On March 30, 2022, after a decade of litigation in over a dozen separate cases, the General Court partially annulled the Commission’s March 17, 2017 decision imposing a €776 million fine on air carriers for coordinated practices and agreements relating to air freight transport between 1999 and 2006.[1] The General Court upheld the Commission’s decision although, in six of 13 appeals lodged against the decision,[2] the Court found that the Commission had infringed procedural rights and/or failed to establish the participation of certain air carriers in certain parts of the infringement. The General Court reduced the corresponding fines and dismissed the remaining seven appeals in their entirety.

Background: the air transport proceedings

In the freight sector, air carriers provide transport services to freight companies (“forwarders”) that arrange transportation on behalf of cargo shippers. Air carriers charge freight forwarders a base price and, where appropriate, surcharges to cover specific costs, such as fuel (“fuel surcharge”) and compliance with security measures (“security surcharge”).

Freight forwarders can then benefit from a rebate, referred to as a “commission” on surcharges.

On November 9, 2010, the Commission imposed a €790 million fine on 21 air carriers for illegally coordinating fuel surcharges, security surcharges and the refusal to pay commissions for routes to and from the EEA between 2002 and 2006.[3] On December 16, 2015, the General Court annulled the Commission decision on the grounds that it was vitiated by a defective statement of reasons.[4] On March 17, 2017, the Commission adopted a new decision that largely mirrored the previous one. This decision imposed a €776 million fine on many of the same grounds: that 19 air carriers[5] had coordinated their prices through fuel surcharges, security surcharges and the refusal to pay commissions.[6]

The 2022 General Court judgments

The airlines appealed. On March 30, 2022, the General Court upheld the Commission’s decision in relation to seven of the 13 appellants and partially annulled it in relation to the remaining six appellants.

In four of the six partially successful appeals,[7] the General Court found that the decision failed to demonstrate that the applicants participated in the portions of the infringement relating to the refusal to pay surcharge commissions (Air Canada, British Airways, SAS and Latam Airlines), the payment of fuel surcharges (SAS and Latam Airlines) and security surcharges (Latam Airlines). This outcome reflects a careful approach by the Court to assessing each company’s involvement in each aspect of the alleged conduct.[8] Participation in one portion of an infringement does not automatically give rise to liability for the infringement as a whole.[9] Furthermore, in Japan Airlines,[10] Cathay Pacific Airways[11] and Latam Airlines,[12] the General Court found that the applicable 10-year[13] limitation period had expired in 2016 for practices[14] that the Commission’s initial 2010 decision did not cover but that had been included in the scope of the 2017 decision.[15] The General Court reduced the total fine imposed by approximately €45 million.

The unsuccessful appellants[16] had raised several grounds of appeal, including that the Commission lacked jurisdiction to apply Article 101 TFEU to freight services inbound from third countries.[17] The General Court found that, though EU legislation implementing Article 101 had indeed exempted such services in the past,[18] this exemption had lapsed.[19] In addition, it considered that the Commission had correctly found that the foreign conduct at issue would have an immediate and substantial effect in the internal market and that EU competition rules could thus apply under the “qualified effects test.” The unsuccessful applicants had also argued that the decision breached the principle of equal treatment and the obligation to state reasons by fining only certain carriers. But the General Court found that the obligation for the Commission to state the reasons on which a measure is based did not encompass an obligation to give reasons for not adopting similar measures addressed to third parties and dismissed the plea.[20] Likewise, the General Court rejected the plea from some appellants that the Commission had failed to establish their participation in the entire infringement. It also dismissed a number of pleas alleging other illegal findings by the Commission,[21] violations of the principle of proportionality and equality,[22] and the misuse of powers.[23]

Beyond fine reductions, the General Court proceedings may help successful appellants limit the scope of follow-on actions for damages brought against them in national courts. A number of actions have already been brought in Germany, the Netherlands and the U.K., and more may follow once the Commission’s decision becomes final, which will occur if the parties opt not to appeal the General Court judgments.[24]

In conclusion, over the course of 12 years, two decisions and two rounds of appeals before the General Court, the Commission was able to cure the majority of the defects that had affected its initial 2010 decision on the air transport cartel. Nevertheless, 6 of the initial 21 carriers successfully reduced the fines imposed on them from approximately €302 to €251 million. Latam Airways was most successful in this regard, reducing its initial fine of €8 million by close to 75% to just over €2 million. Despite the Commission’s ultimate success in its qualification of the conduct as a whole and in establishing its jurisdiction to review it, the air transport cases evidence the complexity of investigating large international cartels.

[1]      Airfreight (Case COMP/AT.39258), Commission decision of March 17, 2017.

[2]      The General Court treated each appeal separately, while carriers belonging to the same group appealed jointly: SAS Cargo, Scandinavian Airlines, and SAS Group; Lufthansa Cargo, Lufthansa, and Swiss Air Lines; Latam Airlines Group and Lan Cargo; and Singapore Airlines and Singapore Airlines Cargo.

[3]      Airfreight (Case COMP/AT.39258), Commission decision of November 9, 2010.

[4]      The General Court found that the operative part and the grounds of the Commission’s decision were contradictory; Air Canada v. Commission (Case T9/11), EU:T:2015:994; Koninklijke Luchtvaart Maatschappij v. Commission (Case T28/11), EU:T:2015:995; Japan Airlines v. Commission (Case T36/11), EU:T:2015:992; Cathay Pacific Airways v. Commission (Case T38/11), EU:T:2015:985; Cargolux Airlines v. Commission (Case T39/11), EU:T:2015:991; Latam Airlines Group and Lan Cargo v Commission (Case T40/11), EU:T:2015:986; Singapore Airlines and Singapore Airlines Cargo Pte v. Commission (Case T43/11), EU:T:2015:989; Deutsche Lufthansa and Others v. Commission (T46/11), EU:T:2015:987; British Airways v Commission (Case T48/11), EU:T:2015:988; SAS Cargo Group and Others v. Commission (Case T56/11), EU:T:2015:990; Air France-KLM v. Commission (Case T62/11), EU:T:2015:996; Air France v. Commission (Case T63/11), EU:T:2015:993; and Martinair Holland v. Commission (Case T67/11), EU:T:2015:984.

[5]      The reduction in the number of incriminated air carriers is due to changes in the structure of the airlines and to the fact that Qantas Airways did not bring an action against the initial November 9, 2010, decision.

[6]      Airfreight (Case COMP/AT.39258), Commission decision of March 17, 2017.

[7]      Air Canada v. Commission (“Air Canada II”)(Case T-326/17) EU:T:2022:177; British Airways (Case T-341/17), EU:T:2022:182; SAS Cargo Group and Others v. Commission (Case T-324/17), EU:T:2022:175; and Latam Airlines Group SA and Lan Cargo SA v Commission (“Latam Airlines”)(Case T-334/17), EU:T:2022:18.

[8]      E.g., Japan Airlines v. Commission (“Japan Airlines”)(Case T-340/17), EU:T:2022:181, para. 215: the Court thus regards the Commission’s decision as a group of individual decisions, each of which establishes, in relation to its addressee, the specific infringement which it was found to have committed.

[9]      See e.g., Air Canada II, para. 522.

[10]    Japan Airlines, paras. 193 and following.

[11]    Cathay Pacific Airways Ltd v. Commission (Case T-343/17) EU:T:2022:184, paras. 218 and following.

[12]    Latam Airlines, paras. 104 and following.

[13]    Regulation 1/2003 provides: (i) in the absence of an interrupting act, such as the initiation of proceedings by the Commission, for a five-year limitation period (Article 25(3)); and (ii) if interruptive action was taken, for a maximum 10-year limitation period (Article 25(5)) from the day on which the infringement ceased.

[14]    For Japan Airlines: EEA to third country routes; for Cathay Pacific Airways: intra-EEA routes and EU to Switzerland routes; and for Latam Airlines: intra-EEA routes, non-EU EEA to third country routes and EU to Switzerland routes.

[15]    Because the initial 2010 decision did not cover these practices, the appeal did not suspend the limitation period that had started to run for these practices when they ceased in 2006; the limitation period thus expired in 2016, before the Commission’s adoption of its second decision in 2017.

[16]    Martinair Holland NV v. Commission (“Martinair”)(Case T-323/17) EU:T:2022:174 ; KLM v. Commission (Case T-325/17) EU:T:2022:176; Cargolux Airlines v. Commission (Case T-334/17) EU:T:2022:178; Cargolux Airlines v. Commission (“Cargolux”)(Case T-334/17) EU:T:2022:178; Air France-KLM (“Air France-KLM”) (Case T-337/17) EU:T:2022:179; Singapore Airlines Ltd and Singapore Airlines Cargo Pte Ltd v. Commission (Case T-350/17) EU:T:2022:186; Société Air France v. Commission (Case T-338/17) EU:T:2022:180 ; and Lufthansa and Others v. Commission (Case T-342/17) EU:T:2022:183.

[17]    The plea was likewise rejected on the same grounds in certain partially upheld appeals, e.g., Air Canada v. Commission (“Air Canada”) (Case T-326/17) EU:T:2022:177, paras. 188 and following.

[18]    The whole of the air transport sector was exempted from the scope of the initial Article 101 implementing regulation, Regulation 17 (OJ, English Special Editions 1959-1962, p. 291). Later, Regulation No. 3975/87, which laid down the procedure for the application of competition rules to air transport, and the initial iteration of Regulation No. 1/2003 excluded air transport to third countries from their scopes.

[19]    Regulation No. 411/2004 extended the scope of Regulation No. 1/2003 to cover air transport to third countries.

[20]    E.g., Air France-KLM, paras. 347 and 352: the General Court considered that a fine cannot be annulled on the grounds that another participant to the cartel was not sanctioned. The plea was also rejected when it was raised in the appeals that were partially upheld; see for instance, Japan Airlines, para. 295; Martinair, para. 238 and Cargolux, para. 366.

[21]    E.g., Air France-KLM, paras. 213 and following: the General Court dismissed Air France’s claim that sanctioning it for the practices of the former Air France business breached the principles of personal responsibility and individualization of penalties and sanctions.

[22]    E.g., Air France-KLM, paras. 321 and following: Air France argued that evidence provided by Lufthansa in its immunity application should not be taken into consideration because, in its view, Lufthansa had failed to satisfy the conditions for immunity (ending the infringement after requesting immunity). The General Court considered that, should Lufthansa indeed have failed to meet certain requirements for immunity, this would not deprive the Commission of the possibility to use the evidence submitted.

[23]    E.g., Cargolux, paras. 209 and following: Cargolux argued that the Commission had misused its powers by relying on evidence for certain routes that predated the Commission’s acquisition of the competence to find infringements on those routes. However, the General Court found that the Commission may rely on contacts predating the infringement period in order to construct “an overall impression of the situation” and “corroborate the interpretation of certain items of evidence.”

[24]    In the case of an appeal against a Commission decision, national courts must in principle stay follow-on actions for damages pending a definitive determination of the matter by the EU courts, see Regulation No. 1/2003, art. 16(1) and Masterfoods and HB (Case C-344/98) EU:C:2000:689, paras. 52 and 57.