Contents
Judgment of the General Court (Fourth Chamber, Extended Composition)30 March 2022note(Competition — Agreements, decisions and concerted practices — Market for airfreight — Decision finding an infringement of 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 — Coordination of elements of the price of airfreight services (fuel surcharge, security surcharge, payment of commission on surcharges) — Exchange of information — Territorial jurisdiction of the Commission — Single and continuous infringement — Attributability of unlawful conduct — Conditions for granting immunity — Equal treatment — Obligation to state reasons — Amount of the fine — Value of sales — Gravity of the infringement — Duration of participation in the infringement — Mitigating circumstances — Encouragement of the anticompetitive conduct by public authorities — Proportionality — Unlimited jurisdiction)In Case T‑337/17,Air France-KLM, established in Paris (France), represented by A. Wachsmann, A. de La Cotardière and A.‑E. Herrada, lawyers,vEuropean Commission, represented by A. Dawes and C. Giolito, acting as Agents, and by N. Coutrelis, lawyer,THE GENERAL COURT (Fourth Chamber, Extended Composition),composed of H. Kanninen (Rapporteur), President, J. Schwarcz, C. Iliopoulos, D. Spielmann and I. Reine, Judges,Registrar: E. Artemiou, Administrator,having regard to the written part of the procedure and further to the hearing on 12 June 2019,gives the following
JudgmentOnly the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.…
II.Procedure and forms of order sought
62The applicant brought the present action by application lodged at the Registry of the General Court on 30 May 2017.
63The Commission lodged the defence with the Court Registry on 29 September 2017.
64The applicant lodged a reply with the Court Registry on 3 January 2018.
65The Commission lodged a rejoinder with the Court Registry on 28 February 2018.
66On 24 April 2019, on a proposal from the Fourth Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the present case to a chamber sitting in extended composition.
67On 24 May 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 latter replied within the prescribed period.
68The parties presented oral argument and answered the questions put to them by the Court at the hearing on 12 June 2019.
69On 18 June 2019, the applicant produced the document requested by the Court at the hearing on 12 June 2019.
70On 24 June 2019, the Court closed the oral part of the procedure.
71By order of 31 July 2020, the Court (Fourth Chamber, Extended Composition), considering that it did not have sufficient information and that it was necessary to invite the parties to submit their observations on an argument they had not debated, ordered that the oral part of the procedure be reopened pursuant to Article 113 of the Rules of Procedure.
72The parties responded within the prescribed period to a series of questions put by the Court on 4 August 2020 and then submitted observations on their respective responses.
73By decision of 6 November 2020, the Court again closed the oral part of the procedure.
74The applicant claims that the Court should:– primarily, annul in full the contested decision in so far as it concerns it;– in the alternative, annul Article 1(1)(b), Article 1(2)(b), Article 1(3)(b), Article 1(4)(b), Article 3(b) and Article 4 of the contested decision and reduce the amount of the fines imposed on it in the contested decision;– in the further alternative, annul Article 3(b) and (d) of the contested decision and reduce the amount of the fines imposed on it;– in any event, order the Commission to pay the entirety of the costs.
75The Commission contends, in essence, that the Court should:– dismiss the action;– amend the amount of the fines imposed on the applicant by denying it the benefit of the general 50% reduction and the general 15% reduction if the Court considers that the turnover derived from sales of inbound freight services could not be included in the value of sales;– order the applicant to pay the costs.
III.Law…
A.Claims for annulment…
3.First plea in law, alleging that the practices of the former Air France and AF and some of the practices of KLM were unlawfully attributed to the applicant
213This plea, by which the applicant claims that the Commission unlawfully attributed to it practices of the former Air France and AF and some of the practices of KLM, is divided into two parts, the first alleging that the Commission unlawfully attributed to the applicant practices of AF from 15 September 2004 and those of KLM from 5 May 2004, and the second alleging that the Commission unlawfully attributed to the applicant practices of the former Air France that took place between 7 December 1999 and 15 September 2004.
214Furthermore, the applicant criticises the Commission for stating, in recital 1085 of the contested decision, that it and AF should be held jointly and severally liable for payment of the fine because of their participation in the infringement. The applicant did not, in fact, take any part, either directly or indirectly, in the alleged practices, and only AF was involved.
215The Court will rule on that ground for complaint together with the second part of the present plea since the two are intrinsically linked.
(a)The first part of the plea, alleging that the Commission unlawfully attributed to the applicant practices of AF from 15 September 2004 and those of KLM from 5 May 2004
216This part of the plea, by which the applicant asserts that the Commission illegally attributed to it the practices of AF from 15 September 2004 and those of KLM from 5 May 2004, falls into four grounds for complaint. They concern: first, an error in attributing to the applicant practices of KLM from 5 May to 15 September 2004; second, insufficient grounds for rejecting the evidence demonstrating the independence of AF and KLM; third, errors in attributing to the applicant practices of AF and KLM from 15 September 2004; and, fourth, an infringement of the principle of personal liability and the principle that penalties must be specific to the offender.
217It is necessary to first examine the second ground for complaint, which relates to compliance by the Commission with essential procedural requirements.
(1)The second ground for complaint, alleging insufficient grounds for rejecting the evidence demonstrating the independence of AF and KLM
218The applicant contends that the Commission did not give sufficient reasoning for its rejection of the evidence demonstrating the independence of AF and KLM, merely making an implicit reference to that evidence and claiming that, with regard to AF, it was not sufficient to rebut the presumption of exercise of decisive influence. According to the applicant, the Commission was, however, obliged to specifically consider all the evidence showing that independence and to adopt a position on the basis of detailed reasons in respect of the rebuttal of the presumption of liability. The simple reference in recital 1083 of the contested decision to the case-law cited in recital 1073 thereof and the elements listed in the confidential annex to that decision cannot be sufficient. With regard to KLM, the Commission’s obligation to state reasons was even greater since it acknowledged that it did not apply the presumption of liability. However, it failed even to mention in the contested decision the evidence intended to establish KLM’s independence. The Commission acknowledged before the Court that, in the decision in question, it did not give reasons for its rejection of the probative value of the evidence produced during the administrative procedure.
219The Commission disputes the applicant’s line of argument.
220It should be noted, at the outset, that infringement of the competition rules by a subsidiary may be imputed to the parent company in particular where, although having separate legal personality, that subsidiary does not decide independently upon its own conduct on the market but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 30).
221In such a situation, since the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 101 TFEU, the Commission may address a decision imposing fines to the parent company without having to establish the personal involvement of the latter in the infringement (judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 31).
222The Court of Justice has made it clear that, in the particular case of a parent company with a 100% shareholding in a subsidiary which has infringed the European Union’s competition rules, that parent company is able to exercise decisive influence over the conduct of its subsidiary, and there is a rebuttable presumption that the parent company does in fact exercise such influence (judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 32).
223In those circumstances, it is sufficient for the Commission to prove that the entire share capital of a subsidiary is held by its parent in order for it to be presumed that the parent exercises decisive influence over the commercial policy of that subsidiary. The Commission will then be able to regard the parent company as jointly and severally liable for payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 33).
224Moreover, where a decision concerning the application of EU competition rules affects several addressees and relates to the attribution of liability for the infringement, the decision must contain an adequate statement of reasons with respect to each of the addressees, in particular those who, according to that decision, must bear the liability for the infringement. Accordingly, with regard to a parent company held responsible for the unlawful conduct of its subsidiary, such a decision must, as a general rule, contain a statement of reasons capable of justifying the attribution of liability for that infringement to the parent company (judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 34).
225As regards, in particular, a Commission decision which relies exclusively, with respect to certain addressees, on the presumption that they actually exercised decisive influence, the Commission is in any event required – if it is not to render that presumption in reality irrebuttable – to explain adequately to those addressees the reasons why the elements of fact and of law put forward did not suffice to rebut that presumption (judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 35).
226However, the Commission is not in any way bound to rely exclusively on that presumption. There is nothing to prevent the Commission from establishing that a parent company actually exercises decisive influence over its subsidiary by means of other evidence or by a combination of such evidence and that presumption. This is referred to as the ‘dual basis’ method (judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraphs 36 and 37).
227With regard to a decision which bases its determination whether an infringement committed by a subsidiary may be imputed to the parent company using a ‘dual basis’ method, a global assessment of the evidence provided by the parent company, in so far as that evidence is relevant for the purpose of rebutting that presumption, is, in principle, commensurate with the degree of reasoning required on the part of the Commission, since it enables the parent company to be apprised of the reasons why the Commission has decided to impute liability to it for the infringement committed by its subsidiary (see, to that effect, judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 42).
228Lastly, it is settled case-law that, although the Commission is obliged to state the reasons on which its decisions are based, mentioning the factual and legal elements which provide the legal basis for the measure in question and the considerations which have led it to adopt its decision, it is not required to discuss all the issues of fact and of law raised by every party during the administrative proceedings, and, in particular, it is not required to adopt a position on factors which are manifestly irrelevant, unimportant or clearly ancillary (see judgment of 6 February 2014, Elf Aquitaine v Commission, T‑40/10, not published, EU:T:2014:61, paragraph 168 and the case-law cited).
229In the present case, first, as regards the rejection of the evidence put forward by the applicant to demonstrate the independence of AF, the Commission, after having noted, in recitals 1070 to 1073 of the contested decision, the principles applicable in identifying the undertakings that will be held accountable for an infringement within a single economic unit, stated the following in recitals 1081 to 1084 of that decision:‘1081 From 15 September 2004 until 14 February 2006 participation in the infringement took place via employees of [AF].1082 However, during the same period, [the applicant] owned 100% of the economic and voting rights in [AF].1083 In line with the case-law referred to [in section 6.1 of that decision], it is therefore presumed that, during that period, [the applicant] exercised decisive influence over [AF]. [The applicant] has not submitted sufficient evidence to rebut the presumption that it exercised decisive influence over [AF]. Consequently, [the applicant] and [AF] form part of the same undertaking that committed the infringement from 15 September 2004 until 14 February 2006 for the purposes of the application of Article 101 of the TFEU, Article 53 of the EEA Agreement, and Article 8 of the [EC-Switzerland Agreement on Air Transport].1084 In addition to full ownership, there are further elements that demonstrate that, during that period, [the applicant] exercised decisive influence over [AF] or, at least, that corroborate the presumption to that effect (see confidential annex [to that decision] accessible only to [the applicant]).’
230The confidential annex to the contested decision, listing the other evidence referred to in recital 1084 thereof, reads as follows, as regards AF:[confidential]note
231It follows that, in attributing AF’s practices to the applicant, the Commission relied both on the presumption of the effective exercise of decisive influence – because of the control implied by the applicant’s ownership of all of AF’s capital and of the voting rights associated with AF’s shares – and on a series of indications establishing that decisive influence had effectively been exercised. In that respect, it relied, first, on the applicant’s powers of direction, guidance and control over AF’s activities through its various corporate bodies, second, on the existence of a common structure between AF and KLM specifically with regard to freight and, third, on the fact that several managers hold the same position within both the applicant and AF.
232As regards the rejection of the evidence adduced by the applicant to show the independence of KLM, the Commission stated the following in recitals 1086 to 1088 of the contested decision:‘1086 Throughout the period of infringement from 21 December 1999 until 14 February 2006, participation in the infringement took place via employees of [KLM]. KLM should be held liable for its direct participation in the infringement.1087 As explained [in section 2.2 of that decision], on 5 May 2004 [the former Air France] acquired control of KLM. [The applicant] has held 97.5% of the economic rights and 49% of the voting rights in KLM since 5 May 2004.1088 For the reasons outlined in the confidential annex [to this decision] accessible only to [the applicant], the Commission considers that, as from 5 May 2004, [the applicant] exercised decisive influence over KLM.’
233The confidential annex to the contested decision, listing the other evidence referred to in recital 1088 of the contested decision, reads as follows, as regards KLM:[confidential]
234It follows that, in attributing KLM’s practices to the applicant between 5 May 2004 and 14 February 2006, the Commission relied both on the capital and voting rights held by the applicant in KLM and on a series of additional indications establishing that decisive influence had effectively been exercised over KLM. In that respect, it relied, first, on the applicant’s powers of direction, guidance and control over KLM’s activities through its various corporate bodies, second, on the existence of a common structure at AF and KLM specifically with regard to freight and, third, on the fact that several managers hold the same position within both the applicant and KLM.
235However, the applicant merely stated in its response to the statement of objections that it was ‘a holding company with no operational activity in the field of air transport’ and that it had not ‘under any circumstances been involved in any way whatsoever in the alleged practices’.
236In the light of the foregoing, the Commission cannot be validly criticised for not having supplied detailed reasoning, in accordance with the requirements of the case-law, with respect to its rejection of the evidence of AF and KLM’s independence.
237In addition, the four judgments cited by the applicant in the application, concerning the level of reasoning required of the Commission where there is contrary evidence put forward during the administrative procedure and intended to rebut the presumption of effective exercise of decisive influence, were decided in a different context from the present case.
238On the one hand, in its judgment of 29 September 2011, Elf Aquitaine v Commission (C‑521/09 P, EU:C:2011:620), the Court of Justice had specifically taken special circumstances into account arising from a change in the Commission’s previous decision-making practice of systematically relying on the dual-basis method (see, to that effect, order of 7 February 2012, Total and Elf Aquitaine v Commission, C‑421/11 P, not published, EU:C:2012:60, paragraph 58).
239On the other hand, it is necessary to assess the scope of the judgments of 16 June 2011, Air liquide v Commission (T‑185/06, EU:T:2011:275), of 16 June 2011, Edison v Commission (T‑196/06, EU:T:2011:281), and of 27 November 2014, Alstom v Commission (T‑517/09, EU:T:2014:999), in the light of the Court of Justice’s case-law cited in paragraphs 226 and 227 above, according to which, when the Commission combines – as in the present case with regard to attributing AF’s practices – evidence of the effective exercise of decisive influence with the presumption of such exercise, it gives sufficient reasons for its rejection of evidence to the contrary produced by the defendant undertaking through the use of a global assessment which does not rule on each of those elements.
240This ground for complaint must therefore be rejected.
(2)The first ground for complaint, alleging an error in attributing to the applicant practices of KLM from 5 May to 15 September 2004
241The applicant argues that it was only incorporated as a holding company on 15 September 2004. According to the applicant, a parent company cannot be held liable for an infringement by its subsidiary in the period prior to the acquisition of that subsidiary where the subsidiary continues to operate in the relevant market after its acquisition. Consequently, it submits that it cannot be held liable for KLM’s practices from 5 May 2004 onwards, contrary to what is stated in paragraph 1089 of the contested decision.
242The Commission disputes the applicant’s argument.
243It is apparent in the present case from recital 1087 of the contested decision that the applicant has held 97.5% of the capital and 49% of the voting rights in KLM since 5 May 2004.
244Admittedly, as the applicant rightly points out, the entity holding that shareholding and those voting rights in KLM on 5 May 2004 was called Air France SA, thus the former Air France (see, in that respect, paragraph 53 above).
245However, it is common ground between the parties that the applicant and the former Air France are one and the same legal person. It is true that the Commission referred to the concept of ‘legal succession’ in recital 1080 of the contested decision. However, it is clear from that recital and from recital 22 of that decision that the former Air France ‘became’ the applicant, following a transformation into a holding company and a change of company name.
246In particular, the Commission stated as follows in recital 22:‘On 5 May 2004 [the former Air France] acquired sole control of [KLM] by the way of a public offer of exchange by [the former Air France] on the shares of KLM. Since that date [the former Air France] and KLM form part of the group [AF]-KLM. On 15 September 2004 [the former Air France] was transformed into a holding company and renamed [AF]-KLM, while the air transportation activities of [the former Air France] were transferred to a subsidiary named “Air France Compagnie Aerienne” that has been renamed [AF]’.
247Thus, with regard to its control of KLM from 5 May to 15 September 2004, the applicant continued to exercise the rights and assume the obligations it had acquired when it was still operating under the name of the former Air France.
248Consequently, the applicant is wrong to assert that, by attributing to it the practices of KLM from 5 May to 15 September 2004, the Commission held it responsible for the infringement by its subsidiary for the period before its acquisition.
249This ground for complaint must therefore be rejected.
(3)The third ground for complaint, alleging errors in attributing to the applicant practices of AF and KLM from 15 September 2004
250The applicant alleges that the Commission erred in attributing to it the practices of AF and KLM from 15 September 2004, since it did not exercise decisive influence over those undertakings. It claims that since 15 September 2004 it is merely a financial holding company that is not active in the freight sector. It maintains that its role is simply, on the one hand, one of coordination and financial consolidation, consisting of ensuring compliance with legal obligations in relation to accounting and financial disclosures and transparency, and, on the other hand, a role in determining the overall strategy of AF and KLM, without, however, interfering in their operational and commercial activities or giving them any instructions whatsoever. AF and KLM determine their commercial policies, strategies, budgets and behaviour in the freight sector independently.
251In that respect, the applicant argues that the elements referred to by the Commission in the confidential annex to the contested decision do not demonstrate the exercise of decisive influence over AF and KLM. First, it argues that its Strategic Management Committee has never made any ‘binding recommendations’ to AF and KLM. Second, it states that there is no hierarchical relationship, through its Board of Directors and Strategic Management Committee, between it and AF and KLM. All the decisions relating to AF’s and KLM’s freight business during the relevant period were entrusted to AF Cargo and KLM Cargo and to the Joint Cargo Management Committee (‘the JCMC’). Third, the applicant submits that none of the members of its governing bodies referred to in that annex who were members of AF or KLM governing bodies during the period in question interfered in AF’s or KLM’s freight activities. Fourth, it argues that the JCMC is merely a coordinating body for AF’s and KLM’s freight business and only acted in relation to those subsidiaries, so that it would not have been able to use it to interfere in AF’s or KLM’s commercial policies.
252The Commission disputes the applicant’s arguments.
253As a preliminary point, a distinction must be made as to whether the present ground for complaint is directed against the Commission’s assessments concerning the attribution of AF’s practices or against those concerning the attribution of KLM’s practices.
254In the first case, given the presumption of effective exercise of decisive influence by reason of the control implied by the applicant’s ownership of the entirety of AF’s capital and of the voting rights associated with AF’s shares, it is the responsibility of the parent company – in accordance with the case-law referred to in paragraph 223 above – to provide evidence to demonstrate to a sufficient degree that its subsidiary behaved independently on the market and, in so doing, to rebut that presumption.
255In the second case, as that presumption does not apply, the applicant is required only to establish that the Commission has not demonstrated to the requisite legal standard that KLM did not independently determine its conduct on the market.
256In the present case, it should be noted that the applicant has put forward several arguments against the elements that the Commission included in the confidential annex to the contested decision to establish that decisive influence had been exercised over AF. Nevertheless, those arguments should be taken into account in order to determine whether the Commission was right to consider that the applicant had not rebutted the presumption in question. In fact, those arguments are essentially based on the same factual circumstances as those put forward by the applicant to rebut the presumption. As for the factual allegations cited in support of the arguments against that evidence, but which the applicant did not use to rebut that presumption, the Court should take them into account as a relevant factor for the purpose of assessing whether AF decided upon its own conduct on the market independently (see, to that effect, judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 33). That is particularly the case for the claim that there were no ‘binding recommendations’ issued by the applicant’s Strategic Management Committee.
257It is in the light of those considerations that the present ground for complaint must be examined.
258First, it must be observed that the applicant’s assertion that it was a holding company is not, of itself, sufficient to preclude the possibility that it exercised decisive influence over AF and KLM (see, to that effect, judgments of 24 March 2011, Legris Industries v Commission, T‑376/06, not published, EU:T:2011:107, paragraphs 50 and 51, and of 14 July 2011, Arkema France v Commission, T‑189/06, EU:T:2011:377, paragraph 74). Indeed, in the context of a group of companies, a holding company that coordinates, inter alia, financial investments within the group is a company which is in a position to regroup shareholdings in various companies and whose function is to ensure that they are run as one, including by means of such budgetary control (judgment of 15 July 2015, HIT Groep v Commission, T‑436/10, EU:T:2015:514, paragraph 125).
259As for the fact that the applicant determined the overall strategy for AF and KLM and as for the broad scope of that strategy, in that it encompassed most of the development levers of the group of which the applicant is the ultimate parent, far from attesting to an absence of decisive influence, that tends, on the contrary, to support the conclusions reached by the Commission in the contested decision.
260Assuming, as the applicant claims, that that role does not lead to interference in the operational and commercial activities of AF and KLM, it is important to bear in mind that the decisive influence that could justify attributing responsibility to the parent company for the infringement committed by its subsidiary can neither only concern the commercial policy stricto sensu of that subsidiary (judgment of 23 January 2014, Gigaset v Commission, T‑395/09, not published, EU:T:2014:23, paragraph 45), nor can it necessarily be linked to the day-to-day management of that subsidiary (judgment of 26 September 2013, The Dow Chemical Company v Commission, C‑179/12 P, not published, EU:C:2013:605, paragraph 64).
261In addition, it should be noted that the applicant’s assertion that it did not interfere in the operational and commercial activities of its subsidiaries is not only unsupported by any evidence, but is partly contradicted by its earlier statements, made in its response of 29 June 2007 to the Commission’s questionnaire of 12 June 2007 sent during the investigation and annexed to the application. Indeed, according to those statements, ‘[the applicant’s] Board of Directors … intervened … in relation to the major commercial policies for the core business lines of the Air France-KLM Group’.
262Second, as regards the argument that AF and KLM determined their commercial policies, strategies, budgets and behaviour in the freight sector independently, the Court notes that the applicant is once again simply making assertions. Further, the applicant’s argument is based essentially on the independence of the AF Cargo and KLM Cargo departments from the entities to which they belong, AF and KLM respectively, and does not, therefore, make it possible to establish the independence of AF and KLM in relation to the applicant. Finally, the examples of areas, mentioned by the applicant, in which the alleged independence of AF Cargo and KLM Cargo is exercised – such as, in operational terms, the implementation of logistics operations inherent in the freight business or, on a strategic level, the creation and setting of a surcharge – are not in contradiction with the more general strategic guidance that the applicant itself claims to provide. Indeed, a division of tasks is a normal phenomenon within a group of companies (see, to that effect, judgment of 14 July 2011, Arkema France v Commission, T‑189/06, EU:T:2011:377, paragraph 76).
263Third, as for the applicant’s Strategic Management Committee not issuing ‘binding recommendations’ to AF and KLM, that concerns the legal links between the applicant and its subsidiaries. In those circumstances, although that non-issuance has been invoked to contest the elements listed in the confidential annex to the contested decision, it is necessary to examine at this stage whether it could raise doubts about the Commission’s findings concerning the lack of independence of its subsidiaries.
264First, it should be observed that the applicant has failed to produce any evidence in support of that claim, such as minutes or reports from meetings of the Strategic Management Committee.
265Second, the Court notes that the applicant does not dispute the fact that the Strategic Management Committee met between its creation in 2004 and the end of the infringement period. Moreover, it appears from its response of 29 June 2007 to the Commission’s questionnaire of 12 June 2007 that that committee had indeed met during this period and that it ‘[had] … dealt mainly with [strategic] issues’.
266Given the role and remit of the Strategic Management Committee, as shown in the extracts from the applicant’s annual reports for 2004/2005 and 2005/2006, attached to its response of 29 June 2007, it seems hardly credible that the deliberations of that committee were not specifically aimed at coordinating the strategies of the subsidiaries AF and KLM. Indeed, according to those extracts, ‘the decisions [of that committee] express the joint position of [AF] and KLM for any significant strategic decisions that affect commercial, financial, technical and operational areas …’.
267Specifically with regard to ‘binding recommendations’, it is stated that ‘the [Strategic Management Committee] will make mandatory recommendations on the issues listed above to [AF’s] Board of Directors, the Management Board and the Supervisory Board of KLM’ and that ‘neither the Chairman of the Management Board of KLM, the Chairman of [AF’s] Board of Directors nor any chairman, director or key employee of the combined entities or their subsidiaries, depending on the case, may take or implement any decisions that come under the competence of the [Strategic Management Committee] unless the SMC has previously issued its binding recommendation’. It is thus apparent that AF’s and KLM’s involvement in a number of areas inherent to their activity was conditional on the adoption, at the level of the applicant’s Strategic Management Committee, of binding (or mandatory) recommendations. In the present case, the applicant has not provided the slightest evidence or contextual factor that could enlighten the Court as to a possible relinquishment by that committee of its specific prerogatives.
268In the light of the above, the Court must conclude that the applicant has not succeeded in rebutting the presumption – inferred from the control implied by its ownership of all of AF’s capital and of the voting rights associated with AF’s shares – that it effectively exercised decisive influence over AF during the period between 15 September 2004 and 14 February 2006.
269As to the Commission’s finding that the applicant did in fact exercise decisive influence over KLM, no error in the Commission’s assessment is apparent from the examination in paragraphs 258 to 267 above of the applicant’s first set of arguments in support of the present ground for complaint.
270It therefore only remains for the Court to assess the arguments put forward by the applicant relating to the elements listed in the confidential annex to the contested decision concerning its links with KLM, as those relating to AF should be rejected as ineffective since the applicant has failed to prove that the Commission erred in relying on the presumption in question.
271First, as regards the applicant’s claim that the Strategic Management Committee did not adopt any ‘binding recommendations’, reference should be made to the discussion in paragraphs 263 to 267 above. Moreover, the Commission relied in the contested decision on the power of that committee to adopt such recommendations (see paragraph 233 above), while the existence of such a power is not disputed by the applicant. The fact that the applicant has the possibility of determining the strategy of its subsidiary in such a way is in itself evidence of the existence of a power of direction that could raise doubts about the independence of that subsidiary’s behaviour.
272Second, as regards the applicant’s argument that there is no ‘hierarchical dependent relationship’ between it, through its Board of Directors and its Strategic Management Committee, and KLM, that should be rejected for the same reasons as given in paragraph 262 above.
273Third, the applicant has no legitimate basis to claim that none of the members of its governing bodies referred to in the confidential annex to the contested decision who were members of AF’s or KLM’s governing bodies during the period in question interfered in AF’s or KLM’s freight activities. To do so, it relies on the fact that all the decisions relating to the freight business had been entrusted within KLM to the KLM Cargo department or to the JCMC.
274However, that argument should be rejected for the same reasons as given in paragraph 262 above.
275Moreover, the applicant has merely asserted, without supporting evidence, that the individuals with management functions or offices within both its corporate bodies and those of KLM did not interfere in the freight activities. Apart from being unsubstantiated, that assertion does not, as such, invalidate the existence of those overlaps, whereas it is settled case-law that the extent of the parent company’s involvement in the management of its subsidiary may also be proved by the presence, in leading positions of the subsidiary, of many individuals who occupy managerial posts within the parent company (see judgment of 9 September 2015, Toshiba v Commission, T‑104/13, EU:T:2015:610, paragraph 100 and the case-law cited).
276Fourth, it is fruitless for the applicant to argue that the JCMC was merely a coordinating body for AF’s and KLM’s freight business and only acted in relation to those subsidiaries, so that the applicant could not use it to interfere in AF’s or KLM’s respective commercial policies.
277On that point, in the confidential annex to the contested decision, the Commission noted that [confidential] (see paragraph 233 above). As the applicant rightly points out, the information in the file, and in particular its response of 29 June 2007 to the Commission’s questionnaire of 12 June 2007, shows a single structure organised within the freight departments of the subsidiaries AF and KLM. It does not appear that that structure was established within the applicant or that it in any other way manifested the decisive influence that the applicant exercised over its subsidiaries.
278The fact nonetheless remains that the other reasons – which have not been validly challenged – put forward by the Commission to support its having attributed to the applicant the practices of KLM from 5 May 2004, namely, first, ownership of 97.5% of KLM’s capital and 49% of its voting rights, second, the applicant’s powers of direction, guidance and control over KLM’s activities through its Board of Directors and its Strategic Management Committee, and, third, the presence, in leading positions within KLM, of several individuals who occupied managerial posts and held company offices within the applicant, are sufficient to establish that the applicant effectively exercised decisive influence over KLM.
279On the basis of the foregoing, this ground for complaint should be rejected.
(4)The fourth ground for complaint, alleging an infringement of the principle of personal liability and the principle that penalties must be specific to the offender
280The applicant claims that the attribution to it of AF’s practices after 15 September 2004 and those of KLM after 5 May 2004 infringes the principle of personal liability and the principle that penalties must be specific to the offender.
281The Commission disputes the applicant’s arguments.
282It should be noted that, in accordance with the principle of personal liability and the principle that penalties must be specific to the offender, which are applicable in any administrative procedure which may lead to the imposition of penalties under the EU competition rules, an undertaking may be penalised only for acts imputed to it individually (see, to that effect, judgments of 13 December 2001, Krupp Thyssen Stainless and Acciai speciali Terni v Commission, T‑45/98 and T‑47/98, EU:T:2001:288, paragraph 63; of 3 March 2011, Siemens and VA Tech Transmission & Distribution v Commission, T‑122/07 to T‑124/07, EU:T:2011:70, paragraph 122; and of 11 July 2014, RWE and RWE Dea v Commission, T‑543/08, EU:T:2014:627, paragraph 68).
283However, that principle must be reconciled with the concept of undertaking and with the case‑law according to which the fact that the parent company and its subsidiary constitute a single undertaking for the purposes of Article 101 TFEU empowers the Commission to address the decision imposing fines to the parent company of a group of companies (see, to that effect, judgments of 3 March 2011, Siemens and VA Tech Transmission & Distribution v Commission, T‑122/07 to T‑124/07, EU:T:2011:70, paragraph 122, and of 11 July 2014, RWE and RWE Dea v Commission, T‑543/08, EU:T:2014:627, paragraph 69). Indeed, even if the parent company does not participate directly in the infringement, it exercises, in such a case, decisive influence over the subsidiaries which have participated in it. It follows that, in that context, the liability of the parent company cannot be regarded as strict liability (see, to that effect, judgment of 10 September 2009, Akzo Nobel and Others v Commission, C‑97/08 P, EU:C:2009:536, paragraph 77).
284In such a situation, the parent company is penalised for an infringement which it is deemed to have committed itself (see, to that effect, judgments of 10 September 2009, Akzo Nobel and Others v Commission, C‑97/08 P, EU:C:2009:536, paragraph 77; of 17 May 2011, Elf Aquitaine v Commission, T‑299/08, EU:T:2011:217, paragraph 180; and of 27 June 2012, Bolloré v Commission, T‑372/10, EU:T:2012:325, paragraph 52).
285In the present case, in so far as the applicant bases the present ground for complaint on the absence of the exercise of decisive influence over AF and KLM, without providing elements not already raised in the context of the previous grounds for complaint, it is sufficient for the Court to note that the examination of the first and third grounds for complaint of the first plea in law shows that the Commission has demonstrated to the requisite legal standard that the applicant exercised such influence over its subsidiaries during the periods in question. It therefore follows that this ground for complaint is based on a false premiss.
286Moreover, since it is error-free, and taking into account the case-law referred to in paragraphs 282 and 283 above, the attribution to the applicant of AF’s practices from 15 September 2004 and those of KLM from 5 May 2004 does not infringe the principle of personal liability and the principle that penalties must be specific to the offender.
287Accordingly, the present ground for complaint must be rejected.
288Consequently, the first part of the first plea in law must be dismissed in its entirety.
(b)The second part of the plea, alleging that the Commission unlawfully attributed to the applicant practices of the former Air France taking place between 7 December 1999 and 15 September 2004
289This part of the plea in law, by which the applicant asserts that the Commission has committed several illegal acts by attributing to it the practices of the former Air France between 7 December 1999 and 15 September 2004, which is contested by the Commission, is divided into three grounds for complaint. Those grounds allege, first, an infringement of the obligation to state reasons, second, errors in attributing those practices to the applicant for the period in question, and, third, an infringement of the principle of personal liability and the principle that penalties must be specific to the offender.
290It should be pointed out, first of all, that the Commission broke the contested decision down into three separate steps. First, in recital 1080 of that decision, it attributed the actions of the former Air France for the period from 7 December 1999 to 15 September 2004 to the applicant in its capacity as a ‘successor’. It relied on the fact that, on 15 September 2004, the former Air France had ‘become’ the applicant following a transformation into a holding company and a change of corporate name and object, as stated in recital 22 of the contested decision.
291Second, for the period from 15 September 2004 to 14 February 2006, the Commission found, in recitals 1083 and 1084 of the contested decision, that the applicant exercised decisive influence over AF.
292Third, in recital 1085 of the contested decision, the Commission inferred from the evidence set out in paragraphs 290 and 291 above that the applicant and AF should be held jointly and severally liable for payment of the fine because of their participation in the infringement from 7 December 1999 to 14 February 2006.
293As the Commission essentially confirmed during the hearing, that assertion that the applicant participated in the single and continuous infringement is based on the finding that the legal person directly involved in committing the single and continuous infringement up to 15 September 2004 and the applicant were one and the same legal person, distinguished only by their corporate names and objects, which had since been changed (see paragraphs 244 and 290 above).
(1)The first ground for complaint, alleging an infringement of the obligation to state reasons
294The applicant maintains that the contested decision does not give sufficient reasons for the attribution to it of the practices of the former Air France between 7 December 1999 and 15 September 2004. It criticises recital 1080 of the contested decision, which does not make it possible to understand the status attributed to the applicant with regard to the former Air France during that period and, in particular, whether it was considered as the economic or legal successor, or indeed both, to that company.
295Recital 1080 of the French version of the contested decision has been amended as compared with the decision of 9 November 2010. The applicant states that, whereas recital 1056 of that latter decision stated that it and AF were respectively the economic and legal successors of the former Air France, as it existed prior to 15 September 2004, recital 1080 of the contested decision no longer includes the adverb ‘respectively’. That change resulted from the error acknowledged by the Commission before the Court in the case giving rise to the judgment of 16 December 2015, Air France-KLM v Commission (T‑62/11, not published, EU:T:2015:996). The applicant also observes that no such change was made, however, in the Dutch and English versions of that same decision, according to which, in the latter recital, it is not the applicant but rather AF that is designated as the economic successor to the former Air France.
296The Commission disputes the applicant’s argument.
297In that regard, it should be borne in mind that the statement of reasons must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to exercise its jurisdiction to review legality (see, to that effect, judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 147).
298Compliance with the requirement 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 under 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 of the third indent of Article 41(2) of the Charter [of Fundamental Rights of the European Union] 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).
299As stated in paragraphs 245 to 247 above, it is apparent from recital 1080 of the contested decision that the Commission attributed to the applicant the practices of the former Air France during the period concerned based on the circumstance that the applicant resulted from the transformation of the former Air France into a holding company.
300In so doing, the Commission disclosed in a clear and unequivocal fashion the reasoning it followed in attributing those practices to the applicant, in such a way as to enable the applicant to ascertain the reasons for its decision and to enable the Court to exercise its jurisdiction to review legality.
301None of the arguments put forward by the applicant casts doubt on that conclusion.
302While it is true that [the French version of] recital 1080 of the contested decision states, as the applicant points out, that the applicant ‘and [AF] are …the economic and legal successors of the former Air France as it existed prior to 15 September 2004’, that reference cannot, however, be read in isolation.
303Indeed, in recital 1080 of the contested decision, the findings which immediately precede the reference in question, and which are formulated in support of it, concern, respectively, the legal continuity between the former Air France and the applicant and the economic continuity between the former Air France and AF. Similarly, in the English and Dutch versions of the decision, the reference reads as follows: ‘Therefore [the applicant] and [AF] are, respectively, the legal and economic successors of the former Société Air France …’. It follows that that reference should, first, be regarded as a simple clerical error and, second, be interpreted as holding the applicant liable exclusively on the basis of the legal continuity established with the former Air France, as the Commission, moreover, agreed at the hearing.
(2)The second ground for complaint, alleging errors in attributing to the applicant the practices of the former Air France for the period from 7 December 1999 to 15 September 2004
304The applicant contends that the Commission has wrongly attributed to it, for the period prior to its creation, namely between 7 December 1999 and 15 September 2004, the practices of the former Air France, irrespective of whether recital 1080 of the contested decision is interpreted as meaning that it is the ‘economic successor’ to that company, or its legal successor, or indeed both, on the same basis as AF.
305The Commission disputes the applicant’s arguments.
306It should be noted that the applicant points in the application to three scenarios in which it would be held liable for the practices of the former Air France for the period from 7 December 1999 to 15 September 2004. Those are, first, a scenario in which the applicant is the latter’s economic successor, second, a scenario in which the applicant is its legal successor, and, third, a scenario in which the applicant is its economic and legal successor. In terms of legal succession, the applicant simply refers to the case-law set out under the first part of the present plea in law. In general, that reference covers the conditions for attributing to a parent company the anticompetitive conduct of its subsidiary prior to the acquisition of that subsidiary.
307However, the applicant fails to explain how the case-law cited precludes liability from being attributed to it for the practices of the former Air France. Moreover, the situations covered by that case-law are different from those in this case. Indeed, the applicant did not acquire the former Air France, but rather it results from a change in the corporate name and object of that company, thus ensuring the legal continuity of the rights and obligations of the former Air France with regard to its activities from 7 December 1999 to 15 September 2004.
308At the hearing, the applicant added that basing AF’s liability for the anticompetitive conduct of the former Air France on economic continuity between those two entities would frustrate a ‘sharing of responsibility’ with the applicant. The Commission could not therefore decide to transfer liability for the actions of the former Air France to AF and at the same time attribute those actions to the applicant.
309On that point, it should be borne in mind that it falls, in principle, to the legal or natural person managing the undertaking in question when the infringement was committed to answer for that infringement, even if, when the Decision finding the infringement was adopted, another person had assumed responsibility for operating the undertaking (judgment of 16 November 2000, Cascades v Commission, C‑279/98 P, EU:C:2000:626, paragraph 78).
310The circumstance that certain characteristics of the person managing the undertaking in question when the infringement was committed had changed – for example its name – does not call into question the continuity of its legal existence (see, to that effect, judgment of 16 November 2000, SCA Holding v Commission, C‑297/98 P, EU:C:2000:633, paragraphs 28 and 29).
311In the present case, it is clear from recitals 22 and 1080 of the contested decision, and it is not disputed, that the legal person involved in the single and continuous infringement occurring before 15 September 2004 continued to exist after that date, albeit with a change in its corporate name and object. The former Air France, the operational legal entity, thus ‘became’ the applicant, the parent company of the Air France-KLM Group.
312It follows, on the basis of the case-law referred to in paragraphs 309 and 310 above, that the Commission cannot be criticised for having applied the criterion of legal continuity in order to hold the applicant liable for the actions of the former Air France from 7 December 1999 to 15 September 2004.
313As for the fact that AF, as economic successor, is also attributed responsibility for those acts, it should be observed that a decision adopted in a competition matter with respect to several undertakings, although drafted and published as a single decision, must be regarded as a group of individual decisions establishing, in relation to each of the undertakings to which it is addressed, the breach or breaches which that undertaking has been found to have committed and, where appropriate, imposing on it a fine (judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 100). Thus, if an addressee of a decision decides to bring an action for annulment, the matter to be tried by the EU judicature relates only to those aspects of the decision which concern that addressee, while aspects concerning other addressees do not generally form part of the matter to be tried by the EU judicature (judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 66), save in a situation in which the liability of the parent company is wholly derived from that of its subsidiary (see, to that effect, judgment of 22 January 2013, Commission v Tomkins, C‑286/11 P, EU:C:2013:29, paragraphs 43 and 49).
314In so far as the applicant’s liability for the conduct of the former Air France is not derived from that of its subsidiary AF, it follows that it is not entitled, in the context of the present action, to allege a ground for complaint against the Commission for having attributed to that subsidiary the conduct of the former Air France from 7 December 1999 to 15 September 2004.
315In the light of the foregoing, the second ground for complaint must be rejected.
(3)The third ground for complaint, alleging an infringement of the principle of personal liability and the principle that penalties must be specific to the offender
316The applicant claims that attributing to it the practices of the former Air France between 7 December 1999 and 15 September 2004 infringes the principle of personal liability and the principle that penalties must be specific to the offender. It argues that it did not exist during that period and that it is not the economic successor to the former Air France.
317The Commission disputes the applicant’s line of argument.
318In that respect, the Court observes that the applicant’s argument is based on the erroneous premiss that it ‘did not exist’ at the time of the former Air France’s actions. In fact, as stated in paragraphs 293 and 311 above, the former Air France and the applicant are one and the same legal person, whose incorporation predates the actions of the former Air France from 7 December 1999 to 15 September 2004.
319In view of the above, the Court must reject the third ground for complaint and, consequently, the second part of this plea in law in its entirety.
320The ground for complaint raised as a preliminary point in this plea should also be rejected, in so far as it is based on the assertion that the applicant did not participate in the single and continuous infringement. It is clear from an examination of the present part of the plea that the applicant’s liability for the actions of the former Air France from 7 December 1999 to 15 September 2004 is not a derivative liability. This plea in law should therefore be rejected.
4.The second plea in law, alleging infringement of the 2002 Leniency Notice and of the principles of equal treatment, non-discrimination and the protection of legitimate expectations
321The applicant submits that the evidence provided by Lufthansa in its immunity application is inadmissible and should be removed from the file. Lufthansa was not eligible for immunity from fines as it had not ended its participation in the single and continuous infringement after lodging its immunity application and therefore breached the conditions laid down in point 11(b) of the 2002 Leniency Notice.
322Without the evidence in question, the Commission would have been unable to initiate the investigation, as it acknowledged in recital 1302 of the contested decision. Moreover, that evidence formed the basis of that decision, as is pointed out in recital 1250 of that same decision. The removal of that evidence from the file should therefore result in the decision being annulled in its entirety.
323The Commission disputes the applicant’s argument. First, it submits that the present plea is ineffective, inasmuch as the withdrawal of immunity from Lufthansa would not entail the inadmissibility of the documents submitted by it in the context of the immunity application. Second, it argues that Lufthansa had been made aware that any disclosure of that application was considered likely to have a negative impact on the proper conduct of the investigation and on the Commission’s ability to investigate and prosecute the cartel. Furthermore, the continued contacts between Lufthansa and the other incriminated carriers also occurred at the request of a competition authority of a third country.
324The applicant responds that the present plea is effective and that the arguments made by the Commission before the Court concerning the particular circumstances which justified the continuation of the infringement by Lufthansa after the immunity application was lodged are inadmissible, since they are not contained in the contested decision. It considers that such arguments, in that they were concealed from it, constitute an ‘infringement of the rights of defence through a breach of the principle of equality of arms’.
325The applicant therefore requests that the Court order the Commission to disclose the ‘details of the evidence’ of the new elements put forward in the statement of defence in order to ensure that the Court is fully informed about the circumstances in which the Commission and the competition authority of a third country encouraged Lufthansa to continue the infringement after 7 December 2005.
326It should be observed that the argument put forward by the applicant is based entirely on the premiss that failure to comply with the conditions laid down in point 11(b) of the 2002 Leniency Notice renders the evidence submitted in the context of an application for immunity inadmissible.
327That line of argument is based on the judgments of 12 December 2012, Almamet v Commission (T‑410/09, not published, EU:T:2012:676, paragraphs 39 and 40), and of 16 June 2015, FSL and Others v Commission (T‑655/11, EU:T:2015:383, paragraphs 44, 46 and 80), which show that EU law cannot accept evidence obtained in complete disregard of the procedure laid down for gathering it and designed to protect the fundamental rights of interested persons.
328It should be noted, however, that the conditions for granting immunity from fines are not procedural rules for the gathering of evidence. Indeed, they are linked to the reasons why a witness decides to cooperate with the authorities and do not as such have any bearing on the lawfulness of the evidence-gathering process or the admissibility of that evidence (see, to that effect, the Opinion of Advocate General Kokott in FSL and Others v Commission, C‑469/15 P, EU:C:2016:884, points 76 and 77).
329Furthermore, in so far as the applicant argues that admitting such evidence is contrary to certain fundamental safeguards or essential procedural requirements, which moreover are not specified in its pleadings, it should be noted that, according to the case-law, 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).
330It is true that, 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. That point establishes 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’.
331However, it is clear from point 37 of the 2006 Leniency Notice that point 31 thereof was to be applied from the moment of its publication to all pending applications for immunity (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 of the application submitted by Lufthansa to the Commission on 7 December 2005. That request was still pending on the date when the notice in question came into force, 8 December 2006.
332Furthermore, 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’. Such a statement can therefore be used as evidence by the Commission. The wording of point 31 of the 2006 Leniency Notice therefore only makes explicit the consequences that necessarily follow from keeping the statement on file.
333Moreover, contrary to what the applicant maintains, 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), in respect of statements made by a leniency applicant, from being extended to cover all the evidence provided by an undertaking in order to obtain immunity from fines.
334Thus, in the judgment of 12 December 2012, Novácke chemické závody v Commission (T‑352/09, EU:T:2012:673), the Court essentially relied on the voluntary nature of the cooperation provided by the undertaking seeking a reduction in the fine and on the terms of the Leniency Notice applicable to the facts of the case in order to conclude that the leniency applicant’s statement could be invoked as evidence, irrespective of the outcome of its leniency application.
335In the present case, first, the evidence provided by Lufthansa in its application for immunity, as with the statement from the leniency applicant in the case giving rise to the judgment of 12 December 2012, Novácke chemické závody v Commission (T‑352/09, EU:T:2012:673), was provided voluntarily.
336Second, neither the 2002 nor the 2006 Leniency Notice contains any provisions that would create an expectation on the part of undertakings willing to cooperate with the Commission as to the fate of evidence provided by those undertakings which, although granted conditional immunity from fines (in accordance with point 15 of the 2002 Notice or point 18 of the 2006 Notice), might not qualify for final immunity (in accordance with point 19 of the 2002 Notice or point 22 of the 2006 Notice). That situation stands in contrast to the clarification provided by those notices as to the fate of evidence provided in support of an application where the Commission determines that that application does not meet the conditions for the grant of conditional immunity. Indeed, in such a case, the undertaking may withdraw the evidence disclosed (see point 17 of the 2002 Notice and point 20 of the 2006 Notice).
337Furthermore, to automatically exclude evidence from the file that is provided by an undertaking that, although eligible for immunity from fines at the time it applies for immunity, ultimately does not meet the conditions for final immunity on the date when the infringement decision is adopted would undermine the effectiveness of the leniency procedure. The Commission would in fact be deprived of evidence that is by definition essential in establishing the infringement in question and the participation of undertakings in it, at a stage where the possibility of making up for that lack of evidence by means of additional investigative acts would be considerably reduced, in particular because of a risk of a reduction in the integrity of the evidence. Moreover, that could potentially make the successful outcome of the proceedings dependent on the goodwill of the immunity applicant, while the Commission would be hampered in effectively monitoring compliance with the conditions for granting immunity from fines, since the threat of not being granted immunity, in view of the consequences attached to it, would lose credibility.
338In the light of all of the above, Lufthansa’s failure to comply with the condition laid down in point 11(b) of the 2002 Leniency Notice, were it to be considered proven, is not such as to deprive the Commission of the possibility of using the evidence submitted in its leniency application.…
9.The eighth plea in law, alleging errors and an infringement of the principle of proportionality in the calculation of the duration of AF’s participation in the single and continuous infringement
498The applicant contends that the Commission committed manifest errors of assessment and infringed the principle of proportionality by finding that AF participated in the single and continuous infringement without interruption between 7 December 1999 and 14 February 2006. In the applicant’s view, apart from the contact between AF and Japan Airlines on 7 December 1999 referred to in recital 136 of the contested decision, the Commission only has sufficient evidence in relation to the applicant for the period from 19 January 2001 to 19 October 2005.
499The contacts on which the Commission relied to establish AF’s participation in the coordination relating to the fuel surcharge (‘the FSC’) during the period from 7 December 1999 to 19 January 2001 and the period after 19 October 2005 could not, in fact, be described as anticompetitive, since they concerned exchanges of public information (recitals 137, 140 to 142, 554, 563 and 574 of the contested decision), taking place outside the EEA (recitals 146, 152 and 182 of that decision) or which the Commission has not proved to be anticompetitive (recitals 530 and 556 of that decision).
500Furthermore, the Commission did not provide any valid evidence of AF’s participation in the components of the single and continuous infringement relating to the security surcharge (‘the SSC’) and the refusal to pay commissions for the periods after 19 October 2005 and 14 October 2005 respectively.
501In the reply, the applicant adds that the Commission cannot require it to prove that it publicly distanced itself from the contested cartel after 19 October 2005. According to the applicant, it is for the Commission to establish its involvement in the infringement after that date.
502The Commission disputes the applicant’s arguments.
503The Court must examine, first, those contacts that the applicant claims concerned exchanges of public information (recitals 137, 140 to 142, 554, 563 and 574 of the contested decision), second, those that it claims took place outside the EEA (recitals 146, 152 and 182 of the contested decision), and third, those that it claims have not been sufficiently demonstrated as anticompetitive (recitals 530 and 556 of that decision).
504In the application, the applicant also included the contacts described in recital 563 of the contested decision among those that it claimed took place outside the EEA. However, in response to the written questions from the Court, it stated that it was requesting that they be disregarded on the grounds that their anticompetitive nature was not sufficiently established.
505It should be noted, in the first place, that the contacts which the applicant claims concerned exchanges of public information in fact include three types of exchanges.
506First, the contacts in question include internal emails from other incriminated carriers in which specific reference is made to contacts with AF. Thus, in recital 137 of the contested decision, the Commission refers to an internal email from Japan Airlines of 20 December 1999. This email reports an exchange between a Japan Airlines employee and an AF representative in Japan. However, that exchange, which followed the contact between Japan Airlines and AF on 7 December 1999 – the anticompetitive nature of which is not contested by the applicant (see recital 136 of the decision) – did not relate solely to the introduction of the FSC, which had been publicly announced by AF the same day. In that exchange, AF’s representative in Japan also told Japan Airlines that ‘it will be announced in each market on and after 22 Dec’ and that AF’s head office had contacted those of other carriers, including Lufthansa, ‘to encourage to implement [in the] same ways following AF’.
507Second, the emails referred to in recitals 140 to 142 of the contested decision include internal emails from other carriers in which no specific contact between AF and one or more other carriers is mentioned. Those emails, which are dated 21 December 1999 and 3 January 2000, simply state the intention of AF and one or more other carriers to introduce an FSC. However, as indicated in paragraph 506 above, AF had already publicly announced the introduction of an FSC on 20 December 1999. The Commission has not pointed to any other evidence that would show that the authors of the internal emails referred to in those recitals were aware of AF’s intentions other than through that announcement. The reference in the internal email referred to in recital 141 of that decision to ‘press releases, information to the markets’ about the FSC that were planned ‘these days’, is too vague to demonstrate that.
508In those circumstances, the Commission had no legitimate basis, in recital 724 of the contested decision, to interpret the internal emails referred to in recitals 140 to 142 of that decision as supporting the existence of exchanges of information between AF and other carriers.
509Third, the emails referred to in recitals 554, 563 and 574 of the contested decision are emails where AF is the sender or one of the recipients.
510It is true that the information the applicant shared in those emails had already been publicly announced beforehand. However, it cannot be inferred from that circumstance that those emails could not be held against the applicant.
511Indeed, it should be pointed out, first, that the exchange of publicly accessible 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). In the present case, the emails referred to in recitals 554, 563 and 574 of the contested decision all concerned future changes in the amount of the FSC, which the applicant does not dispute was at the time the subject of anticompetitive coordination among the incriminated carriers.
512Second, it should be noted that the information exchanged in the emails referred to in recitals 554, 563 and 574 of the contested decision was not limited to information that AF had already publicly announced. Recital 554 of the decision refers to an email of 15 November 2005 in which AF not only reiterated but also confirmed the increase in the amount of the FSC that it had announced the day before. By doing so, AF further reduced the uncertainty about the changes in the level of the FSC.
513In recitals 563 and 574 of the contested decision, the Commission describes exchanges of information among the members of the Air Cargo Council Switzerland (‘the ACCS’). The exchange referred to in recital 563 of that decision began on 28 November 2005 and ended on 1 December 2005. The exchange referred to in recital 574 of that decision dates from 6 and 7 February 2006. Those two exchanges concerned not only the change in the level of the FSC that AF was planning to implement, but also the change in the level of the FSC that other incriminated carriers, including Swiss and SIA, were expecting to implement. AF does not establish or even allege that all that information had already been publicly announced in advance.
514In the second place, as regards the contacts that the applicant claims took place outside the EEA, the applicant argues that those fell outside the Commission’s territorial jurisdiction. In essence, it argues that the three contacts described in recitals 146 and 152 of that decision concerned inbound connections and took place before the entry into force of Council Regulation (EC) No 411/2004 and Decision of the EEA Joint Committee No 40/2005. As for the contact described in recital 182 of that decision, it concerned routes from Switzerland and predated the entry into force of the EC-Switzerland Agreement on Air Transport.
515Assuming that the contacts referred to in recitals 146, 152 and 182 of the contested decision concerned exclusively connections that, in the relevant periods, fell outside the Commission’s jurisdiction, it should be noted that the Commission may rely on contacts prior to the infringement period in order to build an overall picture of the situation and thus corroborate the interpretation of certain evidence (see, to that effect, 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 if the Commission was not competent to establish and sanction an infringement of the competition rules before that period (see, to that effect, judgments of 30 May 2006, Bank Austria Creditanstalt v Commission, T‑198/03, EU:T:2006:136, paragraph 89, and of 22 March 2012, Slovak Telekom v Commission, T‑458/09 and T‑171/10, EU:T:2012:145, paragraphs 45 to 52).
516In recitals 107 and 108 of the contested decision, under section 4.1, entitled ‘Basic principles and structure of the cartel’, 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’.
517In recitals 109, 110, 876, 889 and 1046 and in footnote 1323 of the contested decision, the Commission described the operating procedures of this ‘multi-level’ structure. In its view, 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 on surcharges were generally made by the head office of each carrier. The head offices of the carriers were in ‘contact with each other’ when a change to the surcharge level was imminent. The carriers coordinated their actions locally, partly to better implement the instructions received from their respective head offices and to adapt them to local market conditions and regulations, and partly to coordinate and implement local initiatives. In recital 111 of that decision, the Commission noted that local associations of carrier representatives were used for that purpose, especially in Switzerland.
518The contacts described in recitals 146, 152 and 182 of the contested decision fell precisely within that framework. Indeed, first, those contacts all concerned establishing or implementing the FSC in Singapore (recital 146), India (recital 152) and Switzerland (recital 182). Second, those contacts were either contemporaneous with discussions between head offices or decisions taken by head offices concerning surcharges (recital 146), or referred to instructions to consult the head office or reflected at local level announcements made or decisions taken previously at central level (recitals 152 and 182). Third, all of those contacts took place within the framework or on the fringes of local associations of airline representatives.
519In recitals 724 and 792 of the contested decision, the Commission relied on those contacts to corroborate its interpretation of other evidence, which is not alleged to be outside its jurisdiction. Thus, those contacts are among the many contacts at issue that the Commission cited in recital 724 of that decision as the basis for finding that AF had maintained ‘contacts with competitors on local level’. They are also among a number of contacts prior to 19 January 2001 that the Commission raised against AF in recitals 722 to 724 of that decision.
520It follows that the Commission did not exceed the limits of its jurisdiction by relying on the contacts described in recitals 146, 152 and 182 of the contested decision in order to construct an overall picture of the contested cartel and thus to corroborate the interpretation of the evidence it used to attribute liability to the applicant for the FSC component of the single and continuous infringement.
521However, it should be observed, as does the applicant, that the Commission has not established AF’s participation in one of those contacts, namely the official meeting of the Cargo Subcommittee (CSC) of the Board of Airline Representatives (BAR) in India described in recital 152 of the contested decision. Still, the applicant does not dispute that AF was invited to that meeting, as were all the members of the BAR CSC. The fact that the carriers in question intended to deal with the subject of the FSC with AF in itself constitutes an indication of that undertaking’s participation in the single and continuous infringement as regards the FSC (see, to that effect, judgment of 29 June 2012, GDF Suez v Commission, T‑370/09, EU:T:2012:333, paragraph 226). It is also clear from the information in the file that AF was aware of the purpose of that meeting. Indeed, following the informal meeting also described in that recital – AF’s participation in which the applicant does not dispute – the Chairman of the BAR CSC proposed that a formal meeting of the BAR CSC be organised so that an agreement on the FSC could be reached among the carriers concerned. It follows that it was legitimate for the Commission to take into account AF’s invitation to that meeting, as part of a broader series of indicators, to conclude, in recital 724 of that decision, that it had participated in discussions on the FSC within the BAR CSC in India.
522It follows from the above that the Commission was entitled to raise the contacts described in recitals 146, 152 and 182 of the contested decision as evidence against AF.
523In the third place, with regard to the contacts whose classification as anticompetitive is contested by the applicant, it should be noted that they include one meeting and several telephone calls. At the meeting, held on 19 October 2005 and referred to in recital 530 of the contested decision, AF and Lufthansa ‘assured each other of the consistent application of the surcharges, agreed that no further unilateral measures, such as the capping of the FSC by AF, would be repeated and that the forwarders should not receive a commission on the surcharges.’ The anticompetitive nature of that meeting cannot therefore be disputed. In its response to the Court’s written questions, the applicant indeed acknowledged that the meeting in question was part of the evidence that could be raised against it.
524The applicant’s challenge therefore focuses on the telephone calls referred to in recitals 530 and 556 of the contested decision. According to the applicant, those calls were made at the initiative of Lufthansa, with the sole aim of building up its leniency case. In the applicant’s view, those were ‘follow-up contacts’, which did not deal with any new issues, but simply aimed at maintaining an ‘artificial link’ with AF. Furthermore, it argues that the telephone calls of 21 November 2005 referred to in recital 556 of that decision were very short and that it is impossible to conclude that their purpose was to exchange information of an anticompetitive nature, since AF had announced a reduction in the FSC on the same day.
525None of those arguments can succeed.
526First, the applicant’s assertion that the telephone calls referred to in recitals 530 and 556 of the contested decision were made solely for the purpose of maintaining an artificial link with AF in order to build up Lufthansa’s immunity case is not based on any concrete evidence. In fact, the evidence in the file tends to show the opposite. Thus, the telephone call described in recital 530 of that decision replaced the follow-up meeting to the meeting of 19 October 2005, and the anticompetitive nature of that meeting has been established (see paragraph 523 above). In addition, the Commission referred in that decision to a number of other contacts that had taken place during that period and in which AF had participated (see, in particular, recitals 525 and 563). In addition, the two telephone calls described in recital 556 of that decision took place on 21 November 2005, namely on the same day as the publication of Lufthansa’s press release announcing a reduction in the FSC and two days after the meeting of 19 October 2005, which has been established as being anticompetitive (see paragraph 523 above).
527Second, the telephone calls described in recital 556 of the contested decision cannot be disregarded on the grounds that it is impossible to conclude that their purpose was to exchange information of an anticompetitive nature. Indeed, in addition to the fact that those calls took place on the same day as Lufthansa’s press release was published announcing a reduction in the FSC and two days after the meeting of 19 October 2005, they were made by Lufthansa’s Head of Pricing Policy, acknowledged by the applicant itself as having ‘played a central role in the practices internationally’. That Lufthansa employee had indeed already called AF to discuss the surcharges on previous occasions (recitals 357, 525 and 552 of that decision).
528As to the fact that the calls referred to in recitals 530 and 556 of the contested decision involved Lufthansa employees who allegedly knew that an application for immunity was being prepared, that does not detract from their anticompetitive nature. In addition, disregarding the calls described in those recitals on that ground would risk undermining the effectiveness of the leniency procedure by preventing the Commission from considering evidence gathered between the date on which an employee concerned becomes aware of his or her employer’s intention to apply for immunity and the date on which the infringement is terminated.
529Moreover, far from casting doubt on the anticompetitive nature of the contacts referred to in recital 556 of the contested decision, the fact that AF had announced a reduction in the FSC on 21 November 2005 tends rather to corroborate it. Indeed, as can be seen from that recital, the press release that Lufthansa sent to Lan Airlines on the same day, just before releasing it, also announced a reduction in the FSC.
530Third, contrary to the applicant’s contention, there is no need for a contact to be on a new subject or of a certain duration for it to be raised in evidence against an undertaking in proceedings in respect of an infringement of the competition rules.
531It follows that the Commission was justified in raising the telephone calls described in recitals 530 and 556 of the contested decision as evidence against the applicant.
532In view of all the above, the Court must consider that the Commission was entitled to raise the contacts described in recitals 137, 146, 152, 182, 530, 554, 556, 563 and 574 of the contested decision as evidence against AF, but it was not entitled to hold those described in recitals 140 to 142 of that decision against it.
533It is in the light of those considerations that the Court must determine whether the Commission could hold AF liable for the infringement between 7 December 1999 and 19 January 2001 and after 19 October 2005.
534As regards the period from 7 December 1999 to 19 January 2001, when only the FSC was in force, it should be noted that the Commission had several pieces of evidence which it could validly raise against AF. Those are, first, the exchange between AF and Japan Airlines of December 1999 (recital 137 of the contested decision); second, a statement by Cathay Pacific Airways (CPA) that a meeting would be held in India ‘around January 2000’ (recital 152 of the contested decision); third, the minutes of a meeting of the BAR CSC of 3 February 2000 (recital 146 of the contested decision); and fourth, the minutes of a meeting of the ACCS of 17 January 2001 (recital 182 of that decision). The period during which the Commission did not find any contact involving AF therefore began on 4 February 2000 and ended on 17 January 2001. That period does not, therefore, amount to ‘nearly a year and a month and a half’, but at most 11 months and 13 days.
535In the circumstances of this case, such a duration is sufficiently long to make it necessary to ascertain whether AF’s participation in the single and continuous infringement was interrupted between 4 February 2000 and 17 January 2001.
536In that regard it should be borne in mind that the fact that direct evidence of an undertaking’s participation in an infringement during a specified period has not been produced does not preclude that participation from being regarded as established also during that period, provided that that finding is based on objective and consistent indicia (see judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 27 and the case-law cited).
537The fact that, in the case of a complex infringement, the undertaking concerned does not participate in one or more collusive contacts or does not agree with the outcome of one of them does not mean that it has ceased to participate in the infringement in question (judgment of 24 March 2011, Kaimer and Others v Commission, T‑379/06, not published, EU:T:2011:110, paragraph 66).
538On the other hand, public distancing is an important fact that can establish that anticompetitive behaviour has come to an end. Conversely, the absence of public distancing forms a factual situation on which the Commission can rely in order to prove that an undertaking’s anticompetitive conduct has continued. That is, however, only one factor among others to be taken into consideration in order to establish whether an undertaking has actually continued to participate in an infringement or, on the contrary, has ceased to do so. It is not sufficient to establish uninterrupted participation by the undertaking concerned where, over the course of a significant period of time, several collusive contacts have taken place in the absence of its representatives. In such a case, the Commission must also base its findings on other evidence (see, to that effect, judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraphs 23 and 28).
539Such evidence may include the nature of the offence in question (see, to that effect, judgment of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 237), the functioning of the cartel concerned (see, to that effect, judgment of 25 October 2011, Aragonesas Industrias y Energía v Commission, T‑348/08, EU:T:2011:621, paragraphs 243 and 244), the behaviour of the undertaking concerned on the relevant market (see, to that effect, judgments of 5 December 2006, Westfalen Gassen Nederland v Commission, T‑303/02, EU:T:2006:374, paragraph 139 and the case-law cited, and of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 241), the incorporation of the behaviour concerned into a single infringement composed of several other components, or the effects produced by that behaviour (see, to that effect, judgment of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraphs 242 and 245).
540In recital 117 of the contested decision, the Commission stated that ‘at least from late 1999 the introduction of FSC, the application of the FSC mechanisms and the introduction of modifications to them have been the subject of coordination between a number of [incriminated carriers].’ In recitals 133 to 153 of that decision, it described evidence that, between early December 1999 and February or March 2000, several carriers, including AF, had been involved in contacts with a view to introducing the FSC centrally in early 2000 and implementing it locally. That is the context of the contacts referred to in recitals 136, 137, 146 and 152 of that decision, which the Commission used in evidence against AF.
541Nonetheless, in recital 884 of the contested decision, the Commission emphasised that the ‘frequency of the contacts between the carriers varied over time’. It observed that the contacts on the FSC were ‘particularly frequent where the fuel indices approached a level at which an increase or decrease would be triggered but may have been less frequent at other times’.
542However, once the FSC was introduced in early 2000, it was only, as may be seen from recitals 157 to 165 of the contested decision, in the summer of 2000 that fuel prices rose sufficiently to prompt carriers to start discussions – in September and October of that year – concerning an increase of the FSC or the introduction of it by those carriers who had not yet done so. However, the evidence described in those recitals points to only a few contacts, a significant proportion of which were bilateral.
543As may be seen from recitals 166 to 183 of the contested decision, it was only when Lufthansa announced a reduction of the FSC in early 2001 that more frequent and multilateral contacts between the incriminated carriers on the subject of the FSC were initiated. AF was one of those carriers and the applicant does not establish or even allege that AF had in the meantime publicly distanced itself from the single and continuous infringement between 4 February 2000 and 17 January 2001. Nor does it argue that, during that period, AF had resumed fair and independent competitive behaviour on the relevant market, or deny that the effects of coordination in relation to the FSC continued during the period. In those circumstances, it must be concluded that the Commission was entitled, without erring, to hold AF liable for the single and continuous infringement during that period.
544As regards the period after 19 October 2005, it should be noted that the Commission had several pieces of evidence which it could validly raise against AF. As regards the FSC, that concerns the telephone call with Lufthansa at the end of November 2005 (recital 530 of the contested decision), the email to Japan Airlines of 15 November 2005 (recital 554 of the contested decision), the telephone calls with Lufthansa of 21 November 2005 (recital 556 of the contested decision) and emails exchanged between the members of the ACCS between 28 November and 1 December 2005 and 6 and 7 February 2006 (recitals 563 and 574 of that same decision).
545On the other hand, it should be stated, as does the applicant, that none of the evidence in the Commission’s possession concerning the SSC and the refusal to pay commissions is dated later than 19 October 2005 and 14 October 2005 respectively. The last evidence that the Commission raised against AF dates to 14 October 2005 for the refusal to pay commissions (recital 697 of the contested decision). As regards the SSC, the Commission did not identify any concrete contact in which AF was involved in 2005, although it indicated in recital 639 of that decision that Lufthansa’s sales manager for Belgium, France, Luxembourg, the Netherlands and the Swiss Confederation since January 2005 had reported having met with an employee of the applicant regarding the SSC cap.
546It should be observed, however, that the applicant does not draw any particular conclusions therefrom in its submissions. In so far as it maintains that it ceased to participate in the components of the single and continuous infringement relating to the SSC and the refusal to pay commissions after 14 October or 19 October 2005, it must be noted that it is mistaken. Indeed, first, AF continued to participate in the FSC component of the infringement after 19 October 2005 (see paragraphs 544 and 545 above) and it does not claim that it was unaware that the other incriminated carriers continued to coordinate on the SSC and the refusal to pay commissions after that date. Second, the applicant has not provided any evidence at all that AF resumed fair and independent competitive behaviour in the relevant market or that it declared its intention to dissociate itself from the components of the single and continuous infringement relating to the SSC and the refusal to pay commissions after 19 October 2005. Nor does it dispute the fact that the effects of those components continued after that date. Finally, the implementation of the SSC and the refusal to pay commissions required significantly less contact than the implementation of the FSC. Unlike the FSC, the SSC was not based on a changing index that required regular adjustments. That explains why, once it was introduced in late 2001, there were only occasional contacts between carriers concerning its implementation (see recital 579 of the contested decision). As for the refusal to pay commissions, that simply involved a refusal to grant discounts to freight forwarders and therefore did not require such regular adjustments as the FSC. In those circumstances, the Commission was justified in inferring from the evidence before it that AF’s involvement in the components of the infringement relating to the SSC and the refusal to pay commissions did not end in October 2005.…
Operative part
On those grounds,THE GENERAL COURT (Fourth Chamber, Extended Composition)hereby:
1.Dismisses the action;
2.Orders the European Commission to bear one third of its own costs;
3.Orders Air France-KLM to bear its own costs and to pay two thirds of the costs incurred by the Commission.
Delivered in open court in Luxembourg on 30 March 2022.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.