On 26 February, the Court of Justice of the European Union handed down a series of 13 judgments bringing to a close one of the longest-running antitrust cases in the airline industry. It dismissed almost all the appeals lodged by 12 airlines against the judgments of the General Court of the European Union of March 2022, thus confirming, on the merits, the European Commission's decision on the cartel on the air freight market between December 1999 and February 2006.
As a reminder, in November 2010 the Commission sanctioned several airlines for a cartel involving the coordinated introduction of fuel and security surcharges, as well as the refusal to grant commissions to freight forwarders on these surcharges. This initial decision, which was accompanied by fines totalling around €790m, was annulled by the court in 2015 due to internal contradictions that undermined the rights of defence. A new decision was then adopted in March 2017, this time imposing fines totalling around €776m, including almost €80m for Cargolux, according to the document to which the CJEU refers.
Attacked by appeals against this second decision, the court had, in March 2022, rejected the applications for annulment made by several companies, including Air France, Air France-KLM, Lufthansa, Singapore Airlines, KLM, Martinair Holland and Cargolux, while reducing the fines imposed on some others. These judgments had given rise to appeals before the Court of Justice.
On the merits, the Court validates the legal analysis adopted at first instance. First of all, it confirms that the European Commission has jurisdiction to penalise anti-competitive practices concerning air freight services from third countries to the European Union or the European Economic Area. It points out that this jurisdiction may be based either on the criterion of implementation of the practices on the territory of the Union or on the criterion of "qualified effects", i.e. foreseeable, immediate and substantial effects on that territory, these two criteria being of an alternative nature.
End of a 15-year dispute
The Court also rejects the arguments challenging the classification of a "single and continuous infringement". It states that a company may be held liable even in the absence of direct evidence for certain periods, provided that its participation is based on objective and corroborative evidence. It also stresses that an undertaking may be held liable for the cartel as a whole, including for routes it does not serve, provided that it contributed to the common objectives pursued by the participants and was aware of the infringing conduct of the other cartel members.
The European judges also dismiss the pleas alleging that the Commission's power to impose penalties was time-barred, raised for the first time at the appeal stage. They point out that this plea is not a matter of public policy and must therefore be raised by the parties before the court in order to be examined.
The only change the Court has made concerns SAS Cargo Group. It considers that the Court erred in altering the amount of the fine in order to ensure alleged equality of treatment, by including in the basis of calculation revenue from routes within the same State, without having evidence that comparable revenue had been taken into account for the other companies. In the absence of evidence of differential treatment, the court could not conclude that there had been a breach of the principle of equality. The Court therefore set aside the judgment on this point and itself set the amount of the fine at a lower level than that adopted at first instance.
With these judgments, the Court of Justice closes a dispute that has been ongoing for more than 15 years and confirms the legal soundness of the Commission's approach to the punishment of international cartels, while reiterating the rigorous requirements that apply to the individualised calculation of financial penalties.
