General Court annuls air cargo cartel decision

The General Court has delivered 13 judgments overturning the European Commission’s 2010 decision in the airfreight cartel.  In a rare series of rulings the General Court has annulled fines totalling EUR790 million imposed for price fixing in the air cargo sector.

The General Court found that the Commission’s original decision was flawed due to fundamental discrepancies in the evidence presented by the Commission and the grounds for imposing the level of fines that it did.  The Commission built its case around the concept of a single and continuous infringement (SCI) across all routes in which all of the carriers operated.  However, the operative part of the decision contained four separate infringements which were based on different time periods, different categories of routes and different inculpated carriers.

The General Court found that the internal contradictions in the Commission decision infringed the carriers’ rights of defence and prevented the Court from exercising its judicial review powers.

The Commission has often used the SCI concept when attributing liability for a complex cartel involving multiple parties and across different time periods, including in its decisions in its removal services and bathroom fittings cases.  The General Court’s judgments emphasise that the Commission needs to break down the different fact scenarios and justify its decision in a clear and equivocal fashion. 

For some time the Commission’s rather sloppy approach to a SCI has been a matter of concern as it effectively reverses the burden of proof by putting the onus on the investigated party to displace the inference of a cartel.  If the rulings inject more rigour in the Commission’s approach they can be welcomed from the perspective of defendants.

Meanwhile, private litigation arising from the alleged air cargo cartel continues.  Debates about the significance of the General Court’s judgments for those proceedings will no doubt ensue.  In England the claims technically began as standalone claims but with the Commission’s 2010 decision they became follow-on.  Effectively, the claims are now standalone until the Commission issues a definitive new decision which may require some amendments to pleadings and put some limits on disclosure. 

Sources:

Case T-9/11 - Air Canada v Commission (ECLI:EU:T:2015:994)

Case T-28/11 - Koninklijke Luchtvaart Maatschappij v Commission (ECLI:EU:T:2015:995)

Case T-36/11 - Japan Airlines v Commission (ECLI:EU:T:2015:992)

Case T-38/11 - Cathay Pacific Airways v Commission (ECLI:EU:T:2015:985)

Case T-39/11 - Cargolux Airlines v Commission (ECLI:EU:T:2015:991)

Case T-40/11 - Latam Airlines Group and Lan Cargo v Commission (ECLI:EU:T:2015:986)

Case T-43/11 - Singapore Airlines and Singapore Airlines Cargo PTE v Commission (ECLI:EU:T:2015:989)

Case T-46/11 - Deutsche Lufthansa and Others v Commission (ECLI:EU:T:2015:987)

Case T-48/11 - British Airways v Commission (ECLI:EU:T:2015:988)

Case T-56/11 - SAS Cargo Group and Others v Commission (ECLI:EU:T:2015:990)

Case T-62/11 - Air France-KLM v Commission (ECLI:EU:T:2015:996)

Case T-63/11 - Air France v Commission (ECLI:EU:T:2015:993)

Case T-67/11 - Martinair Holland v Commission (ECLI:EU:T:2015:984)