission attributed to the conduct at issue the geographic and temporal scope described in the contested decision, in which case it is sufficient to refer to paragraphs 131 to 138 and 154 to 165 above.

172 The second is that the applicant considers that several references and allegations in recitals 887 to 890 of the contested decision are, in themselves, insufficiently reasoned. In that case, first of all, it should be borne in mind that, as is apparent from paragraphs 137 to 138 above, the Commission set out to the requisite standard the reasons why it concluded that the cartel at issue was ‘worldwide’ in nature. For the reasons set out in those paragraphs, the Commission cannot be criticised for having given insufficient reasons for the finding in recital 889 of the contested decision that the ‘surcharges … [were] not route specific’.

173 Next, it should be noted that the allegations that the contacts at issue were held in parallel and concerned the same carriers are based on the assessments set out in recitals 880 to 883 of the contested decision, which enable the applicant to understand – and the Court to review – whether they were well founded.

174 Lastly, as regards the reasons why the Commission took into account contacts concerning routes on which the carriers concerned could not operate, it is sufficient to observe that they are set out in detail in recitals 112 and 888 to 890 of the contested decision, as well as in footnotes 1323 to 1328 thereto. In so far as the applicant disputes the merits of those reasons, suffice it to note that its arguments do not relate to compliance with the obligation to state reasons (see, to that effect, judgment of 22 March 2001, France v Commission, C‑17/99, EU:C:2001:178, paragraph 35), which is the sole subject matter of the present plea.

175 As regards the Commission’s alleged failure to rely on the concept of ‘complementarity’ to explain how contacts between carriers established outside the EEA could legitimately be regarded as proving collusion on intra-EEA routes or on EEA-third country routes before 1 May 2004, it must be noted that the applicant is mistaken.

176 The existence of links of complementarity between the various instances of conduct at issue, in that each of them is intended to deal with one or more consequences of the normal pattern of competition and contribute, through interaction, to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of an overall plan having a single objective, may constitute an objective indication supporting the existence of an overall plan aimed at the attainment of 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).

177 However, contrary to the applicant’s assertion, it is not necessary, for the purposes of characterising various instances of conduct as a single and continuous infringement, to establish whether they present such links. The concept of ‘single objective’ means only that it must 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 and the case-law cited).

178 It follows that, even if it were proved, the Commission’s alleged failure to establish a link of complementarity between the contacts at issue between carriers established outside the EEA and the other contacts at issue is not, in itself, capable of vitiating the contested decision by a failure to state reasons.

179 In any event, it should be noted that the applicant’s line of argument has no basis in fact. It is true that the Commission did not expressly examine the existence of links of complementarity between the contacts at issue between carriers established outside the EEA and the other contacts at issue in the context of its examination of the single nature of the single and continuous infringement. In that context, the Commission concentrated on the examination of the links of complementarity between the surcharges and the refusal to pay commission (recital 879 of the contested decision). However, the Commission cannot be criticised for not having expressly examined, in that context, the existence of such links between all the different categories and subcategories of possible and conceivable contacts. That is all the more true given that the Commission set out, elsewhere in the contested decision, the reasons why such links existed between the contacts at issue between carriers established outside the EEA and the other contacts at issue, and found, inter alia, on the subject of coordination in relation to inbound routes, that the uniform application of the surcharges on a worldwide scale was a key element of the cartel at issue (recital 1046 of the contested decision).

180 It follows that this argument must be rejected and, accordingly, the present complaint must be rejected in its entirety.

(c) The contradiction which led to the annulment of the Decision of 9 November 2010

181 The applicant claims that the Commission failed to correct the contradiction which led to the annulment of the Decision of 9 November 2010. The part of the contested decision relating to fines continues to refer to several separate infringements, whereas the operative part relates to only one infringement.

182 The Commission disputes the applicant’s line of argument.

183 In that regard, it should be recalled that the Court held as follows in paragraph 60 of the judgment of 16 December 2015, Air Canada v Commission (T‑9/11, not published, EU:T:2015:994):

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

184 In the contested decision, the Commission sought to resolve that contradiction by finding, in Article 1 thereof, a single and continuous infringement relating to all of the routes concerned and for which liability was imputed to all of the incriminated carriers.

185 The applicant cannot deduce from the reasons given in the part of the contested decision relating to the fine that that contradiction nevertheless persists. In recitals 1214, 1215, 1216 and 1217 of the contested decision, the Commission examined the ‘duration in respect of the infringement concerning air transport between airports in the EEA’, the ‘duration in respect of the infringement concerning air transport between airports in the [European Union] and airports in countries outside the EEA (except Switzerland)’, the ‘duration in respect of the infringement concerning routes between airports in the [European Union] and Switzerland’ and ‘the duration of the infringement in respect of air transport between airports in Contracting Parties to the EEA Agreement not being Member States and airports in third countries’.

186 In the part of the contested decision relating to the fine, the Commission systematically refers to ‘the infringement’ to designate the single and continuous infringement (see, inter alia, recitals 1177, 1179, 1204 and 1207). It follows that the reference to ‘the infringement’ in recitals 1214 to 1217 refers not to four separate infringements but to the single and continuous infringement in so far as it relates to different types of routes, which fall within the scope ratione loci and ratione temporis of different provisions. It must therefore be concluded that, as the Commission correctly observes in the defence, those recitals merely indicate that the agreements and practices at issue infringed different provisions on different types of routes during different periods.

187 It follows that the alleged contradiction does not exist. The present complaint must therefore be rejected, as must, consequently, the present plea in its entirety.

3. The fourth plea, alleging a lack of jurisdiction on the part of the Commission to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes, on the one hand, and on EU-third country routes before 1 May 2004 and on non-EU EEA-third country routes before 19 May 2005, on the other

188 In connection with the present plea, the applicant complains that the Commission exceeded the limits of its jurisdiction, which the Commission disputes.

189 This plea is divided, in essence, into two parts, the first alleging a lack of jurisdiction in taking into account the evidence relating to EU-third country routes and non-EU EEA-third country routes before 1 May 2004 and before 19 May 2005, respectively, and the second alleging a lack of jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes.

190 The Court considers it appropriate to examine the second part of this plea before the first.

(a) The second part of the plea, alleging a lack of jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes

191 The applicant complains that the Commission declared that it had jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes. The applicant puts forward three complaints in support of its position. Those complaints are based, in essence, first, on the misinterpretation of Council Regulation (EC) No 411/2004 of 26 February 2004 repealing Regulation (EEC) No 3975/87 and amending Regulations (EEC) No 3976/87 and (EC) No 1/2003, in connection with air transport between the Community and third countries (OJ 2004 L 68, p. 1); second, on misapplication of the implementation test; and, third, misapplication of the qualified effects test.

(1) The first complaint, based on a misinterpretation of Regulation No 411/2004

192 Referring to recitals 2 and 3 of Regulation No 411/2004, the applicant submits that the application of Article 101 TFEU to freight services on both outbound and inbound routes is easy to understand when considering passenger air services. Those services almost invariably involve a return flight. Conversely, freight is by its very nature unidirectional.

193 The Commission disputes the applicant’s line of argument.

194 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.

195 In the absence of such legislation, Articles 104 and 105 TFEU apply and impose, in essence, on the authorities in Member States the obligation to apply Articles 101 and 102 TFEU and limit the Commission’s powers in that area to investigating, on application by a Member State or on its own initiative, and in cooperation with the competent authorities in the Member States, which are to give it their assistance, cases of suspected infringement of the principles laid down by those provisions and, where necessary, 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).

196 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).

197 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).

198 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 195 above.

199 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).

200 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.

201 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 [EU] airports and third countries’.

202 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.

203 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.

204 In the present case, the parties disagree, in essence, on whether the scope of Regulation No 411/2004 and Decision of the EEA Joint Committee No 40/2005 extends to inbound freight services.

205 In that connection, first of all, it should be noted that, since Regulation No 411/2004 repealed Regulation No 3975/87 and removed Article 32(c) of Regulation No 1/2003, there is no longer an express legal basis that would be such as to justify inbound freight services continuing to be excluded from the scheme introduced by Regulation No 1/2003 and thus remaining subject to the rules laid down in Articles 104 and 105 TFEU.

206 Next, there is nothing in the wording or general scheme of Regulation No 411/2004 to suggest that the legislature intended to maintain the exclusion of inbound freight services from the scope of Regulation No 1/2003. On the contrary, both the title and recitals 1 to 3, 6 and 7 of Regulation No 411/2004 expressly refer to ‘air transport between the [European Union] and third countries’, without any distinction according to whether (i) they are from or to the European Union or (ii) they concern freight or the carriage of passengers.

207 The purpose of Regulation No 411/2004 also argues in favour of including inbound freight services within the scope of that regulation. It is clear from recital 3 of that regulation that the extension of the scope of Regulation No 1/2003 to air transport between the European Union and third countries is based on a twofold finding. First, ‘anti-competitive practices in air transport between the [European Union] and third countries may affect trade between Member States’. Second, ‘mechanisms enshrined in [the latter regulation] are equally appropriate for applying the competition rules to air transport between the [European Union] and third countries’. The applicant has neither demonstrated nor even alleged that inbound freight services are, by their very nature, incapable of affecting trade between Member States or are not appropriate for implementing the mechanisms provided for by that regulation.

208 Lastly, the travaux préparatoires for Regulation No 411/2004 confirm that the EU legislature did not intend to draw a distinction either between inbound routes and outbound routes or between freight and passenger transport. It is thus clear from point 10 of the explanatory memorandum to the proposal for the Council regulation repealing Regulation No 3975/87 and amending Regulation (EEC) No 3976/87 and Regulation No 1/2003, in connection with air transport between the [European Union] and third countries (COM(2003) 91 final – CNS 2003/0038), that ‘the extension of the competition enforcement rules to include also international air transport to and from the [European Union] would afford [carriers] the clear benefit of a common EU-wide enforcement system as to the legality of their agreement under the [EU] competition rules’. In the same point, reference is made to the desire to ensure ‘the airline industry’s need for a level playing field for all air transport activities’.

209 It follows that, contrary to the applicant’s claim, inbound freight services fall within the scope of Regulation No 411/2004 and Decision of the EEA Joint Committee No 40/2005. The Commission did not therefore err in finding, in recital 1041 of the contested decision, that Article 101 TFEU was applicable to air transport between the European Union and third countries ‘in both directions’, and those considerations apply in respect of Article 53 of the EEA Agreement as regards non-EU EEA-third country routes.

210 The present complaint must therefore be rejected.

(2) The second and third complaints, based, respectively, on an error in the application of the implementation test and on an error in the application of the qualified effects test

211 It should be observed that, 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.

212 It is also necessary for the Commission to 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).

213 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).

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

215 Since the applicant alleges 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 213 above, only if this was not the case will it be necessary to ascertain whether the Commission could rely on the implementation test.

216 The applicant complains that the Commission failed to prove that the conditions relating to the qualified effects test were satisfied in the present case. The applicant submits that the Commission cannot claim, based on speculation and assertion rather than evidence, that the ‘global cartel’ was capable of having immediate and substantial effects in the EEA in so far as it extended to inbound routes. According to the applicant, the contested decision fails to take into account the unidirectional nature of airfreight services. Competition for such services takes place at the point of departure, which is outside the EEA even though the place of destination is within the EEA.

217 As for the ‘knock-on effect’ alleged in recital 1045 of the contested decision, according to the applicant, it has not been proved that such effect would be immediate, substantial and foreseeable. At the hearing, the applicant added that, since the customer has the choice whether or not to pass on any additional costs downstream, there could not, by definition, be any question of immediate effect.

218 Again at the hearing, the applicant emphasised that the Commission had not demonstrated any effects on prices. In support of that argument, the applicant referred to recital 917 of the contested decision, from which it is allegedly apparent that, as regards a restriction of competition ‘by object’, the Commission did not examine the anticompetitive effects of the single and continuous infringement.

219 The applicant further submits that the Commission cannot consider that the inclusion in the single and continuous infringement of the instances of conduct relating to inbound routes dispenses it from having to establish that they had an immediate, substantial and foreseeable effect in the EEA.

220 The Commission disputes the applicant’s line of argument.

221 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.

222 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’.

223 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.

224 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.

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

225 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.

226 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).

227 In the present case, the applicant disputes the relevance of the effect at issue (see paragraphs 228 to 244 below), its foreseeability (see paragraphs 246 to 261 below), its substantiality (see paragraphs 262 to 272 below) and its immediacy (see paragraphs 273 to 278 below).

– The relevance of the effect at issue

228 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).

229 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).

230 The qualified effects 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).

231 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.

232 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 the demonstration of the actual effects which classification of conduct as a restriction of competition ‘by effect’ within the meaning of those provisions presupposes.

233 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 limiting 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).

234 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).

235 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).

236 In those circumstances, interpreting the qualified effects test 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.

237 The applicant 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 applicant 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.

238 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.

239 As regards the fact, put forward by the applicant, that competition for inbound freight services took place only in third countries where the freight forwarders who sourced inbound freight services from the incriminated carriers are established, it does not permit the inference that the additional cost which shippers might have had to pay and the higher prices of the goods imported into the EEA which may have resulted were not among the effects produced by the conduct at issue which the Commission was entitled to take into account for the purposes of applying the qualified effects test.

240 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).

241 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, almost all those sales take place at the origin of the routes in question, outside the EEA, where those freight forwarders are established. It is apparent from the application and from the applicant’s oral answers to a written question put by the Court that, between 1 May 2004 and 14 February 2006, the applicant did not make any of its sales of inbound freight services to customers based in the EEA.

242 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.

243 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.

244 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.

245 In accordance with the case-law cited in paragraph 226 above, the question is therefore whether that effect has the required foreseeability, substantiality and immediacy.

– The foreseeability of the effect at issue

246 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).

247 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).

248 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).

249 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.

250 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).

251 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. Since the applicant merely made assertions, it cannot be considered that a ‘waterbed effect’ was so probable as to render the effect at issue unforeseeable.

252 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.

253 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.

254 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 the light of which the freight forwarders determine their own prices.

255 The applicant does 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.

256 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.

257 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.

258 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.

259 For the reasons set out in paragraph 242 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.

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

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

– The substantiality of the effect at issue

262 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).

263 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.

264 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.

265 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 eight 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.

266 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’.

267 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.

268 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 during the infringement period the surcharges represented a significant proportion of the total price of freight services.

269 It is thus apparent from a letter of 8 July 2005 from the Hong Kong Association of Freight Forwarding & Logistics to the Chairman of the Hong Kong BAR CSC that the surcharges represent a ‘very significant part’ of the total price of the air waybills which the freight forwarders were required to pay.

270 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’.

271 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 applicant itself achieved a significant turnover on the inbound routes, amounting to approximately EUR 57 000 000 in 2005.

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

– The immediacy of the effect at issue

273 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).

274 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).

275 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.

276 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).

277 In the present case, the applicant has 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.

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

279 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.

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

280 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).

281 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).

282 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).

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

284 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 applicant contests 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 fifth plea, which relates to that issue.

285 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 that, as is apparent from recital 72 of the contested decision, ‘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.

286 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).

287 That assessment is not called into question by the argument, put forward at the hearing, that the Commission failed to define the relevant market. It should be noted 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 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).

288 In the present case, the applicant does 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.

289 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.

290 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.

291 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.

292 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 second 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.

(b) The first part of the plea, alleging a lack of jurisdiction to apply Article 101 TFEU to EU-third country routes before 1 May 2004 and Article 53 of the EEA Agreement to non-EU EEA-third country routes before 19 May 2005

293 The applicant claims that the Commission exceeded the limits of its jurisdiction by implicitly applying Article 101 TFEU to EU-third country routes before 1 May 2004 and Article 53 of the EEA Agreement to non-EU EEA-third country routes before 19 May 2005. According to the applicant, the Commission relied on contacts that were held before those dates and related to those periods in order to conclude, in recitals 719, 720, 882 and 897 of the contested decision, that the applicant had participated in the single and continuous infringement in so far as it concerns intra-EEA routes. Thus, of the 36 recitals cited in recital 719 of the contested decision in order to impute to the applicant liability for the element of the single and continuous infringement relating to the FSC, 50% refer to documents concerning the period prior to 1 May 2004 during which Article 101 TFEU was not applicable. That percentage amounts to 89% for the nine recitals referred to in recital 720 in order to impute to the applicant liability for the single and continuous infringement in so far as it concerns the SSC and 39% for the 41 recitals referred to in recital 897 in order to conclude that the applicant was involved in a continuous infringement.

294 According to the applicant, this ‘sleight of hand’ not only allowed the Commission to circumvent the rules which restricted its jurisdiction to apply the competition rules to third country routes, but also to rely on perfectly lawful instances of conduct (since Article 101 TFEU did not apply to them) as evidence of the single and continuous infringement, or even as constituent elements of an infringement on intra-EEA routes, in respect of which the Commission had nevertheless expressly found that the applicant could not be held liable in recital 1124 of the Decision of 9 November 2010.

295 The applicant adds that the Commission’s conclusion in the contested decision that those lawful contacts were nevertheless incriminatory or ‘relevant’ and proved that the applicant had infringed the competition rules concerning intra-EEA routes, in spite of the fact that it was prohibited from operating or providing freight services on such routes, is inexplicable and unexplained.

296 The irrationality of the Commission’s position in the contested decision is made clear by the inconsistent and discriminatory treatment accorded to Qantas, which, just like the applicant, is a carrier established outside the EEA. Qantas was not found liable for an infringement on intra-EEA routes or EU-Switzerland routes. The Commission’s attempt to explain that inconsistent approach in recitals 1064 and 1069 of the contested decision is nonsensical, is not borne out by the case-law and is, in any event, inconsistent with the judgment of 20 May 2015, Timab Industries and CFPR v Commission (T‑456/10, EU:T:2015:296).

297 The Commission disputes the applicant’s line of argument.

298 As a preliminary point, it must be borne in mind, as the applicant submits, that the Commission did not have jurisdiction to find and penalise an infringement of Article 101 TFEU on EU-third country routes and Article 53 of the EEA Agreement on non-EU EEA-third country routes until 1 May 2004 and 19 May 2005 respectively (see paragraphs 194 to 203 above).

299 In the present case, it is common ground between the parties that, in the operative part of the contested decision, the Commission did not find any infringement on EU-third country routes before 1 May 2004 or on non-EU EEA-third country routes before 19 May 2005. Thus, Article 1(1) of the contested decision merely finds an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on intra-EEA routes. Article 1(2) of the contested decision, for its part, finds an infringement of Article 101 TFEU on EU-third country routes as from 1 May 2004. That paragraph does not include EU-Switzerland routes, on which the Commission found an infringement of Article 8 of the EC-Switzerland Air Transport Agreement in Article 1(4) of the contested decision.

300 As regards Article 1(3) of the contested decision, it must be observed that it finds an infringement of Article 53 of the EEA Agreement on non-EU EEA-third country routes only as from 19 May 2005.

301 It follows that, in the operative part of the contested decision, the Commission did not find any infringement of Article 101 TFEU or Article 53 of the EEA Agreement on routes falling outside its territorial jurisdiction during the relevant periods.

302 The applicant also considers that the Commission vitiated the contested decision by referring to contacts relating to routes which allegedly fell outside its territorial jurisdiction during the relevant periods in order to find an infringement of the relevant provisions on routes which fell within its jurisdiction. As regards the contacts which the Commission took into account in order to impute to the applicant liability for the elements of the single and continuous infringement relating to the FSC and the SSC, the applicant cites, respectively, 20 recitals (recitals 135, 145, 161, 173, 174, 181, 182, 218, 231, 234, 249, 255, 272, 274, 279, 283, 291, 292, 303 and 313) and eight recitals (recitals 585, 591, 594, 609, 612, 636, 660 and 665). The applicant also observes that the Commission relied, in recital 897 of the contested decision, on a number of those recitals in order to conclude that it discussed pricing matters with numerous parties and was aware that such matters were being discussed between carriers. Lastly, it must be noted that, although the applicant relies, in connection with this part of the plea, on the conclusion reached by the Commission, in recital 882 of the contested decision regarding its awareness of the other carriers’ discussions concerning the refusal to pay commission, none of the contacts cited by the applicant as falling outside the Commission’s jurisdiction is used to support that conclusion.

303 Among the recitals at issue, it should be noted that recital 181 of the contested decision does not, strictly speaking, describe a contact which might fall outside the Commission’s jurisdiction. In that recital, the Commission merely described Air Cargo Council Switzerland (‘ACCS’) and the role which it played in the cartel at issue from the beginning of 2001.

304 It should also be noted that the material in the file does not fully support the interpretation of the content of the other contacts referred to in paragraph 302 above (‘the contested contacts’) which the applicant defended before the Court. It must thus be observed that several of those contacts involved employees established in the EEA and that the Commission was entitled to consider that they concerned, at least in part, routes which fell within the Commission’s jurisdiction (recitals 135, 173, 174, 274, 279, 313, 591 and 609).

305 Thus, first, in recitals 135, 313, 591 and 609 of the contested decision, reference is made to a number of contacts in which both carriers established in the EEA and carriers established outside the EEA participated. In recital 135 of that decision, the Commission refers to a contact which began with an email from SAS to Lufthansa, three other carriers and the applicant. In that email, while expressing its hesitation, SAS asked its interlocutors about their intention to introduce an FSC in so far as the fuel price had passed the so-called trigger point set by IATA in a draft resolution for the introduction of an FSC. In response, one of the carriers in question agreed with SAS, while Lufthansa stated the following:

‘we are also reluctant to take the initiative this time. If other, big competitors of ours were to go for it, we would follow …’.

306 Moreover, it is apparent from recital 144 of the contested decision that, less than a month after the contact referred to in recital 135, discussions took place between the local manager of SAS in Finland, who internally asked inter alia ‘how is it going for L[ufthansa] this time?’, and three other incriminated carriers concerning the introduction of the FSC.

307 In recital 313 of the contested decision, reference is made to an email of 4 December 2003 by which Lufthansa sent to several other carriers in Germany, including the applicant, AF, Cargolux, KLM and Martinair, its announcement of an FSC increase of the same day. Similarly, recital 591 of that decision concerns an internal email of another carrier in which reference is made to contacts with several carriers, including the applicant, Lufthansa and British Airways. Recital 609 of that decision describes an email of 11 October 2001 by which the CPA local manager in France informed several carriers, including the applicant, AF, British Airways, Lufthansa, KLM and Martinair, that he had been instructed by his head office to follow the national carrier concerning the SSC.

308 As regards contacts involving a number of carriers established in the EEA, given that the surcharges were found in recital 889 of the contested decision to be generally applicable and failing any concrete evidence that intra-EEA routes were excluded from the discussion, it cannot be considered that those contacts concerned only EEA-third country routes.

309 Second, the ‘coffee round’ of 22 January 2001 described in recitals 173 and 174 of the contested decision concerned, inter alia, the implementation of the FSC. It is apparent from an internal memo of a Martinair employee concerning that meeting, as summarised in recital 174 of the contested decision, that ‘[Lufthansa] was going to decrease the FSC level on 1 February 2001 while [Cargolux, Swiss, KLM, British Airways and another carrier] maintained [the] FSC level’.

310 The applicant does submit that that meeting in fact consisted of several separate and consecutive meetings, each of which concerned a different area, since it attended only the meeting concerning ‘North Atlantic’ routes. However, it must be observed that the applicant does not in any way demonstrate that its participation in that meeting was so limited and that, like the other carriers invited, it was among the addressees of an invitation which stated that the purpose was, more generally, to ‘discuss the market’.

311 Third, in recital 274 of the contested decision, reference is made to an email of 17 February 2003 by which Lufthansa sent its announcement of an FSC increase to a number of carriers, including the applicant. It is not apparent from that recital that that announcement did not concern intra-EEA routes, nor does the applicant put forward any evidence to that effect. The fact that the applicant did not operate on those routes is irrelevant for the purposes of assessing the Commission’s jurisdiction to take a contact into account. Such jurisdiction cannot depend either on the individual interest which an undertaking had in participating in that contact or on the matters which it shared in that contact.

312 Fourth, in recital 279 of the contested decision, reference is made to an email of 10 March 2003 by which Lufthansa sent the press release concerning its FSC increase to a number of carriers, including the applicant. It must be stated that several of the recipients of that email were established in the EEA, namely AF, Cargolux, KLM, Martinair and SAS. Failing any evidence to the contrary produced by the applicant, it cannot be inferred from the content of the email of 10 March 2003, as reported in recital 279 of the contested decision, that it did not concern intra-EEA routes.

313 Moreover, it should be noted that the contacts described in recitals 145, 182 and 255 of the contested decision, all of which took place within the ACCS, predate, in the case of the first two of those recitals, 1 June 2002 and thus the entry into force of the EC-Switzerland Air Transport Agreement. However, the last of them is subsequent to that date and several of the parties to that contact were established in the EEA, namely Martinair and another carrier. For reasons similar to those set out in paragraph 311 above, the fact that the applicant operated only on routes between Switzerland and third countries and not EU-Switzerland routes is irrelevant for the purposes of assessing the Commission’s jurisdiction.

314 As regards the remaining contested contacts, it is common ground between the parties that they took place in third countries or, at the very least, that they involved local employees of the incriminated carriers in those countries. However, there was nothing to prevent the incriminated carriers from coordinating or exchanging information in such countries concerning other freight services, in particular intra-EEA services. By way of illustration, in recital 296 of the contested decision, reference is made to an internal email of the Qantas office in Singapore dated 18 February 2003 in which reference is made to the introduction of an FSC of a certain amount by British Airways ‘in Europe’. Similarly, in recital 206 of the contested decision, reference is made to a letter of 19 November 2001 in which the Chairman of the BAR CSC in Hong Kong requested that the members of the association ‘advise [him] if [their] head offices [had] any plan to reduce or withdraw the [FSC] in overseas markets’.

315 That said, it should be noted that this part of the plea would be bound to fail even if the contested contacts other than those discussed in paragraphs 303 to 312 above all concerned exclusively routes which, in the relevant periods, fell outside the Commission’s jurisdiction.

316 In that regard, it must be recalled that the Commission may rely on contacts predating the infringement period in order to construct an overall impression 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 where the Commission has no jurisdiction to find and penalise an infringement of the competition rules prior to that period (see, to that effect, judgment of 30 May 2006, Bank Austria Creditanstalt v Commission, T‑198/03, EU:T:2006:136, paragraph 89; see also, to that effect, judgment of 22 March 2012, Slovak Telekom v Commission, T‑458/09 and T‑171/10, EU:T:2012:145, paragraphs 45 to 52).

317 In the part 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’.

318 In recitals 109, 110, 876, 889 and 1046 of the contested decision, as well as footnote 1323 thereto, the Commission set out the modus operandi of that ‘multi-level’ organisation. 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 the surcharges were generally taken at the level of the head offices 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 partly to better implement the instructions received from their respective head offices and to adapt them to the local market conditions and legislation, partly to coordinate and implement local initiatives. In recital 111 of the contested decision, the Commission stated that local associations of carrier representatives were used to that end, in particular in Hong Kong and Switzerland.

319 The contacts at issue were held precisely in that context. First, those contacts concerned, in whole or in part, the introduction and implementation of the surcharges in Switzerland (recitals 145, 182 and 255), Hong Kong (recitals 585, 660 and 665) or Canada (recitals 161, 218, 234, 249, 272, 291, 292 and 303). The remaining contested contacts related, at the very least, to the introduction and implementation of surcharges from one or more EEA countries to one or more third countries (recitals 231, 283, 594, 612 and 636). Second, several of the contacts at issue either involved employees of the head office of the incriminated carriers or referred to instructions from them or to communications with them (recitals 182, 231, 585 and 594). Third, several of those contacts either reflect at local level the announcements made or decisions taken previously at central level (recitals 182, 249, 255, 291 and 303), or at least are contemporaneous with discussions between the head offices or decisions taken at the level of the head offices concerning the surcharges (recitals 145, 161, 585, 594 and 612). Fourth, many of those contacts were held in connection with or alongside local associations of carrier representatives (recitals 145, 182, 255, 660 and 665).

320 The applicant has, moreover, failed to submit that those contacts did not support the interpretation of the other evidence relied on in order to establish the single and continuous infringement and which is not alleged to fall outside the Commission’s jurisdiction. On the contrary, the applicant expressly submits that those contacts are decisive and that the Commission failed to verify whether, without those contacts, there was sufficient evidence relating to intra-EEA routes to support the finding of an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on intra-EEA routes before 1 May 2004 and 19 May 2005, respectively. 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). As regards the contacts relating to the SSC, described in recitals 581 to 674, the vast majority of them took place prior to 19 May 2005, and a large majority of them prior to 1 May 2004. Thus, the contacts relied on by the applicant represent 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, respectively, prior to 1 May 2004 and 19 May 2005, in respect of the routes for which it had jurisdiction and concerning the elements relating to the FSC and to the SSC.

321 Furthermore, in so far as those contacts were relied upon against the applicant in recitals 717 to 720 of the contested decision, they corroborate the Commission’s interpretation of other evidence which is not alleged to fall outside its jurisdiction. Thus, it is appropriate to mention a series of items of evidence relating to contacts which took place after 1 May 2004 (recitals 358, 394, 411, 446 and 450) and 19 May 2005 (recitals 482, 492, 495, 501, 502, 503, 534, 535, 555, 561, 562, 564, 575 and 634).

322 It follows that the Commission did not exceed the limits of its jurisdiction by relying on the contacts at issue in order to construct an overall impression of the cartel at issue and thus corroborate the interpretation of other evidence on which it relied.

323 That conclusion cannot be invalidated by the applicant’s argument alleging discrimination in relation to Qantas.

324 In that regard, it must be recalled that the principle of equal treatment, which is a general principle of EU law, enshrined in Article 20 of the Charter, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 51 and the case-law cited).

325 As noted in paragraph 15 above, Qantas, unlike the other incriminated carriers, including the applicant, did not bring an action against the Decision of 9 November 2010. It follows that that decision has become final with regard to that carrier.

326 Accordingly, while it is true that, under the Decision of 9 November 2010, Qantas was not held liable for the infringing conduct in relation to intra-EEA routes and EU-Switzerland routes, whereas, under the contested decision, the applicant is held liable for the single and continuous infringement as a whole, that situation merely reflects the scheme of legal remedies, as the Commission correctly observes in recital 1069 of the contested decision.

327 Accordingly, since the situations of Qantas and the applicant are not comparable, discrimination against the applicant cannot be established.

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

4. 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

329 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).

330 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).

331 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.

332 The applicant claimed that the reference to ‘third countries’ in Article 1(3) of the contested decision includes the Swiss Confederation. According to the applicant, the latter is not in fact a party to the EEA Agreement, the infringement of which is found in that article. The applicant infers therefrom that, in that article, the Commission found an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes and thus exceeded the limits of its jurisdiction under Article 11(2) of the EC-Switzerland Air Transport Agreement and, accordingly, infringed Article 5(1) TEU and Article 216(2) TFEU.

333 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. According to the Commission, the concept of ‘third country’ within the meaning of that article excludes the Swiss Confederation.

334 The Commission adds that, if it were to be held that it found the applicant 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.

335 It is necessary to determine whether, as the applicant maintains, 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 necessary, whether it thus exceeded the limits of its jurisdiction under the EC-Switzerland Air Transport Agreement.

336 In that regard, it should be recalled that, as observed in paragraph 132 above, it is the operative part, and not the statement of reasons, of a decision which is important for the purposes of determining the scope and nature of the infringements penalised.

337 In Article 1(3) of the contested decision, the Commission found that the applicant 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.

338 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.

339 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 applicant points out, the Swiss Confederation is not a party to the EEA Agreement and is therefore among the third countries to that agreement.

340 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.

341 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’.

342 In accordance with the principle recalled in paragraph 340 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.

343 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.

344 It cannot therefore be considered that the Commission found the applicant 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.

345 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.

346 In recital 1146 of the contested decision, the Commission stated that the ‘anti-competitive 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 (No 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’.

347 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 anti-competitive 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’.

348 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.

349 Contrary to what the applicant claims, 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 applicant in essence submits, if the Commission 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.

350 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.

351 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.

352 The present plea must therefore be rejected.

5. The third plea, alleging, in essence, manifest errors of assessment and of law in imputing to the applicant liability for the single and continuous infringement on intra-EEA routes and EU-Switzerland routes

353 In the context of the present plea, the applicant submits, in essence, that the Commission made manifest errors of assessment and of law in imputing to it liability for the single and continuous infringement in so far as it concerns intra-EEA routes and EU-Switzerland routes. The applicant puts forward three complaints in support of this plea.

354 In the first place, the applicant claims that the Commission ignored the fact that it was legally impossible for it to operate on intra-EEA routes and EU-Switzerland routes, even in collaboration with other carriers holding a licence in the EEA or in Switzerland. The applicant did not have the requisite traffic rights to carry out airfreight transport on those routes for consideration and it was impossible for it to obtain them. Even if it had exceptionally obtained such rights, it would not have been able to provide a competitive service on those routes and would not therefore have been an actual or potential competitor on those routes.

355 At the stage of the reply, the applicant produced several documents in support of its arguments.

356 In the second place, the applicant submits that the Commission erred in recital 890 of the contested decision in applying the judgment of 9 September 2015, Toshiba v Commission (T‑104/13, EU:T:2015:610) to the present case. In that judgment, according to the applicant, the Court held that the purely commercial barriers on which the applicant relied did not constitute insurmountable barriers to its entry into the European market and were not, therefore, such as to rule out any competitive relationship with the other parties to the cartel at issue. The present case is not, however, in any way similar to the facts which gave rise to that judgment. In the present case, the applicant was prohibited from providing the services in question, which constitutes the most insurmountable barrier possible.

357 In the third place, the applicant submits that the Commission could claim that the applicant was potentially competing on intra-EEA routes and EU-Switzerland routes by using the different types of agreements referred to in recital 890 of the contested decision only if it had satisfied the following four cumulative conditions. It was thus for the Commission to prove (i) that the applicant had obtained or could reasonably have obtained the relevant traffic rights, (ii) that it could have entered the route(s) relatively easily and at short notice, (iii) that the exercise of such traffic rights would have enabled the applicant to offer a competitive and economically viable air service, and (iv) that it had given notice of such claims in the Statement of Objections and that the contested decision contained the reasoning supporting those claims.

358 However, in recital 890 of the contested decision, the Commission failed to adduce the slightest evidence in support of its argument that there were no insurmountable barriers preventing the incriminated carriers from providing freight services on routes on which they had never operated and could not lawfully operate. According to the applicant, the references to recitals 16, 68 and 72 are mere passing references to agreements concluded with other carriers which are commonplace in the industry, provided, however, that the necessary traffic rights are held. Those recitals in no way show that a carrier established outside the EEA could itself provide services well beyond the specific direct routes on which it operates. As regards the reference to capacity sharing agreements in recital 16 of the contested decision and the references to recitals 178, 192, 205, 232, 244, 391, 632 and 768 thereof, the applicant submits that they do not contain any information which could be relied on in support of the argument set out in recital 890 of that decision.

359 At the stage of the reply, the applicant submits, in essence, that the Commission cannot maintain that it is irrelevant whether or not the applicant itself was a potential competitor on intra-EEA routes and EU-Switzerland routes. In recital 112 of the contested decision, the Commission relied on the status of several of those carriers as potential competitors on those routes in order to find that the contacts which they had held in third countries other than their home country were relevant to establishing the existence of a single and continuous infringement.

360 As regards the judgments relied on by the Commission in support of that argument in the defence, the applicant submits that they all depend on the facts specific to each case and do not establish a general rule. Those judgments still less entail that the applicant must be found liable for an infringement on intra-EEA routes and EU-Switzerland routes.

361 The Commission disputes the applicant’s line of argument.

362 In order to respond to the present plea, it is appropriate, first of all, to recall the applicable principles (see paragraphs 363 to 377 below), second, to identify the grounds on which the Commission imputed to the applicant liability for the single and continuous infringement in so far as it concerns intra-EEA routes and EU-Switzerland routes (see paragraphs 378 and 379 below) and, third, to examine their merits (see paragraphs 380 to 385 below).

(a) The applicable principles

363 It must be borne in mind that, as is apparent from paragraph 233 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.

364 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).

365 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.

366 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.

367 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).

368 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.

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

370 Contrary to what the applicant claims, it cannot be inferred from paragraph 37 of 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 the ‘essential role of an intermediary and remunerated moderator’ in the cartel at issue. In that judgment, the Court of Justice refrained from establishing the facilitative or essential 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.

371 The Court of Justice’s reasoning was based inter alia on the case-law relating to 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, such an infringement 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 Article 101(1) TFEU, Article 53(1) of the EEA Agreement and Article 8(1) of the EC-Switzerland Air Transport Agreement. Accordingly, if the different actions form part of an ‘overall plan’, because their identical object distorts competition within the internal market, the territory of 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, 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).

372 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).

373 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).

374 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).

375 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).

376 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).

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

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

378 As is apparent from paragraphs 161 to 165 above, it was on the ground that the applicant intended, irrespective of its status as a potential competitor on intra-EEA routes 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 it did not participate directly that the Commission imputed to it liability for the single and continuous infringement, including in so far as it concerned intra-EEA routes and EU-Switzerland routes.

379 The applicant’s repeated references to recital 890 of the contested decision do not call that conclusion into question. It cannot be inferred from that recital that the Commission intended to impute liability to the applicant for the single and continuous infringement in so far as it concerned intra-EEA routes and EU-Switzerland routes on the basis of its status as a potential competitor on those routes. That recital is the only recital in which the Commission, in essence, made reference to the existence of potential competition between the incriminated carriers on the routes on which they did not operate or could not directly operate. Contrary to what the applicant maintains, it is apparent from both its wording and its purpose and context that that recital does not concern the liability of the various incriminated carriers for the single and continuous infringement, but the existence of that infringement, which the applicant does not dispute in the context of the present plea. That recital expressly refers to the ‘existence of the single and continuous infringement’. As regards recitals 112 and 885 to 887 of the contested decision, they indicate that for the Commission, it was a question of demonstrating that the contacts which took place in third countries or the contacts concerning routes on which the incriminated carriers did not operate and could not directly operate were relevant for the purpose of establishing the existence of the single and continuous infringement or the ‘worldwide cartel’.

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

380 In recitals 719 and 720 of the contested decision, the Commission described the ‘numerous contacts’ which the applicant maintained with competitors throughout the period in which it participated in the single and continuous infringement for the purposes of ‘coordinating price in the [freight] sector’. It is clear from those recitals that the applicant participated in the concertation on intra-EEA routes and EU-Switzerland routes. It should be noted that several contacts relating to the FSC in which the applicant took part concerned such routes, at least in part.

381 Thus, the ‘coffee round’ which took place on 22 January 2001 at Lufthansa’s premises in Germany (recitals 173 and 174 of the contested decision), several exchanges of emails within the ACCS (recitals 255, 501, 502, 534, 535, 561 and 562 of the contested decision), several emails by which Lufthansa sent to the applicant and to 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) and an email which Aviainform sent to the applicant and to several other carriers on 22 July 2005 (recital 492 of the contested decision) should be mentioned among the evidence set out in the contested decision.

382 As regards anticompetitive activities relating to intra-EEA and EU-Switzerland routes in which the applicant did not participate directly, it is sufficient to observe that the applicant does not deny, in connection with the present plea, that it had the requisite awareness of them.

383 In so far as the applicant denies that it could knowingly contribute to the implementation of anticompetitive coordination on intra-EEA routes and EU-Switzerland routes, it should be noted that, as is apparent from recitals 872 to 876 of the contested decision, the single and continuous infringement pursued the single anticompetitive aim of restricting competition between the incriminated carriers on surcharges at least within the European Union, the EEA and Switzerland.

384 It is apparent from the contested decision that the applicant intended to contribute by its own conduct to the achievement of that aim. The applicant 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-EEA routes and EU-Switzerland routes in which it 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-EEA routes and EU-Switzerland routes by using alternative routes inter alia via Canada and, consequently, contributed to the achievement of the common anticompetitive aim identified in recitals 872 to 876 of the contested decision (see paragraph 285 above).

385 It follows that the Commission made no error in finding the applicant liable for the single and continuous infringement in so far as it concerns intra-EEA routes and EU-Switzerland routes, irrespective of its possible status as a potential competitor on those routes. The present plea must therefore be rejected, without there being any need to examine the admissibility of the documents produced at the stage of the reply (see paragraph 355 above).

6. The fifth plea, alleging errors as regards the imputation to the applicant of liability for the single and continuous infringement

386 In connection with the present plea, the applicant claims that the Commission erred in imputing to it liability for the single and continuous infringement. This plea consists of three parts, alleging, first, misapplication of the concept of a single and continuous infringement, second, that the Commission failed to prove, by credible evidence, the facts alleged against the applicant and, third, that the Commission’s refusal to accept the withdrawal of the applicant’s leniency application constituted an error and an infringement of the rights of the defence.

(a) The first part of the plea, alleging misapplication of the concept of a single and continuous infringement

387 The applicant submits that the Commission made several serious errors of assessment and abused the concept of a single and continuous infringement in order to avoid a rigorous analysis of the evidence in the file. According to the applicant, the Commission failed to distinguish between lawful and unlawful conduct and to assess the credibility of the leniency statements. The Commission proceeded on the basis of speculation and insinuation, since it failed to demonstrate, by credible evidence, the existence, operation and main characteristics of the cartel at issue or that the applicant was associated with any illegal activity, let alone an unlawful plan.

388 Thus, first, the Commission failed to examine whether the array of seemingly unrelated, diverse and fragmented evidence referred to in the contested decision revealed the existence of a common unlawful enterprise in which all of the incriminated carriers participated. According to the applicant, the entirely lawful meetings and discussions of ‘a legitimate industry body’ in Asia, Switzerland and other regions constituted local responses to local conditions. There is no evidence at all of central coordination of their actions or, more generally, of any concurrence of wills. Even if the Commission had proved the ‘collusive conduct’ which it found to have taken place within industry bodies in third countries, it should at the very least have analysed the effects of such conduct.

389 Second, the Commission tars with the same brush the passive recipients of Lufthansa’s unsolicited emails and the members of the ‘real cartel’, whose salient features were not identified by the Commission.

390 The Commission contends that this part of the plea should be rejected as inadmissible for lack of precision and, in any event, as unfounded.

(1) Admissibility

391 Pursuant to the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that statute, and pursuant to Article 76(d) of the Rules of Procedure, the application must, inter alia, contain the subject matter of the proceedings and a summary of the pleas in law relied on. That information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any further information. In order to guarantee legal certainty and sound administration of justice it is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly, in the application itself (orders of 28 April 1993, De Hoe v Commission, T‑85/92, EU:T:1993:39, paragraph 20, and of 21 May 1999, Asia Motor France and Others v Commission, T‑154/98, EU:T:1999:109, paragraph 49).

392 It is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 94).

393 It should be noted that this part of the plea consists, in essence, of two sections. The first consists of a lengthy account of the principles which the applicant considers to govern the taking of evidence and the use of the concept of a single and continuous infringement. The second consists of a succinct demonstration of how the Commission, according to the applicant, infringed those principles in the contested decision.

394 It is true that, as the Commission observes, the applicant has failed to identify specifically in the application the passages of the contested decision which it considers to be vitiated by an infringement of those principles. It is nevertheless apparent from the application that, as the applicant confirmed in the reply, its arguments relate mainly to the assessments set out in recitals 107 to 112 and 862 to 902 of the contested decision. It follows that, in so far as it relates to those recitals, this part of the plea complies with the requirements of the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure.

395 It does not comply, however, in so far as the applicant claims that it is ‘difficult, if not impossible, to identify specific passages of [the contested decision] as deficient when the entire analysis is superficial’. By failing to describe those alleged deficiencies with a sufficient degree of precision or, at the very least, to include in its pleadings the information necessary to identify them, the applicant has deprived the Court of any opportunity to examine them and the Commission of the opportunity to prepare its defence in full knowledge of the facts.

396 In those circumstances, the Court must confine its examination of the merits of this part of the plea to the assessments in recitals 107 to 112 and 862 to 902 of the contested decision, since otherwise it would be required to seek and identify for itself in the file the deficiencies on which the applicant might have sought to rely or even to reconstruct this part of the plea, giving it a scope which it did not have in the applicant’s mind, and would thus infringe the principle that the subject matter of an action is delimited by the parties, as well as the Commission’s rights of defence (see, to that effect, judgment of 2 April 2019, Fleig v EEAS, T‑492/17, not published, EU:T:2019:211, paragraph 44).

(2) Substance

397 It should be observed that this part of the plea raises, in essence, three separate complaints, which it is for the Court to examine in turn. Those complaints are based on (i) the incorrect inclusion within the scope of the single and continuous infringement of ‘local responses to local conditions’ and contacts within industry bodies outside the EEA, (ii) the Commission’s alleged failure to distinguish between the conduct of the participants in the ‘real cartel’ and that of the other incriminated carriers, and (iii) the Commission’s alleged failure to examine the credibility of the various leniency statements.

(i) The incorrect inclusion within the scope of the single and continuous infringement of ‘local responses to local conditions’ and contacts within industry bodies outside the EEA

398 As a preliminary point, it should be observed that, as the parties agree, the existence of a ‘central coordination mechanism’ is not a factor which must be demonstrated in order to prove the existence of the single and continuous infringement or to establish that both contacts at head-office level and local contacts fall within its scope.

399 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 (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).

400 In the present case, in recitals 872 to 883 of the contested decision, the Commission relied on six factors to conclude that the elements relating to the FSC, the SSC and the refusal to pay commission all formed part of a single infringement. When examining one of the factors at issue, namely the single anticompetitive aim, in recital 876 of that decision, the Commission indicated the following:

‘While in some cases coordination of the FSC and the SSC took place at local level and may have given rise to local variations regarding the amount and timing of surcharges, the object remained the same, namely to eliminate competition among carriers with respect to those surcharges …’.

401 It is to no avail that the applicant argues that the local contacts referred to in the contested decision are merely ‘local responses to local conditions’.

402 As is apparent from paragraphs 137, 139 to 147, 317 and 318 above, the surcharges and the refusal to pay commission were measures of general application which were intended to be applied on all routes, on a worldwide basis and application of which was carried out in the context of a multi-level system, both central and local, described in recitals 109, 110, 111, 876, 889 and 1046 of the contested decision, as well as in footnote 1323 thereto. It is thus apparent from those recitals and from that footnote that the local contacts were intended to implement, at local level and often via local associations of carrier representatives, the guidelines laid down at head-office level.

403 As the Commission stated in footnote 1323 to the contested decision, the local contacts indeed took account of ‘the local market conditions or regulations’. Those contacts were not, however, purely prompted, encouraged or required by local regulations and did not relate exclusively to legitimate business issues or local issues. First, local staff received instructions from their head office regarding the implementation of the surcharges and reported to it (see, for example, recitals 171, 226, 233, 284, 381, 584 and 594). Local staff were, moreover, constrained by the decisions taken at head-office level. Thus, in recital 237 of the contested decision, reference is made to an internal email in which a Qantas employee reported that almost every carrier in Hong Kong had indicated their intention to follow CPA, but that Qantas and several of the incriminated carriers had expressed that they had to seek instructions from their head office before doing the same. In recital 295 of the contested decision, reference is made to the minutes of the BAR CSC meeting on 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 the local CPA manager in Belgium, from which it is apparent that SIA ‘claimed initially that [it would also increase the FSC on 1 October 2004] but then were recalled by [its head office] to go for [4 October 2004]’, which had previously been the subject of several contacts at head-office level (recitals 406, 410 and 411).

404 Second, it is apparent from the contested decision that coordination at local level often followed immediately on from announcements made at head-office level. By way of illustration, following Lufthansa’s announcement regarding the introduction of the FSC on 28 December 1999 (recital 138), 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 on the same day by contacts in Canada (recital 291) and Thailand (recital 298), and in Singapore on 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).

405 It follows that the applicant has failed to demonstrate that the local contacts did not, as a matter of principle, form part of the same ‘overall plan’ as the other contacts at issue, because their identical object distorts competition in the internal market. In so far as the applicant disputes the inclusion of specific local contacts within the scope of the single and continuous infringement, its arguments will be examined in connection with the second part of the present plea.

406 As regards the contacts within ‘legitimate industry bodies’ outside the EEA, it must be observed that the applicant does not explain, in connection with this part of the plea, why it considers that those contacts were ‘entirely lawful’. If that argument must be understood as meaning that those contacts related exclusively to routes which allegedly fell outside the Commission’s jurisdiction, it must be observed that it has already been examined and rejected above, in connection with the first part of the fourth plea.

407 If that argument must be understood as meaning that the holding of meetings or discussions within a ‘legitimate industry body’ is such as to affect the assessment of its lawfulness in the light of Article 101 TFEU, it must be stated that the applicant is mistaken. It should be borne in mind that, according to its very wording, Article 101 TFEU applies to agreements between undertakings, concerted practices and decisions of associations of undertakings. The legal framework within which such agreements are concluded, such concerted practices occur and such decisions are taken, and the classification given to that framework by the various national legal systems, are irrelevant as far as the applicability of the EU rules on competition, in particular Article 101 TFEU, are concerned (judgment of 19 February 2002, Wouters and Others, C‑309/99, EU:C:2002:98, paragraph 66).

408 If, lastly, the present argument must be understood as meaning that the contacts which took place within ‘legitimate industry bodies’ outside the EEA had no anticompetitive object or did not form part of the single and continuous infringement, it must be stated that it overlaps with the second part of the present plea and will be examined in that context.

409 It follows that the applicant has failed to demonstrate that the contacts within industry bodies outside the EEA did not, as a matter of principle, form part of the same ‘overall plan’ as the other contacts at issue, because their identical object distorts competition in the internal market. In so far as the applicant disputes the inclusion of specific local contacts within the scope of the single and continuous infringement, its arguments will be examined in connection with the second part of the present plea.

410 The present complaint must therefore be rejected.

(ii) The Commission’s alleged failure to distinguish between the conduct of the participants in the ‘real cartel’ and that of the other incriminated carriers

411 For the purposes of applying Article 101(1) TFEU, it is sufficient that the object of an agreement or concerted practice should be to restrict, prevent or distort competition irrespective of the actual effects of that agreement or concerted practice (see paragraphs 234 and 235 above). Consequently, in the case of agreements or concerted practices reached at meetings of competing undertakings, that provision is infringed where those meetings have such an object and are thus intended to organise artificially the operation of the market. In such a case, the liability of a particular undertaking in respect of the infringement is properly established where it participated in those meetings with knowledge of their object, even if it did not proceed to implement any of the measures agreed at those meetings (judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 145).

412 Thus, to prove that that undertaking participated in the infringement, it is sufficient for the Commission to show that it participated in meetings with an anticompetitive object without manifesting its opposition. It is then for that undertaking to put forward evidence to establish that its participation in those meetings was without any anticompetitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (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 81).

413 However, the degree or nature of that undertaking’s participation in the infringement is not relevant for the purposes of establishing its liability and must be taken into consideration only when assessing the gravity of the infringement and determining the amount of the fine (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).

414 The reason for this is that, having participated in such meetings without publicly distancing itself from what was discussed, that undertaking has given the other participants to believe that it subscribed to what was decided there and would comply with it. A party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery. That complicity constitutes a passive mode of participation in the infringement which is therefore capable of rendering the undertaking liable (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, paragraphs 82 and 84).

415 The fact that an undertaking does not act on the outcome of those meetings is not such as to relieve it of responsibility, unless it has publicly distanced itself from what was agreed at those meetings (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 85).

416 That case-law applies, mutatis mutandis, to the sending and receiving of electronic communications (see, to that effect, judgment of 21 January 2016, Eturas and Others, C‑74/14, EU:C:2016:42, paragraphs 46 to 49).

417 In the present case, the applicant does not dispute that the object of the single and continuous infringement was to restrict competition between carriers in relation to the application of surcharges (see, inter alia, recitals 879, 903, 909 and 1030 of the contested decision).

418 In recitals 719 and 720 of the contested decision, the Commission cited several items of evidence which, in its view, tended to indicate that the applicant had for a period of approximately six years received emails and participated in meetings the object of which related to the surcharges without ever distancing itself publicly from them or reporting the content thereof to the competent authorities.

419 Therefore, even if the applicant were correct to interpret that evidence as meaning that its role in the single and continuous infringement was purely passive, the Commission cannot be criticised for holding it liable for the single and continuous infringement in the same way as the other incriminated carriers, whose role may have been active or more significant.

420 At most, it was for the Commission, in accordance with the case-law cited in paragraph 413 above, to examine the nature and degree of the applicant’s participation in the single and continuous infringement when setting the amount of the fine.

421 That is precisely what the Commission did in recitals 1258 and 1259 of the contested decision, where it distinguished between the incriminated carriers according to their degree of participation in the single and continuous infringement when setting the amount of the fine and granted the applicant a 10% reduction in the basic amount of the fine on that basis.

422 Moreover, it must be observed that, as is apparent from recital 1247 of the contested decision, the applicant’s claim that it confined itself to a purely passive role in the cartel at issue is unfounded. It is apparent from recitals 719 and 720 of the contested decision that the applicant itself contacted other carriers as regards the FSC (recital 161) and provided other carriers with information concerning the level and methodology of its FSC (see, inter alia, recitals 145, 234, 291, 564 and 575), and concerning its SSC (recital 612).

423 In the light of the foregoing, the Commission cannot be criticised for having failed to distinguish between the conduct of the participants in an alleged ‘real cartel’ and that of the other incriminated carriers.

(iii) The Commission’s alleged failure to examine the credibility of the various leniency statements

424 It is settled case-law that there is no provision or general principle of EU law that prohibits the Commission from relying, as against an incriminated undertaking, on statements made by other undertakings involved in the infringement. Such statements cannot therefore be regarded as devoid of probative value solely on the ground they were made pursuant to the Leniency Notice (see, to that effect, judgment of 16 September 2013, Nynäs Petroleum and Nynas Petróleo v Commission, T‑482/07, not published, EU:T:2013:437, paragraph 189 and the case-law cited).

425 On the contrary, where a person admits that he committed an infringement and thus admits the existence of facts going beyond those which could be directly inferred from documentary evidence, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person has resolved to tell the truth (see judgment of 29 February 2016, Kühne + Nagel International and Others v Commission, T‑254/12, not published, EU:T:2016:113, paragraph 151 and the case-law cited).

426 Some caution as to the evidence provided voluntarily by the main participants in a cartel is certainly understandable, since they might tend to play down the importance of their contribution to the infringement and maximise that of others. Nonetheless, given the inherent logic of the procedure provided for in the 2002 Leniency Notice, the fact of seeking to benefit from the application of that notice in order to obtain a reduction in the fine does not necessarily create an incentive for the other participants in the cartel in question to submit distorted evidence (see judgment of 16 September 2013, Nynäs Petroleum and Nynas Petróleo v Commission, T‑482/07, not published, EU:T:2013:437, paragraph 190 and the case-law cited).

427 Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the undertaking seeking to benefit, and thereby jeopardise its chances of benefiting fully under the 2002 Leniency Notice (see judgment of 16 September 2013, Nynäs Petroleum and Nynas Petróleo v Commission, T‑482/07, not published, EU:T:2013:437, paragraph 191 and the case-law cited).

428 In recitals 1306 to 1389 of the contested decision, the Commission granted the incriminated carriers that had applied for leniency a reduction of at least 10% in the amount of the fine. In order to do so, the Commission found that those carriers had provided significant added value, strengthening its ability to prove various elements of the cartel at issue or even their own participation therein. The Commission even expressly found that the statements made by Martinair (recitals 1307 and 1310), Japan Airlines (recital 1318), AF-KLM (recital 1327), CPA (recital 1335) and Lan (recital 1343) were ‘self-incriminating’.

429 It follows that, in the absence of any indication to the contrary, the Commission was entitled to consider the leniency statements to be credible and to rely on them for the purposes of establishing the existence of the single and continuous infringement. Moreover, the applicant has failed, in this part of the plea, to adduce the slightest evidence to show that the Commission had failed to take account of indications of that kind.

430 The present complaint must be rejected, as must the present part of the plea in its entirety.

(b) The second part of the plea, alleging that the Commission failed to prove, by means of credible evidence, the facts alleged against the applicant

431 The applicant submits that the Commission failed to adduce credible and sufficient evidence of the existence of the single and continuous infringement and of the applicant’s participation in it. Moreover, according to the applicant, the Commission made no assessment of the relevance or probative value of the evidence which it used, but merely listed them.

432 In the first place, as regards the existence of the single and continuous infringement, the applicant submits that the Commission relies on contacts which have no geographic coherence or relate to lawful industry association activities. It also relies on mass emails sent out unilaterally informing their recipients of surcharge increases that had already been publicly announced. Furthermore, no evidence of implementation of the FSC increase is adduced in connection with a ‘follower system’ at local level described inter alia in recital 119 of the contested decision. The applicant also complains that the Commission did not identify any ‘core’ or a ‘plan’ and relied on contacts relating to routes which, in the relevant periods, fell outside its jurisdiction. Lastly, the contested decision does not contain the reasoning which led the Commission to conclude, on the basis of the alleged body of evidence, that there was a single and continuous infringement.

433 As regards the applicant’s participation in the single and continuous infringement, it submits that, apart from the fact that the Commission distorted the content of the evidence against it, the Commission does not adduce evidence that it adhered to the ‘follower system’. Moreover, the Commission has not demonstrated, on the basis of the contacts in which the applicant participated, that it had the requisite awareness and intention to find that it participated in the single and continuous infringement. In particular, not a single contact involved the applicant’s high-level executives. Lastly, the applicant claims that no information provided in connection with its leniency application is incriminating, either with regard to itself or to the other incriminated carriers.

434 In the second place, the applicant also maintains that the documents on the basis of which the Commission established its involvement in the three elements of the single and continuous infringement prove nothing at all. In that regard, the applicant takes issue with the ‘evidential techniques’ used by the Commission, which amounted to relying on lawful conduct, in respect of which the Commission lacked jurisdiction, to prove unlawful conduct and using against the applicant documents which it nevertheless regarded as insufficient to demonstrate the liability of the non-incriminated carriers. The applicant also submits that the Commission relied on documents that could not be used in evidence against it because they were not drawn to its attention during the administrative procedure, or because the document was created by a leniency applicant in violation of the terms of the grant of leniency. It also refers to documents which the Commission misconstrued or whose subject matter the Commission misunderstood. In addition, the applicant argues that its knowledge of or participation in certain communications and meetings is unproven. Lastly, it insists on the fact that certain correspondence was sent to it without being solicited and that it did not reply to it.

435 The Commission disputes the applicant’s line of argument.

(1) Admissibility of Annex A.14

436 As a preliminary point, it is necessary to rule on the plea of inadmissibility raised by the Commission – and disputed by the applicant – against Annex A.14, in so far as it allegedly contains matters of fact and law which are not indicated, at least in summary form, in the application.

437 In that regard, it should be borne in mind that, whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with Article 76(1)(d) of the Rules of Procedure, must appear in the application (judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 94).

438 Furthermore, as recalled in paragraph 392 above, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function.

439 Thus, an annex to the application may be taken into consideration only in so far as it supports or supplements the arguments expressly set out by the applicant in the body of the application and in so far as it is possible for the Court to determine precisely what are the matters contained in the annex that support or supplement those arguments (see, to that effect, judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 99).

440 In the present case, Annex A.14 is entitled ‘Analysis of each recital alleging evidence against [the applicant]’. That annex consists of a 238-page line of argument, set out recital by recital, intended to demonstrate that the evidence on which the recital in question is based has no probative value.

441 First of all, the application refers systematically to that annex in a footnote with the standard phrasing ‘Reference is made to the detailed analysis of the documents relied on in [recital] … at Annex A.14. …’. Each reference is made as from the first reference to the recital concerned in connection with this part of the plea. Those references do not relate specifically to an argument made in the application with regard to a recital, but to the recital as such. They invite the Court to acquaint itself with the ‘detailed analysis’ of those recitals set out in that annex, consisting of a set of arguments, in fact and in law, intended to call into question the probative value of the documents set out in those recitals.

442 Thus, the applicant fails to link the references made to Annex A.14 to an argument expressly set out in the body of the application. In addition, the references themselves, in so far as they refer on each occasion to a part of Annex A.14 which brings together, over several pages, all the arguments of fact and law directed against the probative value of the evidence set out in a recital of the contested decision, lead the Court to seek and identify, in that annex, the arguments on which it may consider the action to be based.

443 Lastly, Annex A.14 contains numerous arguments which are new in relation to those expressly set out in the application. By way of example, the applicant disputes, in Annex A.14.6, whether the internal emails on which recital 218 of the contested decision is based attest to a direct contact between Lufthansa and itself, relying on a passage from those emails which is not cited either in that decision or in the application. It also disputes whether those emails relate to routes from and to the EEA. Lastly, it also refers to the fact that that recital was not relied on against Lufthansa in the contested decision. However, none of those arguments is set out, in the application, in connection with recital 218.

444 In accordance with the case-law referred to in paragraphs 437 to 439 above, it is only in so far as Annex A.14 supports or supplements the arguments expressly set out by the applicant in the body of the application, and in so far as it is possible for the Court to determine precisely what are the matters contained in it that support or supplement those arguments, that it will be taken into account.

(2) Substance

445 The second part of the present plea consists of two sets of arguments. One seeks to challenge the establishment, in the contested decision, of the single and continuous infringement and the applicant’s participation therein in the light of arguments calling into question, in general, the approach taken by the Commission in the contested decision. The other seeks to challenge the probative value of each of the items of evidence relied on against the applicant in recitals 719, 720 and 882 of the contested decision. Those two sets of arguments, which the Commission disputes, should be examined in turn.

(i) The general criticism of the approach taken by the Commission

446 The arguments put forward by the applicant are of two kinds, concerning, first, the conditions for establishing the existence of the single and continuous infringement and, second, the conditions for establishing the applicant’s participation therein.

447 First, as regards the existence of the single and continuous infringement, it must be stated, first of all, that the assertion that the conduct within industry associations, in particular within the BAR CSC, was entirely lawful and corresponded to lobbying and representation, apart from being entirely unsubstantiated, has no factual basis. Thus, by way of example, in recital 300 of the contested decision, it is stated that a British Airways employee reported, in an internal email, on the ‘BAR India meeting 3 [March]’ concerning the FSC on perishable goods, noting that ‘it was agreed that [the] FSC will remain RS 2.25/kg’. In recital 395 of that decision, it is also stated that, at a meeting of the Singapore BAR CSC on 23 July 2004, an SAC manager asked other carriers, concerning the FSC surveys, to ‘exercise some level of cooperation for future exercises, in view of the need for greater transparency with regard to these surcharges’. As regards recital 663 of that decision, reference is made therein to an email from Martinair to the members of the Hong Kong BAR CSC in which Martinair suggested ‘as the lobbying [directed at the Hong Kong Civil Aviation Department] is effective … to hold a BAR meeting next week to discuss further steps with other carriers on how to achieve all [carriers] charge the same SSC in the market’.

448 Furthermore, in so far as the applicant complains that the Commission relied on emails informing their recipients of surcharge increases that had already been publicly announced, it must be borne in mind that the exchange of publicly available 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).

449 However, it is apparent from recitals 118, 121, 125, 706 and 848 of the contested decision that such contacts served to underpin such an arrangement.

450 Similarly, in so far as the applicant complains that the Commission failed to identify the ‘core’ of the cartel at issue, it must be stated that, as is apparent from paragraph 413 above, the Commission was in no way required to make a distinction between the incriminated carriers on the basis of the degree of their participation in the single and continuous infringement, since that fact could be taken into consideration only when assessing the gravity of the infringement and determining the amount of the fine. Accordingly, the applicant cannot moreover rely, as it does, on the failure to identify such a core in order to dispute the existence of an overall plan pursued by the single and continuous infringement.

451 As regards the calling into question of the ‘geographic coherence’ of the evidence on which the finding of the existence of the single and continuous infringement is based, assuming that the applicant intends here to raise against the Commission the fact that it found contacts only in certain third countries, it must be stated, first, that the Commission cannot be required to adduce evidence relating to each country around the world; second, that the general and worldwide aspect of the application of the FSC and the SSC is apparent from the elements of the contested decision referred to in paragraphs 141 to 143 above; and, third, that it is apparent from paragraphs 399 to 405 above that the contested decision contains many items of evidence which, taken together, attest to the existence of a multi-level system, both central and local, involving in particular the following up at local level of instructions formulated at central level which are themselves the result of coordination at head-office level.

452 In addition, in so far as the applicant takes issue with the Commission for relying on contacts relating to routes which, in the relevant periods, fell outside its jurisdiction, reference must be made to paragraphs 302 to 322 above, by which the Court rejects such an argument.

453 As for the assertion that no evidence has been adduced of the implementation of the increase in the FSC in connection with the ‘follower system’, that assertion has no basis in fact. By way of illustration, recital 392 of the contested decision reads as follows:

‘The … local manager [of Swiss] in Japan sent an internal email on 10 June 2004 to the head office announcing that the FSC will be increased ex Japan. He states that “[I am] very [sorry] that it had not been implemented due [to the] fact that [the] national carrier did not make [any] action and other carriers were also waiting [for] someone to start. We European [carriers] had talked with [Japan Airlines] but they were not making moves! Now [Japan Airlines] had announced to [the] market and after that [everyone] started the action. We have filed to [the Ministry of Transport] with [the] increase …”’

454 That item of evidence supports the finding of a ‘follower system’ in recital 119 of the contested decision, which, according to the Commission, was often applied concerning the implementation of the FSC at local level and consisted of the leading carrier on particular routes or in certain countries announcing the change first and then being followed by the other carriers.

455 Lastly, in so far as the applicant criticises the Commission for not setting out in the contested decision the reasoning which led it to conclude, on the basis of the body of evidence on which it relies, that there was a single and continuous infringement, it is appropriate to refer, as regards the principles, to the case-law relating to the obligation to state reasons, cited in paragraphs 155 to 157 above.

456 In the present case, after recalling, in recitals 833 to 845 of the contested decision, the principles applicable to the establishment of an agreement or a concerted practice within the meaning of Article 101 TFEU, the Commission applied those principles to the instances of conduct at issue relating, respectively, to the FSC, the SSC and the refusal to pay commission, referring to the sections and recitals of the contested decision in which the evidence supporting its reasoning is reproduced, as is apparent from recitals 846 to 859 of that decision. It concluded, in recital 860, that ‘the body of evidence as a whole prove[d] the existence of the overall scheme described in recitals [846 to 859] that [could be qualified] as an agreement and/or concerted practice between undertakings within the meaning of Article 101 of the TFEU’. It is apparent from footnote 1289 to that decision that those considerations must be understood as also covering Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement.

457 In recitals 862 to 902 of the contested decision, the Commission recalled the principles applicable to establishing a single and continuous infringement and concluded that there was a single and continuous infringement (see paragraphs 161 to 164 above).

458 In particular, in recitals 872 to 883 of the contested decision, the Commission relied on six factors to conclude that the instances of conduct at issue formed part of a single infringement. Those factors were, first, the existence of a single anticompetitive aim (recitals 872 to 876), second, the fact that those instances of conduct concerned a ‘single product/service’, namely ‘the provision of [freight] services and the pricing thereof’ (recital 877), third, the fact that the undertakings involved in the various instances of conduct at issue were the same (recital 878), fourth, the nature of the infringement (recital 879), fifth, the fact that the discussions in which the incriminated carriers participated took place in parallel (recital 880) and, sixth, the involvement of the majority of the incriminated carriers in the three elements of the single and continuous infringement (recitals 881 to 883). In recitals 885 to 898, it responded to the arguments put forward by the parties, including the applicant, during the administrative procedure.

459 It follows from the foregoing that the Commission set out to the requisite legal standard, in the contested decision, the matters of fact and of law which led it to find that there was a single and continuous infringement, thus enabling the applicant to understand them and to challenge them and the Court to review them, as is moreover demonstrated by the arguments which the applicant develops in support of the present plea.

460 Second, as regards its participation in the single and continuous infringement, the applicant claims, first of all, that the Commission ‘engaged still less’ in demonstrating that the applicant had the requisite awareness and intention to find that it participated in the single and continuous infringement. It disputes whether such awareness and such intention existed bearing in mind that none of the contacts at issue involved its high-level executives – unlike several other incriminated carriers, including those belonging to the alleged ‘core’. In that context, it also submits that proof of its membership of the ‘follower system’ has not been adduced.

461 In that regard, the Court has previously held that, for the purposes of finding an infringement of EU competition law, any anticompetitive conduct on the part of an employee is attributable to the undertaking to which he or she belongs and that undertaking is, as a matter of principle, held liable for that conduct (judgment of 21 July 2016, VM Remonts and Others, C‑542/14, EU:C:2016:578, paragraph 24). The involvement of the partners or the management staff of the undertaking is not required in order to be able to hold it liable for such conduct (see, to that effect, judgment of 7 June 1983, Musique Diffusion française and Others v Commission, 100/80 to 103/80, EU:C:1983:158, paragraph 97).

462 In the present case, it is apparent from the contested decision that the contacts made in the context of the single and continuous infringement ‘took place at various levels in the undertakings concerned’ (recital 107) and that ‘senior management in the head offices of a number of airlines were … involved in [or] informed about [competitor contacts]. In the case of the surcharges, responsible head office employees were in contact with each other when a change to the surcharge level was imminent’ (recital 110).

463 Thus, it follows from the foregoing that proof of the participation in the cartel of the applicant’s high-level executives, first, was not a prerequisite for establishing its participation in the single and continuous infringement and, second, did not reflect the mechanisms of the cartel at issue that were common to all of the incriminated carriers. As regards the latter aspect, it is apparent from paragraph 462 above that the Commission stated that senior management of ‘a number of’ carriers were involved in one way or another in that cartel, which implies that it was not the case for all of the incriminated carriers. The alleged fact that the incriminated carriers that were members of the alleged ‘core’ were represented inter alia by their ‘bosses’ is irrelevant for the purposes of establishing the applicant’s participation. As recalled in paragraph 450 above, it is capable of affecting, as the case may be, only the assessment of the gravity of the respective conduct of the incriminated carriers when determining the amount of the fine to be imposed on them.

464 As regards the alleged failure to prove that the applicant had participated in the ‘follower system’, it must be stated that that claim, which is in any event unsubstantiated, has no factual basis. Thus, it is apparent, for example, from recital 145 of the contested decision, which reproduces the content of an email of 10 January 2000, that the members of the ACCS, including the applicant, ‘agreed to apply [the] same policy as [Swiss Cargo]’ in respect of the FSC in Switzerland. Subsequently, the ACCS chairman informed its members, including the applicant, of announcements of increases in the FSC of Swiss (and sometimes other carriers), asking them about their intentions in that regard (see recitals 501, 502, 534, 561 and 562). The applicant responded to those requests.

465 Even if the present argument were to be interpreted as being directed also against the failure to state reasons, in the contested decision, concerning the applicant’s intentional contribution to the overall plan pursued by the single and continuous infringement and its proved or presumed awareness of the offending conduct of the other participants in which it did not participate directly, it must also be rejected for the same reasons as those set out in paragraphs 161 to 165 above.

466 Lastly, in so far as the applicant calls into question the incriminating nature of the documents and statements submitted by it in connection with the submission of its leniency application, it must be stated that it merely makes general and unsubstantiated assertions.

467 In the light of the foregoing, the first series of arguments put forward in support of this part of the plea must be rejected.

(ii) The lack of probative value of the evidence relied on against the applicant in the contested decision

468 The applicant disputes the probative value of each of the items of evidence relied on against it in the contested decision in order to establish its participation in the elements of the single and continuous infringement relating to the FSC and the SSC, as well as its awareness of the conduct relating to the refusal to pay commission and the conduct of the other carriers in general.

– The evidence relating to the FSC

469 In the first place, the applicant disputes the probative value of the contacts in respect of which the Commission states, in recital 719 of the contested decision, that they attest to a ‘repeated exchange of pricing information by email [(recitals 234 and 492)]; repeated telephone discussions [(recitals 564 and 575)]; bilateral discussions with other carriers, in particular L[ufthansa] [(recitals 161, 218, 231, 249, 272, 274, 279, 283, 291, 303, 346, 358, 411, 446, 450, 482, 495, 555, 564 and 575)]’.

470 First, as regards the contacts referred to in recitals 234 and 492, the applicant’s arguments, put forward elsewhere in support of the present claim for annulment and already rejected by the Court, which allege, on the one hand, that the contact referred to in recital 234 concerned routes which, in the relevant periods, fell outside the Commission’s jurisdiction (see paragraphs 302 to 322 above) and, on the other, that the applicant did not react to that contact (see paragraphs 418 and 419 above), must be rejected. Similarly, the fact that the applicant, which acknowledges that recital 492 ‘could only relate to [freight] services between EU airports’, did not operate on those routes has no bearing on the probative value of the contacts referred to in that recital (see paragraph 311 above).

471 The fact that the contacts referred to in recitals 234 and 492 of the contested decision involved other carriers which were not held liable for the single and continuous infringement is irrelevant. 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 institution, viewed as a whole, and whose various elements are able to reinforce each other, 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).

472 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 ‘the recitals to which reference [was] made [formed] part of the overall body of evidence [it relied] on and [had] to be evaluated in this context’.

473 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 applicant.

474 Lastly, the claim that the chain of emails referred to in recital 492 of the contested decision did not concern freight or an exchange of information on freight rates remains to be examined. It is apparent from that recital that the chain of emails concerned the fare offer of a small airline which did not charge the FSC. Several of the carriers involved in the chain of emails described the advertisement of the offer on the website in question as ‘misuse’. The reference, in recital 492, to the contact made by one of the carriers denouncing that misuse with that airline and to the fact that that airline was ‘sent away’ confirms that the ‘misuse’ referred to did indeed relate to that airline’s offer and not to the ‘value of an internet web portal’, as the applicant claims. The applicant’s claim, which is in any event unsubstantiated, thus has no factual basis.

475 Second, as regards the contacts referred to in recitals 564 and 575, the applicant submits, first, that one of the emails referred to in the first of those recitals and the contact underpinning the second of those recitals cannot be relied on against it in so far as it was not in a position to acquaint itself with them during the administrative procedure. When questioned in the context of the measures of organisation of procedure, the Commission stated, however, that all the emails referred to in recital 564 were in the file to which the applicant had access during the administrative procedure and produced the documents in question (Annex F.4), without being contradicted by the applicant. As regards recital 575, while the email referred to therein is not included in the file, Lufthansa’s leniency statement describing it was by contrast accessible to the applicant, and the contested decision, in that recital, refers only to the latter document. Consequently, the applicant cannot maintain that the contacts referred to in recitals 564 and 575 could not be relied on against it.

476 In so far as the applicant also claims that the contact referred to in recital 575 could not be relied on against it, on the ground that the Commission could not both attribute some probative value to that contact and, at the same time, refrain from withdrawing Lufthansa’s immunity from fines, in so far as that contact attests to Lufthansa’s continued participation in the single and continuous infringement in breach of the conditions laid down in point 11(b) of the 2002 Leniency Notice, it must be noted that the applicant is mistaken.

477 In that regard, it should be noted that the Court has previously held that an undertaking which decides to submit a statement with a view to obtaining a reduction in the amount of the fine is aware of the fact that although a reduction will be granted to it only if, in the Commission’s opinion, the conditions for a reduction referred to in the notice are satisfied, the statement will in any event form part of the file and may be used in evidence (judgment of 12 December 2012, Novácke chemické závody v Commission, T‑352/09, EU:T:2012:673, paragraph 111).

478 Admittedly, in reaching that conclusion, the Court relied on point 31 of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the 2006 Leniency Notice’), which replaced the 2002 Leniency Notice and provides that ‘any statement made vis-à-vis the Commission in relation to this notice, forms part of the Commission’s file and can thus be used in evidence’.

479 However, it is apparent from point 37 of the 2006 Leniency Notice that point 31 of that notice is applicable to leniency applications pending at the time that notice entered into force (see, to that effect, judgment of 12 December 2012, Novácke chemické závody v Commission, T‑352/09, EU:T:2012:673, paragraphs 27 and 111). That is the case with the application submitted by Lufthansa to the Commission on 7 December 2005. That application was still pending on 8 December 2006, the date on which the notice in question entered into force.

480 Moreover, according to point 33 of the 2002 Leniency Notice, ‘any written statement made vis-à-vis the Commission in relation to this notice, forms part of the Commission’s file’. Accordingly, such a statement may be used as evidence by the Commission. The wording of point 31 of the 2006 Leniency Notice thus does no more than explain the consequences which necessarily follow from keeping that statement in the file.

481 The foregoing considerations apply equally in the case of an application for immunity from fines, since the abovementioned points of the 2002 and 2006 Leniency Notices apply without distinction to all applications made under the Commission’s leniency programme.

482 In the light of the foregoing, it must be held that Lufthansa’s failure to comply with the condition laid down in point 11(b) of the 2002 Leniency Notice, even if it were proved, is not such as to deprive the Commission of the possibility of using the written statements made by Lufthansa in connection with its leniency application.

483 Lastly, as regards the scope of the contacts referred to in recitals 564 and 575 of the contested decision and disputed by the applicant, it is apparent from one of the emails referred to in the first of those recitals that Lufthansa ‘received confirmation that [the applicant] would follow its methodology [as regards the FSC] until the end of 2005. [A (Lufthansa)] recalls that he spoke to [B (the applicant)] on this point’. Accordingly, that email establishes the existence of contacts between Lufthansa and the applicant and confirms the intention expressed by Lufthansa, in the other email referred to in recital 564 and which is earlier by a few days, that the latter will ‘call in to [the applicant] to see if [it is applying its FSC methodology] or [if it is] “adjusting” to the AF/KL[M] level’. As regards recital 575 and in so far as the applicant merely claims that it is based only on a ‘lawyer narrative’, it should be noted that, for the reasons set out in paragraphs 424 to 430 above, the Commission was entitled to rely on that statement, which establishes the existence of an exchange of information concerning the FSC between A and B, and the applicant has not put forward any circumstances capable of casting doubt on its credibility.

484 Third, as regards the contacts referred to in recitals 161, 218, 231, 249, 272, 274, 279, 283, 291, 303, 346, 358, 411, 446, 450, 482, 495, 555, 564 and 575, cited in footnote 942 to the contested decision, the applicant claims, first of all, that 10 of those contacts (recitals 161, 218, 231, 249, 272, 274, 279, 283, 291 and 303) are devoid of probative value in so far as they relate to routes which, in the relevant periods, fell outside the Commission’s jurisdiction. That argument must be rejected on the same grounds as those set out in paragraphs 302 to 322 above.

485 The applicant adds, without substantiating its arguments, that the contacts referred to in recitals 231 and 283 of the contested decision concerned only routes between the United States and Canada. Given that the surcharges were found in recital 889 of that decision to be generally applicable and failing any evidence to the contrary, it cannot be held, solely on the basis of the applicant’s assertion, that EEA routes were excluded from the contacts at issue.

486 In so far as the applicant claims, in addition, that the emails referred to in recitals 274 and 279 of the contested decision must be excluded from the body of evidence on the ground, first, that it was merely a passive recipient of those emails and, second, that those emails were addressed to other carriers which were not held liable for the single and continuous infringement, it must be stated that the applicant is mistaken, for the reasons set out in paragraphs 411 to 419 and paragraphs 471 to 473 above, respectively.

487 Furthermore, it is to no avail that the applicant relies on the public nature of the information disseminated in the emails referred to in recitals 274 and 279 of the contested decision. First, it is apparent from recitals 118, 121, 125, 706 and 848 of the contested decision that those emails served to underpin an anticompetitive arrangement, in accordance with the case-law set out in paragraph 448 above. That is confirmed by recital 482 of the contested decision, in which the Commission cited the reply of another carrier to a communication from Lufthansa of the same type as that cited in recitals 274 and 279. In that reply, that carrier informed Lufthansa that ‘we have instructed our offices to implement the increase accordingly’. Second, it should be observed that, in those emails, Lufthansa did not merely communicate publicly available information, but, on the contrary, sent collective emails, thus revealing to all the recipients the identity of the carriers concerned.

488 Next, in so far as the applicant raises the same arguments as those examined in paragraphs 486 and 487 above in relation to the contacts referred to in recitals 346, 411, 446, 450, 482 and 495 of the contested decision, they must be rejected on the same grounds. At most, it can be found, as the applicant notes, that they are not ‘bilateral discussions’, as stated in recital 719 of the contested decision, but emails sent by Lufthansa to a large number of recipients. That fact cannot, however, affect their probative value.

489 Lastly, as regards the contacts referred to in recitals 358, 555, 564 and 575 of the contested decision, it must first be noted that the Court has already ruled, in paragraphs 475 to 483 above, on the probative value of the contacts referred to in recitals 564 and 575, and the applicant does not put forward any new arguments in that regard in this part of its pleadings. Next, in so far as the applicant maintains that the contact referred to in recital 358 cannot be taken into account on the ground that it was ‘an unsolicited email from [Lufthansa] attaching a public announcement to which [it] did not respond’, it should be borne in mind, first, that a passive mode of participation in the single and continuous infringement is capable of rendering the applicant liable (see paragraphs 411 to 419 above) and, second, that it is apparent from the contested decision that the dissemination by Lufthansa of publicly available information to other carriers served to underpin the anticompetitive arrangement in question (see paragraph 487 above).

490 Lastly, as regards the line of argument directed against the probative value of the contact referred to in recital 555, based on the fact that that contact related exclusively to routes between Switzerland and Canada, which fall outside the Commission’s jurisdiction, it must be stated that nothing in the description of that contact in recital 555 allows such a conclusion to be drawn. The argument, also put forward by the applicant, that it has not been proved that it was aware of that contact, namely an internal email sent by another carrier, is irrelevant, since the Commission is entitled to rely on indirect evidence of anticompetitive contacts, such as the email at issue, in which a carrier reports internally on a contact made with another carrier.

491 In the second place, the applicant disputes the probative value of the contacts in respect of which the Commission states, in recital 719 of the contested decision, that they attest to ‘participation in multilateral meetings involving numerous carriers [(recitals 173, 174 and 292)]’.

492 As regards the contacts referred to in recitals 173 and 174 of the contested decision, the Court must reject the applicant’s argument that those contacts relate to routes which, in the relevant periods, fell outside the Commission’s jurisdiction – a claim which has not, moreover, been established (see paragraphs 309 and 310 above). As regards the fact that other carriers which were not held liable for the single and continuous infringement also participated in those contacts, it must be rejected as irrelevant, as is apparent from paragraphs 471 to 473 above.

493 As regards the contact referred to in recital 292 of the contested decision, the applicant repeats the same arguments alleging, on the one hand, that that contact relates to routes which, in the relevant periods, fell outside the Commission’s jurisdiction and, on the other, that another carrier which was not held liable for the single and continuous infringement also participated in that contact. Those arguments must be rejected for the same reasons.

494 In the third place, the applicant disputes the probative value of the contacts in respect of which the Commission states, in recital 719 of the contested decision, that they attest to its ‘participation in the email correspondence concerning ACCS members’ intended action and future announcements concerning the FSC [(recitals 145, 182, 255, 501, 502, 534, 535, 561 and 562)]’.

495 The applicant again merely submits, on the one hand, that those contacts relate to routes which fell outside the Commission’s jurisdiction and, on the other, that other carriers which were not held liable for the single and continuous infringement also participated in those contacts. Those arguments must be rejected for the reasons set out, respectively, in paragraphs 302 to 322 and in paragraphs 471 to 473 above. Moreover, the applicant’s claim that the contacts at issue concerned only Canada-Switzerland routes is in no way substantiated, the fact that it operated only on the latter category of routes and not on EU-Switzerland routes being entirely irrelevant in that regard, for the reasons set out in paragraph 311 above.

496 In the fourth place, the applicant disputes the probative value of the contacts in respect of which the Commission states, in recital 719 of the contested decision, that they attest to ‘discussions and agreements about raising the FSC level and new trigger points within BAR CSC meetings in Hong Kong [(recitals 394 and 503)]’.

497 As regards the arguments directed against the probative value of the contact referred to in recital 394, none can succeed, whether the argument was based on the fact that other carriers which were not held liable for the single and continuous infringement also participated in that contact (see paragraphs 471 to 473 above), that the applicant did not respond to the email forming the contact at issue (see paragraphs 411 to 419 above), that it did not operate on certain categories of routes covered by that contact (see paragraph 311 above) or that that contact took place within a ‘legitimate industry body whose proceedings were totally transparent’ (see paragraph 407 above). Lastly, the assertion that that contact was ‘entirely anodyne … as far as [the applicant] is concerned’ is wholly unsubstantiated.

498 By contrast, it is apparent from the contact referred to in recital 503 of the contested decision that the applicant was not among the participants in the BAR CSC meeting on 11 July 2005, which the Commission acknowledges before the Court. Consequently, the contact referred to in recital 503 has, in the present case, probative value only in so far as it contributes to establishing that the BAR CSC served as a framework for discussions regarding the FSC level.

499 It follows from the foregoing that, of the evidence on which the Commission relied in recital 719 of the contested decision in order to establish the applicant’s participation in the element of the single and continuous infringement relating to the FSC, only the probative value of the contact referred to in recital 503 must be called into question. However, in so far as, first, 35 contacts may still be relied upon against the applicant in respect of the FSC and, second, the period and territory covered by the contact referred to in recital 503 are also covered by the contacts referred to in recitals 482, 495, 501, 502 and in recital 394, respectively, it must be held that the findings set out in paragraph 498 regarding recital 503 are not such as to call into question the finding that the applicant participated in the element relating to the FSC.

500 In the light of all of the foregoing, it must be held that the applicant has not shown that the Commission erred in finding that it participated in the element of the single and continuous infringement relating to the FSC.

– The evidence relating to the SSC

501 The applicant disputes the probative value of the contacts in respect of which the Commission states, in recital 720 of the contested decision, that they attest to ‘bilateral information exchanges with [British Airways and another carrier] [(recitals 591, 612 and 636)] and multilateral email exchanges [(recitals 585, 594 and 609)]; multilateral meetings [in] Hong Kong and in Germany [(recitals 634, 660 and 665)]’.

502 As regards the applicant’s line of argument directed against the contacts referred to in recitals 585, 591, 594, 609, 612, 636, 660 and 665 of the contested decision, alleging, first, that it did not operate on certain categories of routes covered by those contacts, second, that other carriers which were not held liable for the single and continuous infringement also participated in those contacts and, third, that those contacts concerned routes which, in the relevant periods, fell outside the Commission’s jurisdiction, it must be rejected for reasons similar to those set out in paragraphs 311, 471 to 473 and 302 to 322 above, respectively. Likewise, the fact that it did not reply to the emails referred to in recitals 594, 609, 660 and 665 does not mean that those emails cannot be relied upon against it (see paragraphs 411 to 419 above). Moreover, even if the applicant, which refers to other arguments set out in the application, intends to rely, as regards the meetings held within the BAR CSC in Hong Kong (recitals 660 and 665), on the ‘legitimate’ nature of the context in which they took place, it is sufficient to refer to the reasons set out in paragraph 407 above.

503 Next, it should be noted that, contrary to the applicant’s unsubstantiated assertion, there is nothing in the description in recitals 591 and 636 of the internal emails of the carrier at issue to support the inference that the exchanges thus reported were confined solely to the routes on which that carrier operated.

504 Furthermore, in so far as the applicant claims that recitals 591 and 636 were not relied on against other incriminated carriers even though they were mentioned in the contacts referred to therein, it must be borne in mind that the Court of Justice has repeatedly held that an undertaking on which a fine has been imposed for its participation in a cartel, in breach of the competition rules, cannot request the annulment or reduction of that fine, on the ground that another participant in the same cartel was not penalised in respect of a part, or all, of its participation in that cartel (see judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission, C‑615/15 P, not published, EU:C:2017:190, paragraph 38 and the case-law cited). That principle extends to a situation in which an undertaking, although not seeking to have the fine cancelled or reduced, is nevertheless liable to obtain an advantage from relying on that difference in treatment.

505 In the present case, the applicant relies on the fact that the two recitals at issue, which were relied on against it in the contested decision, were not relied on against several other incriminated carriers, and thereby seeks to have those recitals omitted from the body of evidence relied on against it. It follows that, in accordance with the principles referred to in paragraph 504 above, the present argument cannot succeed.

506 Lastly, in so far as the applicant disputes the probative value of recital 634 of the contested decision, it should be noted that that recital states as follows:

‘[C (one of the other carriers)] forwarded [a] newsflash to [D (Lan Cargo)] on 10 February 2006. [D] then forwarded the email internally on 11 February 2006 stating that [that first carrier’s] newsletter concerning the SSC following [Lufthansa] was attached. He added that there would be a meeting on Monday with [that first carrier], [the applicant], [another carrier], etc. in the office of [that first carrier].’

507 In that regard, the applicant’s argument that it was not aware of those emails or was not copied into them must be rejected at the outset. As stated in paragraph 490 above, the Commission is entitled to rely on indirect evidence of anticompetitive contacts, such as the second email at issue, in which a carrier reports internally on a contact with another carrier.

508 Similarly, the applicant’s claim that it did not participate in the meeting referred to in recital 634 of the contested decision is in no way substantiated, and in any event it can be inferred from the content of the second email at issue, produced by the Commission as an annex to its defence, that the holding of the meeting and the participation of the carriers whose presence was announced were certain from the point of view of the author of the email. The latter states that that meeting ‘will take place’ on the day, at the place and with the participants announced. In any event, the fact that the carriers in question intended to deal with the subject of the SSC with the applicant in itself constitutes an indication that the applicant participated in the element of the single and continuous infringement relating to the SSC (see, to that effect, judgment of 29 June 2012, GDF Suez v Commission, T‑370/09, EU:T:2012:333, paragraph 226).

509 As regards the object of the meeting, the applicant has failed to substantiate its assertion that ‘the context shows the object of the meeting was not to agree prices’. Moreover, as the Commission correctly notes, the reference to the meeting is found between two sentences referring to a ‘security surcharge’, which the applicant does not allege to be different to the SSC, while no other possible object of the meeting is apparent from that email.

510 Lastly, it is true, as the applicant observes, that recital 634 of the contested decision concerns contacts between representatives of carriers the head offices of which are all established outside the EEA, and thus a fortiori outside Germany. In the absence of other evidence to that effect, it cannot therefore be inferred that the contacts at issue reveal head-office involvement, as indicated in the wording of Section 4.4.2.4 of the contested decision, in which that recital is found. That fact does not negate the probative value of the contacts at issue with regard to the applicant, but merely justifies refraining from drawing inferences as regards the involvement of the applicant’s head office in the single and continuous infringement.

511 It has thus not been shown that the Commission erred in considering that all the evidence referred to in recital 720 of the contested decision contributed to establishing the applicant’s participation in the element of the single and continuous infringement relating to the SSC.

512 As stated in paragraph 510 above, the scope of recital 634 must nevertheless be qualified, in that it cannot establish the involvement of the applicant’s head office or that of the other parties to that exchange. However, it must be noted that, among the contacts relied on against the applicant in respect of the SSC, several are described in the contested decision as revealing head-office involvement (recitals 585, 591, 594, 609 and 612), without that assessment being effectively disputed.

513 In the light of all of the foregoing, it has not been established that the Commission erred in finding that the applicant participated in the element of the single and continuous infringement relating to the SSC.

– The evidence relating to the refusal to pay commission

514 The applicant disputes the probative value of the contacts in respect of which the Commission states, in recital 882 of the contested decision, that they prove that it was ‘aware of the discussions on [the refusal to pay commission] [(recitals 684, 686 and 687)]’.

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

516 To discharge that burden of proof, the Commission must adduce evidence sufficiently precise and consistent 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).

517 The Commission is not, however, required to show that the undertaking concerned was or ought to have been familiar with the detail of the concerted practices taking place in connection with the contacts at issue in which it did not participate. Nor is it 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).

518 The undertaking concerned must therefore merely 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).

519 In that regard, it must be specified that the mere fact that there is identity of object between an agreement in which an undertaking participated and a global cartel does not suffice for a finding that the undertaking participated in the global cartel. That is the case even where there are objective links between that agreement and the global cartel. It is only if the undertaking concerned knew or should have known when it participated in an agreement that in doing so it was joining in the global cartel that its participation in the agreement concerned can constitute the expression of its accession to that cartel (see, to that effect, judgment of 30 November 2011, Quinn Barlo and Others v Commission, T‑208/06, EU:T:2011:701, paragraphs 144 and 150 and the case-law cited).

520 In the present case, it should be noted that the Commission, in recital 882 of the contested decision, considered that the applicant could be held liable for the element of the single and continuous infringement relating to the refusal to pay commission, given that, because of its involvement in the other two elements of the single and continuous infringement, it could ‘have reasonably foreseen exchanges between the parties on such a related matter as [the refusal to pay commission] and [was] prepared to take the risk’. It states, in the same recital, that there is also evidence that the applicant was aware of the discussions relating to the refusal to pay commission, as evidenced by the contacts described in recitals 684, 686 and 687 of that decision.

521 It is in the light of the case-law principles recalled in paragraphs 515 to 518 above that it must be assessed whether the evidence relied on against the applicant by the Commission in recital 882 of the contested decision is sufficient to support the firm conviction that it had the requisite awareness of the general scope and essential characteristics of the element of the single and continuous infringement relating to the refusal to pay commission, as described in the contested decision.

522 At the outset, it must be stated that, in so far as the Commission relies, in essence, on the fact that the object of the element of the single and continuous infringement relating to the refusal to pay commission is identical to that of the other two elements of that infringement, that fact, assuming it is established, is not sufficient to demonstrate that the applicant had the requisite awareness of the first element, in accordance with the case-law recalled in paragraph 519 above. It must therefore be assessed whether, in the light of the contested scope of the contacts described in recitals 684, 686 and 687, to which reference is made in recital 882 of the contested decision, the Commission was entitled to consider that the applicant was aware of the anticompetitive activities of the other incriminated carriers concerning the refusal to pay commission.

523 In that regard, it should be borne in mind that, in Section 4.5 of the contested decision, the Commission described the concerted practices relating to the refusal to pay commission.

524 The Commission thus noted, in recital 676 of the contested decision, that, following discussions between freight forwarders on the lack of remuneration associated with the collection of surcharges and the involvement, at the end of 2004, of the International Federation of Freight Forwarders Associations (FIATA), ‘the [carriers] continued to refuse [to pay] commission on the surcharges and confirmed their relevant intentions to each other in the framework of numerous contacts’.

525 The ‘basic principles and structure of the cartel’ described in Section 4.1 of the contested decision applied, according to the Commission, to all aspects of the single and continuous infringement, including the refusal to pay commission.

526 That being borne in mind, in the first place, as regards the probative value of the contact referred to in recital 684 of the contested decision, it should be noted that that recital reads as follows:

‘[E (one of the other carriers)] forwarded an email on 8 July 2005 to [F (Lufthansa)] and [G (the applicant)] from [that first carrier’s] Italian sales agent ATC Spa concerning the claim of [freight] forwarders to pay a commission on the surcharges.’

527 The applicant submits that this was an entirely anodyne, and moreover unsolicited, contact, in respect of which no explanation is given as to why it is not relied on against the carrier in question. Accordingly, that contact was not such as to give the applicant the requisite awareness of the element relating to the refusal to pay commission.

528 It is apparent from the email referred to in recital 684 of the contested decision that the applicant was, together with Lufthansa, the recipient of information sent by a third carrier concerning the position adopted by freight forwarders in Italy with regard to the payment of commission on surcharges. That contact, without going so far as to demonstrate a common objective of the parties to the exchange to coordinate on the payment of commission on surcharges, was such as to give the applicant awareness that other carriers were willing to exchange information in that regard. The fact that the carrier in question is not among the incriminated carriers does not alter that conclusion, for the reasons set out in paragraphs 471 to 473 above.

529 On the other hand, that contact does not in itself establish that the applicant was aware or ought to have been aware of the existence of broader coordination on the issue of the refusal to pay commission. In accordance with settled case-law (judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 47 and the case-law cited), it is nevertheless important to examine whether, together with other items of evidence, that contact could constitute a body of evidence which enabled the Commission to conclude that that was the case (see paragraphs 537 to 539 below).

530 In the second place, as regards the probative value of the contact referred to in recital 686 of the contested decision, it should be noted that that recital reads as follows:

‘[H (SAC] Manager for the United Kingdom & Ireland) sent an email on 28 December 2005 to [Lufthansa], [CPA], …, …, …, …, [Japan Airlines], [British Airways], [SAS], … and … asking them whether they also received a communiqué from DHL in Germany announcing that DHL was going to collect a charge for the collection of the surcharges from 1 January 2006. The email was forwarded internally in … and [I (Cargo Manager for Germany, the Nordic countries and Eastern Europe of the carrier in question)] replied on 3 January 2006 that “I am meeting up with [Martinair] on Thursday and [Martinair] will be giving me a letter their legal [department] sent. I also spoke to [Lufthansa Cargo] last week who will not answer officially to the QCS letter, but have said that they will not accept any such invoices. [The applicant] by the way [has] received something from DHL here locally. I will fax you their letter just now”.’

531 The applicant claims that the exchange in question took place in connection with a legal announcement of general interest to carriers and that it shows nothing in so far as the applicant is concerned. It adds that that exchange involves several carriers that were not held liable in the contested decision.

532 It is apparent from that recital that the applicant communicated with another carrier concerning a claim received from a freight forwarder for remuneration for the collection of surcharges ‘locally’, namely in Germany. It follows that the applicant was in contact with that carrier and necessarily knew that that carrier was taking part in exchanges of information with it regarding the refusal to pay commission, and could reasonably have foreseen that that carrier was doing the same with other carriers. The fact that several carriers referred to, including that carrier, are not among the incriminated carriers does not alter that conclusion, for the reasons set out in paragraphs 471 to 473 above. On the other hand, that contact, particularly in view of its local scope, does not in itself establish that the applicant was aware or ought to have been aware of the existence of broader coordination on the issue of the refusal to pay commission.

533 In the third place, as regards the contact referred to in recital 687 of the contested decision, it should be noted that that recital reads as follows:

‘[J (CPA)] sent an internal email on 4 January 2006 concerning letters from forwarders announcing the intention to invoice the carriers for the collection of the surcharges. He stated in the email that “most managers of other carriers are still on leave as I write, although I have spoken with [SAC] and [the applicant]. [SAC] has chosen to ignore the letters. [The applicant has] forwarded on to [its head office]. Next week [Lufthansa’s] management returns from leave and I will find out what their intention is.” In a following email on 9 January 2006 [J] states that “[I] have now spoken with [Lufthansa] who are also not responding to the letters for the moment”.’

534 It is apparent from that recital that the applicant was in contact with CPA concerning a claim from freight forwarders for remuneration for the collection of surcharges. In that regard, the applicant merely disputes the statements reproduced here, without adducing any evidence to the contrary.

535 Moreover, it is not apparent from that recital that the scope of the claims at issue was limited to a specific country. That is borne out by the involvement of carriers’ head offices which can be inferred from that recital.

536 It follows that that recital may contribute to establishing the requisite awareness that the applicant had of the element of the single and continuous infringement relating to the refusal to pay commission, from the point of view of its scope ratione personae – by including CPA – and from the point of view of its geographic scope, in so far as the issue of commission on surcharges is discussed between carriers without being limited to a specific territory.

537 It follows from the foregoing that the Commission was entitled to consider that all the evidence referred to in recital 882 of the contested decision was such as to give the applicant the requisite awareness of the essential characteristics of that element from the point of view of its scope ratione personae. The applicant was aware of the involvement of at least four carriers (CPA, Lufthansa and two other carriers) and could infer therefrom, in view also of its involvement in the elements relating to the FSC and the SSC, the complementarity of which with the refusal to pay commission is not effectively disputed, that those carriers were in contact with other carriers.

538 Similarly, the geographic scope of the element of the single and continuous infringement relating to the refusal to pay commission could reasonably be inferred by the applicant from the number of countries concerned by the information exchanges to which it was a party and from the centralised approach which can be inferred from the contact referred to in recital 687 of the contested decision.

539 On the other hand, none of the evidence referred to in recitals 684, 686 and 687 of the contested decision demonstrates that the applicant had the requisite awareness of one of the essential characteristics of the element of the single and continuous infringement relating to the refusal to pay commission, namely that the carriers observed a common discipline, adherence to which was confirmed by regular exchanges on their intentions. None of those recitals shows that the applicant was informed of the existence of such a discipline. Nor does it follow from those recitals that the applicant stated its intentions with regard to the claims for commission on surcharges – since the information in recital 687 to the effect that the matter had been forwarded on to its head office does not express any intention but merely shows that the matter is under consideration – or that the applicant’s interlocutors informed it of their intentions.

540 It follows that the Commission erred in finding that the applicant had the requisite awareness of the element of the single and continuous infringement relating to the refusal to pay commission. Consequently, Article 1(1)(a), (2)(a), (3)(a) and (4)(a) of the contested decision must be annulled in so far as it imputes to the applicant liability for the element of the single and continuous infringement relating to the refusal to pay commission.

– The evidence relating to the applicant’s awareness of the conduct of the other carriers

541 The applicant disputes the probative value of the contacts referred to in recital 897 of the contested decision, in respect of which the Commission states, in recital 895, that they prove that it was ‘aware of the behaviour of other participants or could reasonably have foreseen or been aware of [it] and [was] prepared to take the risk’.

542 The applicant merely refers, in support of the present complaint, to the arguments directed against the elements relating to the FSC and the SSC, which have already been examined and rejected by the Court in connection with the present part of the plea. Accordingly, this complaint must be rejected.

543 In the light of all the foregoing, the present part of the plea must be upheld in so far as the Commission erred in finding the applicant liable for the element of the single and continuous infringement relating to the refusal to pay commission, and must be rejected as to the remainder.

(c) The third part of the plea, alleging an error and an infringement of the rights of the defence as regards the Commission’s refusal to accept the withdrawal of the applicant’s leniency application

544 The applicant claims that the Commission made an error and infringed its rights of defence by refusing to grant its request to withdraw its leniency application and to return the documents which it submitted in connection with that application. It alleges, in essence, an error of assessment and an error of law, in so far as, contrary to the Commission’s contention, there is nothing in the 2002 Leniency Notice to preclude such a withdrawal, which the case-law tends to corroborate. Whether or not the leniency procedure had reached an advanced stage is irrelevant.

545 The Commission disputes the applicant’s line of argument.

546 As a preliminary point, it should be noted that the Commission does not dispute the possibility, for a leniency applicant, of manifesting its intention to cease its cooperation in connection with the leniency procedure and to waive the benefit of a reduction in the amount of any fines. However, in connection with the contested decision (see recital 104) and its reply to this part of the plea, it denied the applicant the possibility of requesting, when withdrawing its leniency application, the removal from the Commission’s file of the statements and evidence submitted in that procedure.

547 In that regard, it must be borne in mind that, according to the principles recalled in paragraphs 477 to 480 above, any statement made vis-à-vis the Commission in connection with a leniency application forms an integral part of its file, since such statements may be used as evidence by the Commission irrespective of whether the conditions for a reduction in the amount of the fine are met.

548 Furthermore, there is nothing to prevent the conclusions reached by the Court in the judgment of 12 December 2012, Novácke chemické závody v Commission (T‑352/09, EU:T:2012:673), as regards the statements made by the leniency applicant, from being extended to all the evidence provided by an undertaking in order to obtain a reduction in the amount of the fine.

549 Thus, in the judgment of 12 December 2012, Novácke chemické závody v Commission (T‑352/09, EU:T:2012:673), the Court based its conclusion that the leniency applicant’s statement could be relied on as evidence, irrespective of the outcome of its leniency application, in essence, on the voluntary nature of the cooperation provided by the undertaking wishing to obtain a reduction in the amount of the fine and on the terms of the leniency notice applicable to the facts at issue.

550 On the one hand, the evidence provided by the applicant in the present case in its leniency application, like the statement of the leniency applicant in the case that gave rise to the judgment of 12 December 2012, Novácke chemické závody v Commission (T‑352/09, EU:T:2012:673), was provided voluntarily.

551 On the other, neither the 2002 Leniency Notice nor the 2006 Leniency Notice contains provisions of such a kind as to create, for undertakings wishing to cooperate with the Commission, expectations as to what would happen to the evidence provided by those undertakings that does not, ultimately, satisfy the conditions for obtaining a reduction in the amount of the fine. The same applies to situations, such as in the present case, in which the undertaking ultimately intends to withdraw a leniency application which it has made voluntarily. That situation contrasts with the clarifications offered by those notices regarding what happens to the evidence provided in support of an application in respect of which the Commission rules out that it meets the conditions for granting conditional immunity. In such a case, the undertaking may withdraw the evidence disclosed (see, respectively, point 17 of the 2002 Leniency Notice and point 20 of the 2006 Leniency Notice).

552 Moreover, automatically removing from the file evidence provided by an undertaking which shows that it does not ultimately meet the conditions for obtaining a reduction in the amount of the fine on the date of adoption of the decision finding an infringement or that it ultimately intends to terminate its cooperation before the adoption of that decision would undermine the effectiveness of the leniency procedure. The Commission would be deprived of evidence which is by definition essential to establishing the infringement in question and the participation therein, at a stage where the possibility of making up for that lack of evidence by means of additional investigative measures would be considerably reduced, in particular on account of the risk of deterioration of the evidence. Furthermore, the success of procedures would risk being left to the goodwill of the leniency applicant, while the Commission would be hampered in effectively monitoring compliance with the conditions for granting the benefit of a reduction in the amount of the fine.

553 Consequently, the Commission did not err in taking into account, in the contested decision, the statements and evidence provided by the applicant in connection with its leniency application, the withdrawal of which was subsequently requested by the applicant.

554 In so far as the complaint alleging infringement of the rights of the defence is based on the incorrect premiss that the applicant could validly withdraw those statements and that evidence from the Commission’s file, it must also be rejected.

555 It follows from all the foregoing that the fifth plea must be rejected, with the exception of the second part, in so far as the Commission erred in finding the applicant liable for the element relating to the refusal to pay commission, which must be upheld.

556 In the light of all the foregoing, the second part of the fifth plea must be upheld in so far as the Commission erred in finding the applicant liable for the element relating to the refusal to pay commission. Consequently, Article 1(1)(a), (2)(a), (3)(a) and (4)(a) of the contested decision must be annulled in so far as it imputes to the applicant liability for the element of the single and continuous infringement relating to the refusal to pay commission.

557 It cannot, however, be held that that illegality is such as to entail the annulment of the contested decision in its entirety. Although the Commission made an error of assessment in imputing to the applicant liability for the element of the single and continuous infringement relating to the refusal to pay commission, it must be held that it has not been established in the present action that the Commission erred in finding that it had participated in the infringement at issue.

558 The other heads of claim seeking annulment must be dismissed.

B. The claim for a reduction in the amount of the fine

559 The applicant claims, in essence, that the Court should draw the appropriate conclusions from the five pleas on which it relied in support of its claim for annulment by substantially reducing the amount of the fine in the exercise of its unlimited jurisdiction. In response to the Court’s measures of organisation of procedure, the applicant also requested that the Court uphold the plea raised of its own motion and exercise its unlimited jurisdiction to reduce the amount of the fine accordingly.

560 The Commission contends that this claim must be dismissed as inadmissible for want of clarity and precision. In any event, the fine imposed on the applicant is fully justified.

1. Admissibility

561 As is apparent from paragraph 391 above, the admissibility of an action is conditional on the basic matters of law and fact relied on being indicated, at least in summary form, coherently and intelligibly in the application itself.

562 It should also be borne in mind that it is only after the Court has finished reviewing the legality of the decision referred to it, in the light of the pleas in law submitted to it and of grounds which, where applicable, it has raised of its own motion, that, in the event that it does not annul the decision in full, it is to exercise its unlimited jurisdiction in order, first, to draw the appropriate conclusions from its findings with respect to the lawfulness of that decision and, secondly, to establish, according to the information which has been brought to its attention, whether it is appropriate, on the date on which it adopts its decision, to substitute its own assessment for that of the Commission, so that the amount of the fine is appropriate (see judgment of 17 December 2015, Orange Polska v Commission, T‑486/11, EU:T:2015:1002, paragraph 67 and the case-law cited).

563 By the present claim, the applicant specifically requested that the Court draw the appropriate conclusions from the illegalities alleged in support of the claim for annulment and cancel or reduce the fine accordingly. In the present case, the Court found only one illegality when examining the claim for annulment, namely that relating to the imputation to the applicant of liability for the element of the single and continuous infringement relating to the refusal to pay commission. It must therefore be considered that the applicant is requesting that the Court draw the appropriate conclusions from that illegality for the calculation of the amount of the fine.

564 It follows that, despite the brevity of the line of argument put forward in support of this claim, the essential matters of fact and law on which it is based are sufficiently clear from the application, in accordance with the requirements of the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure.

565 The present plea of inadmissibility must therefore be rejected.

2. Substance

566 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).

567 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).

568 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).

569 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).

570 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).

571 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.

572 The Court considers that it is not appropriate, in order to determine the amount of the fine to be imposed on the applicant, to depart from the method of calculation followed by the Commission in the contested decision, which the applicant has not claimed was 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 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 2006 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).

573 In those circumstances, first of all, it must be observed that the total value of the sales made by the applicant in 2005 was EUR 151 513 620. That value does not include any revenue from non-EU EEA-Switzerland routes, in respect of which the Court held in paragraphs 329 to 352 above that they did not fall within the scope of the single and continuous infringement. It is apparent from the application that the applicant did not achieve any turnover on those routes during 2005.

574 Next, it should be noted that, on the grounds set out in recitals 1198 to 1212 of the contested decision and in the absence of any argument to the contrary put forward by the applicant, the single and continuous infringement merits a gravity factor of 16%.

575 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 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.

576 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).

577 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.

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

579 Furthermore, it is apparent from recitals 1213 to 1217 of the contested decision that the duration in respect of which the applicant was held liable for the single and continuous infringement amounts to five years and four months 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. Since the Commission lawfully established the duration of the applicant’s involvement in the single and continuous infringement, it is appropriate to use multiplying factors of 54/12, 19/12, 38/12 and 8/12, respectively.

580 The basic amount of the fine must therefore be set at EUR 66 521 489.

581 Consequently, the basic amount of the fine 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 applicant has not contested and which is not inappropriate, must be set, after rounding, at EUR 33 000 000. 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 incriminated carriers 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).

582 Lastly, as regards the adjustments to the basic amount of the fine, it should be borne in mind that the applicant benefited from the general 15% reduction, the lawfulness or appropriateness of which it has not disputed.

583 Furthermore, in recitals 1258 and 1259 of the contested decision, the Commission granted the applicant a 10% reduction in the basic amount of the fine on the ground that it ‘operated on the periphery of the cartel, entered into a limited number of contacts with other carriers, and … did not participate in all elements of the [single and continuous] infringement’. It must, however, be borne in mind that the Commission erred in imputing to the applicant liability for the element of the single and continuous infringement relating to the refusal to pay commission and, consequently, overestimated the degree of its participation in the single and continuous infringement. It was, accordingly, inappropriate to grant the applicant a reduction of only 10% on that basis.

584 In those circumstances, in the light of the limited period during which the incriminated carriers coordinated in respect of the refusal to pay commission in comparison with the duration of the single and continuous infringement as a whole, the Court considers that a reduction of 21% on account of the applicant’s limited involvement in the single and continuous infringement is appropriate.

585 On the other hand, the Court does not consider that the exclusion of the contact described in recital 503 of the contested decision from the body of evidence (see paragraph 498 above) and the need to qualify the scope of the contact referred to in recital 634 of the contested decision justify (see paragraph 512 above) the grant of an additional reduction to the applicant by way of mitigating circumstances. Those contacts, which concern the FSC and the SSC, respectively, are among the numerous exchanges that took place at local level which the Commission relied on against the applicant, and the scope of its involvement in those exchanges, a fortiori in the elements of the single and continuous infringement relating to the FSC and the SSC, in general remains fully substantiated.

586 In addition, it must be held that the 15% leniency reduction granted to the applicant remains appropriate.

587 In the light of all the foregoing considerations, the amount of the fine imposed on the applicant must be calculated as follows: first, the basic amount is determined by applying, in view of the gravity of the single and continuous infringement, a percentage of 16% to the value of sales, then, in respect of the duration of the infringement, the multipliers set out in paragraph 579 above, and, lastly, an additional amount of 16%, resulting in an intermediate amount of EUR 66 521 489. After applying the general 50% reduction, that amount, rounded down, must be set at EUR 33 000 000. Next, after applying the general 15% reduction and an additional reduction of 21% on account of the applicant’s limited involvement in the single and continuous infringement, that amount must be set at EUR 21 120 000. Lastly, the latter amount must be reduced by 15% under the leniency programme, which results in a fine of a final amount of EUR 17 952 000.

IV. Costs

588 Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order each party to bear its own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.

589 In the present case, the applicant has been successful in respect of a substantial part of its claims. Accordingly, it is fair in the circumstances of the case to decide that the applicant is to bear two thirds of its own costs and that the Commission is to bear its own costs and pay one third of the applicant’s costs.

On those grounds,

THE GENERAL COURT (Fourth Chamber, Extended Composition)

hereby:

1. Annuls Article 1(1)(a), (2)(a), (3)(a) and (4)(a) of Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case AT.39258 – Airfreight) in so far as it finds that Air Canada participated in the element of the single and continuous infringement relating to the refusal to pay commission on surcharges;

2. Sets the amount of the fine imposed on Air Canada in Article 3(a) of Decision C(2017) 1742 final at EUR 17 952 000;

3. Dismisses the action as to the remainder;

4. Orders the European Commission to bear its own costs and to pay one third of the costs incurred by Air Canada;

5. Orders Air Canada to bear two thirds of its own costs.

Kanninen

Schwarcz

Iliopoulos

Spielmann

Reine

Delivered in open court in Luxembourg on 30 March 2022.

E. Coulon

H. Kanninen

Registrar

President

Table of contents

I. Background to the dispute

A. Administrative procedure

B. The Decision of 9 November 2010

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

D. Contested decision

II. Procedure and forms of order sought

III. Law

A. The claim for annulment

1. The first plea, alleging infringement of the rights of the defence, of the right to be heard and of essential procedural requirements as regards the Commission’s failure to send a new statement of objections to the incriminated carriers

2. The second plea, alleging, in essence, a failure to state reasons as to the scope of the single and continuous infringement

(a) The finding of a single and continuous infringement ‘on a global basis’

(b) The definition of the nature and scope of the single and continuous infringement

(1) The geographic and temporal scope of the single and continuous infringement

(2) Recitals 887 to 890 of the contested decision

(c) The contradiction which led to the annulment of the Decision of 9 November 2010

3. The fourth plea, alleging a lack of jurisdiction on the part of the Commission to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes, on the one hand, and on EU-third country routes before 1 May 2004 and on non-EU EEA-third country routes before 19 May 2005, on the other

(a) The second part of the plea, alleging a lack of jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes

(1) The first complaint, based on a misinterpretation of Regulation No 411/2004

(2) The second and third complaints, based, respectively, on an error in the application of the implementation test and on an error in the application of the qualified effects test

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

– The relevance of the effect at issue

– The foreseeability of the effect at issue

– The substantiality of the effect at issue

– The immediacy of the effect at issue

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

(b) The first part of the plea, alleging a lack of jurisdiction to apply Article 101 TFEU to EU-third country routes before 1 May 2004 and Article 53 of the EEA Agreement to non-EU EEA-third country routes before 19 May 2005

4. 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

5. The third plea, alleging, in essence, manifest errors of assessment and of law in imputing to the applicant liability for the single and continuous infringement on intra-EEA routes and EU-Switzerland routes

(a) The applicable principles

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

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

6. The fifth plea, alleging errors as regards the imputation to the applicant of liability for the single and continuous infringement

(a) The first part of the plea, alleging misapplication of the concept of a single and continuous infringement

(1) Admissibility

(2) Substance

(i) The incorrect inclusion within the scope of the single and continuous infringement of ‘local responses to local conditions’ and contacts within industry bodies outside the EEA

(ii) The Commission’s alleged failure to distinguish between the conduct of the participants in the ‘real cartel’ and that of the other incriminated carriers

(iii) The Commission’s alleged failure to examine the credibility of the various leniency statements

(b) The second part of the plea, alleging that the Commission failed to prove, by means of credible evidence, the facts alleged against the applicant

(1) Admissibility of Annex A.14

(2) Substance

(i) The general criticism of the approach taken by the Commission

(ii) The lack of probative value of the evidence relied on against the applicant in the contested decision

– The evidence relating to the FSC

– The evidence relating to the SSC

– The evidence relating to the refusal to pay commission

– The evidence relating to the applicant’s awareness of the conduct of the other carriers

(c) The third part of the plea, alleging an error and an infringement of the rights of the defence as regards the Commission’s refusal to accept the withdrawal of the applicant’s leniency application

B. The claim for a reduction in the amount of the fine

1. Admissibility

2. Substance

IV. Costs