On Thursday 26 February, the Court of Justice of the European Union rejected the appeal by twelve airlines against a decision by the General Court of the European Union confirming a fine of €790 million imposed by the European Commission, subsequently revised to €776 million.
However, it reduced the fine imposed on SAS Cargo Group.
The European Commission initiated proceedings in 2005 against a cartel between airlines on the freight market, alleging a single and continuous infringement of Article 101 of the Treaty on the Functioning of the European Union (TFEU), Article 53 of the Agreement on the European Economic Area (EEA) and Article 8 of the EC-Switzerland Air Transport Agreement.
The agreement concerned coordinating fuel surcharges and security surcharges, and refusing to pay commissions to freight forwarders. The infringement covers the period from 1999 to 2006.
The first Commission decision was annulled by the General Court. In 2017, the Commission adopted a new decision, and in March 2022, the General Court dismissed the actions brought by Martinair Holland, KLM, Cargolux, Air France-KLM, Air France, Lufthansa and Singapore Airlines.
New appeals were lodged. In a series of thirteen judgments (C-367/22 P, C-369/22 P, C-370/22 P, C-375/22 P, C-378/22 P, C-379/22 P, C-380/22 P, C-381/22 P, C-382/22 P, C-385/22 P, C-386/22 P, C-401/22 P and C-403/22 P), the Court once again rejected almost all of the airlines’ arguments. Only SAS Cargo Group’s appeal was partially upheld due to errors in calculating the fine’s amount.
It rejected arguments challenging the Commission’s jurisdiction over inbound freight: the Commission “may find and penalise conduct adopted outside the territory of the European Union or the EEA, provided that the conduct was implemented in that territory”.
The Court also rejected the arguments against characterising the infringement as “single and continuous”. “Where an infringement extends over several years, the fact that direct evidence of the implementation of an agreement by an undertaking has not been adduced for certain specific periods does not preclude its participation in that agreement from nevertheless being established in respect of those periods”.
In addition, a company can be held liable even for routes it does not serve, when it is aware of offending behaviour.
Link to the judgments: https://aeur.eu/f/kym (Original version in French by Solenn Paulic)