Contents
Judgment of the Court (Fifth Chamber)26 February 2026note(Appeal — Competition — Agreements, decisions and concerted practices — Market for airfreight — Decision of the European Commission finding an infringement of Article 101 TFEU, Article 53 of the Agreement on the European Economic Area and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport — Coordination of elements of the price of air freight services (fuel surcharge, security surcharge and refusal to pay commission on surcharges) — Inbound freight services — Territorial jurisdiction of the Commission — Qualified effects — Single and continuous infringement — Regulation (EC) No 1/2003 — Article 25 — Limitation period for the Commission’s powers to impose penalties — Plea based on the limitation period — Plea involving a matter of public policy)In Case C‑367/22 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 7 June 2022,Air Canada, established in Saint-Laurent (Canada), represented by I.‑Z. Prodromou-Stamoudi, dikigoros, and T. Soames, avocat,the other party to the proceedings being:European Commission, represented by P. Caro de Sousa and A. Dawes, acting as Agents, and by G. Peretz, Barrister-at-Law,THE COURT (Fifth Chamber),composed of I. Jarukaitis (Rapporteur), President of the Fourth Chamber, acting as President of the Fifth Chamber, E. Regan and D. Gratsias, Judges,Advocate General: A. Rantos,Registrar: R. Stefanova-Kamisheva, Administrator,having regard to the written procedure and further to the hearing on 10 April 2024,after hearing the Opinion of the Advocate General at the sitting on 5 September 2024,gives the following
Judgment
1By its appeal, Air Canada seeks to have set aside the judgment of the General Court of the European Union of 30 March 2022, Air Canada v Commission (T‑326/17, ‘the judgment under appeal’, EU:T:2022:177), by which the General Court dismissed in part its action for annulment of Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under 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 (Case AT.39258 – Airfreight) (‘the decision at issue’), in so far as it concerns Air Canada, and annulment or a reduction of the fine imposed on Air Canada by that decision.
Legal context
The EC-Switzerland Air Transport Agreement
2The Agreement between the European Community and the Swiss Confederation on Air Transport, signed in Luxembourg on 21 June 1999 and approved on behalf of the European Community by Decision 2002/309/EC, Euratom of the Council, and of the Commission as regards the Agreement on Scientific and Technological Cooperation, of 4 April 2002 on the conclusion of seven Agreements with the Swiss Confederation (OJ 2002 L 114, p. 1) (‘the EC-Switzerland Air Transport Agreement’), entered into force on 1 June 2002. Articles 8 and 9 of that agreement correspond, mutatis mutandis, to Articles 101 and 102 TFEU, respectively.
3Under Article 11 of that agreement:1. The provisions of Articles 8 and 9 shall be applied … by the Community institutions in accordance with Community legislation as set out in the Annex to this Agreement, taking into account the need for close cooperation between the Community institutions and the Swiss authorities.2. The Swiss authorities shall rule, in accordance with the provisions of Articles 8 and 9, on the admissibility of all agreements, decisions and concerted practices … concerning routes between Switzerland and third countries.’
4Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1) was made applicable under that agreement, with effect from 5 December 2007, by Decision No 1/2007 of the joint Community/Switzerland Air Transport Committee set up under the Agreement between the European Community and the Swiss Confederation on Air Transport of 5 December 2007 replacing the Annex to the Agreement between the European Community and the Swiss Confederation on Air Transport (OJ 2008 L 34, p. 19). On that date, it replaced Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ 1987 L 374, p. 1), which had been contained in the annex to the EC-Switzerland Air Transport Agreement since it entered into force.
The FEU Treaty
5Article 101(1) TFEU provides:‘The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:(a) directly or indirectly fix purchase or selling prices or any other trading conditions;(b) limit or control production, markets, technical development, or investment;(c) share markets or sources of supply;…’
The EEA Agreement
6Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3; ‘the EEA Agreement’) corresponds, mutatis mutandis, to Article 101 TFEU.
7Regulation No 1/2003, as amended by Council Regulation (EC) No 411/2004 of 26 February 2004 (OJ 2004 L 68, p. 1), was incorporated into the EEA Agreement by, on the one hand, Decision of the EEA Joint Committee No 130/2004 of 24 September 2004 amending Annex XIV (Competition), Protocol 21 (On the implementation of the competition rules applicable to undertakings) and Protocol 23 (Concerning the cooperation between surveillance authorities) to the EEA Agreement (OJ 2005 L 64, p. 57), which entered into force on 19 May 2005, and, on the other hand, Decision of the EEA Joint Committee No 40/2005 of 11 March 2005 amending Annex XIII (Transport) and Protocol 21 (on the implementation of competition rules applicable to undertakings) to the EEA Agreement (OJ 2005 L 198, p. 38), which entered into force on the same day.
Regulation No 1/2003
8Article 7(1) of Regulation No 1/2003 provides:‘Where the [European] Commission, acting on a complaint or on its own initiative, finds that there is an infringement of Article [101 TFEU] or of Article [102 TFEU], it may by decision require the undertakings and associations of undertakings concerned to bring such infringement to an end. For this purpose, it may impose on them any behavioural or structural remedies which are proportionate to the infringement committed and necessary to bring the infringement effectively to an end. Structural remedies can only be imposed either where there is no equally effective behavioural remedy or where any equally effective behavioural remedy would be more burdensome for the undertaking concerned than the structural remedy. If the Commission has a legitimate interest in doing so, it may also find that an infringement has been committed in the past.’
9Article 23 of that regulation, entitled ‘Fines’, states, in paragraphs 2 and 3 thereof:2.The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:(a) they infringe Article [101] or Article [102 TFEU]; ……For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year.…3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’
10Under Article 25 of that regulation:1.The powers conferred on the Commission by Articles 23 and 24 shall be subject to the following limitation periods:(a) three years in the case of infringements of provisions concerning requests for information or the conduct of inspections;(b) five years in the case of all other infringements.2. Time shall begin to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time shall begin to run on the day on which the infringement ceases.3.Any action taken by the Commission or by the competition authority of a Member State for the purpose of the investigation or proceedings in respect of an infringement shall interrupt the limitation period for the imposition of fines or periodic penalty payments. The limitation period shall be interrupted with effect from the date on which the action is notified to at least one undertaking or association of undertakings which has participated in the infringement. Actions which interrupt the running of the period shall include in particular the following:(a) written requests for information by the Commission or by the competition authority of a Member State;(b) written authorisations to conduct inspections issued to its officials by the Commission or by the competition authority of a Member State;(c) the initiation of proceedings by the Commission or by the competition authority of a Member State;(d) notification of the statement of objections of the Commission or of the competition authority of a Member State.4. The interruption of the limitation period shall apply for all the undertakings or associations of undertakings which have participated in the infringement.5. Each interruption shall start time running afresh. However, the limitation period shall expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the Commission having imposed a fine or a periodic penalty payment. That period shall be extended by the time during which limitation is suspended pursuant to paragraph 6.6. The limitation period for the imposition of fines or periodic penalty payments shall be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice.’
11Article 32(c) of that regulation provided that the latter ‘[did not] apply to air transport between Community airports and third countries’.
12That provision was deleted, with effect from 1 May 2004, by Article 3 of Regulation No 411/2004.
Background to the dispute and the decision at issue
13The background to the dispute and the decision at issue, as set out in paragraphs 1 to 60 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.
14Air Canada is an air transport company active in the market for airfreight services.
15In the freight sector, airlines provide for the carriage of cargo by air (‘the carriers’). As a general rule, carriers supply freight services to freight forwarders, who arrange the transport of that cargo on behalf of shippers. In return, those freight forwarders pay those carriers a price consisting, on the one hand, of rates calculated on a per kilogram basis and, on the other hand, of various surcharges.
The administrative procedure
16On 7 December 2005, the European Commission received an application for immunity, under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3), lodged by Deutsche Lufthansa AG and two of its subsidiaries, Lufthansa Cargo AG and Swiss International Air Lines AG. The application alleged that anticompetitive contacts were being maintained between a number of carriers with regard to elements of the price of services provided in the market for airfreight, namely the introduction of ‘fuel’ and ‘security’ surcharges and the refusal on the part of those carriers to pay the freight forwarders a commission on the surcharges (‘the refusal to pay commission’).
17On 14 and 15 February 2006, the Commission carried out unannounced inspections at the premises of a number of carriers.
18Following those inspections, a number of carriers, including Air Canada, submitted an application for immunity under the notice on immunity from fines and reduction of fines in cartel cases, referred to in paragraph 16 of the present judgment.
19On 19 December 2007, the Commission addressed a statement of objections to 27 carriers, including Air Canada, all of which subsequently submitted written observations. An oral hearing was held from 30 June to 4 July 2008.
The initial decision
20On 9 November 2010, the Commission adopted Decision C(2010) 7694 final relating to a proceeding under 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 (Case COMP/39258 – Airfreight) (‘the initial decision’). That decision was addressed to 21 carriers, which included Air Canada, in respect of which no infringement was found, however, with regard to air transport between airports within the European Union and air transport on routes between airports within the European Union and Swiss airports (‘EU-Switzerland routes’).
21The decision stated, in its grounds, that the incriminated carriers had coordinated their behaviour as regards the pricing of freight services, by reaching an agreement on the fuel surcharge, the security surcharge and the refusal to pay commission, and had, in doing so, participated in a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement, covering the territory of the European Economic Area (EEA) and Switzerland.
The judgments of 16 December 2015
22By judgment of 16 December 2015, Air Canada v Commission (T‑9/11, EU:T:2015:994), the General Court annulled the initial decision in so far as it concerned Air Canada. By 12 other judgments of the same day, the General Court also annulled that decision, in whole or in part, in so far as it concerned 12 other carriers or groups of carriers.
23The General Court found that that decision was vitiated by a defective statement of reasons.
The decision at issue
24On 20 May 2016, the Commission sent a letter to the carriers referred to in the initial decision and which had brought an action against the latter before the General Court to inform them of its intention again to adopt a decision in which it would find that they had participated in a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement on all of the routes referred to in that initial decision. Those carriers were given a period of one month in which to submit their observations. All availed themselves of that opportunity.
25On 17 March 2017, the Commission adopted the decision at issue, which was addressed to 19 carriers, including Air Canada.
26That decision states that the incriminated carriers coordinated their behaviour as regards the pricing of freight services worldwide, by reaching an agreement on the fuel surcharge, the security surcharge and the refusal to pay commission (‘the cartel at issue’), and had, in doing so, participated in a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement.
27In Section 4 of that decision, headed ‘Description of the events’, the Commission stated, inter alia, that the investigations had uncovered a worldwide cartel based on a network of bilateral and multilateral contacts over a long period of time among competitors regarding the conduct which they had decided on, intended to adopt, or contemplated adopting with regard to various elements of the charges for freight services referred to in the preceding paragraph. It stated that the common objective of that network of contacts was to coordinate competitors’ pricing behaviour or to reduce uncertainty with regard to their pricing policies. It then described the contacts concerning the fuel surcharge, the security surcharge and the refusal to pay commission, respectively, and assessed the factual evidence concerning (i) the cartel at issue as a whole and (ii) each of the addressees of that decision.
28In Section 5 of the decision at issue, headed ‘The application of the relevant competition rules’, the Commission applied Article 101 TFEU to the facts of the case, while stating that the references to that article were also to be read as references to Article 53 of the EEA Agreement and to Article 8 of the EC-Switzerland Air Transport Agreement, since those provisions apply mutatis mutandis, unless otherwise provided.
29In that connection, as regards its jurisdiction, the Commission examined the limits of its territorial and temporal jurisdiction to find and penalise an infringement of the competition rules in the case at hand.
30First, in recitals 822 to 832 of the decision at issue, which make up Subsection 5.2 of that decision, headed ‘Jurisdiction of the Commission’, the Commission observed, in essence, that it would not apply, first of all, Article 101 TFEU to agreements and practices prior to 1 May 2004 concerning routes between airports within the European Union and airports outside the EEA (‘EU-third country routes’); next, Article 53 of the EEA Agreement to agreements and practices prior to 19 May 2005 concerning EU-third country routes and routes between airports in countries that are Contracting Parties of the EEA Agreement but are not EU Member States and airports in third countries (‘non-EU EEA-third country routes’); and, last, Article 8 of the EC-Switzerland Air Transport Agreement to agreements and practices prior to 1 June 2002 concerning EU-Switzerland routes. It stated, in recital 832 of that decision, that the latter decision did ‘not purport to find an infringement of Article 8 of the [EC-Switzerland Air Transport Agreement] concerning freight services on routes between Switzerland and third countries’.
31Second, in recitals 1036 to 1046 of the decision at issue, which make up Subsection 5.3.8 of that decision under the heading ‘The applicability of Article 101 of the TFEU and Article 53 of the EEA Agreement to inbound routes’, the Commission set out the grounds on which it rejected the arguments, put forward by various incriminated carriers, that it had exceeded the limits of its territorial jurisdiction under the rules of public international law by finding and penalising an infringement of those two provisions on routes from third countries to the EEA (‘inbound routes’ and, as regards freight services offered on those routes, ‘inbound freight services’).
32In particular, in recital 1045 of the decision at issue, the Commission stated that anticompetitive practices with regard to inbound freight services were ‘liable to have immediate, substantial and foreseeable effects within the EU [and the] EEA, as the increased costs of air transport to the EEA, and consequently higher prices of imported goods, are by their very nature liable to have effects on consumers in the EEA’. It added that, in the case at hand, those practices were liable to have such effects on the provision of airfreight services by other carriers within the EEA, between the different hubs in the EEA used by carriers from third countries and the airports of destination of those shipments in the EEA, to which the third-country carrier did not fly.
33Furthermore, in recital 1046 of that decision, the Commission noted that the cartel at issue was ‘implemented globally’, that the cartel arrangements concerning inbound routes formed an integral part of the single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement, and that the uniform application of the surcharges on a worldwide scale was a key element of that cartel.
34Subsection 5.3 of the decision at issue, relating to the application in the case at hand of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Freight Agreement, comprises recitals 833 to 1052 of that decision. First, in recital 846 of that decision, the Commission found that the incriminated carriers had coordinated their conduct or influenced price setting, ‘ultimately amounting to price fixing with regard to’ the fuel surcharge, the security surcharge and the payment of commission on surcharges to freight forwarders. In recital 861 of that decision, the Commission found that the ‘overall scheme to coordinate the pricing behaviour for [freight] services’ revealed by its investigation demonstrated the existence of a ‘complex infringement consisting of various actions which [could] be either classified as an agreement or concerted practice, within which the competitors knowingly substituted practical cooperation between them for the risks of competition’.
35Second, in recital 869 of the decision at issue, the Commission considered that ‘the conduct in question constitute[d] a single and continuous infringement of Article 101 [TFEU]’, stating, in recitals 870 to 902 of the decision, that the arrangements in question pursued a single anticompetitive aim of distorting competition in the freight sector within the EEA, concerned the provision of freight services and the pricing thereof, concerned the same undertakings, were of a single and continuous nature, and related to three elements, namely the fuel surcharge, the security surcharge and the refusal to pay commission.
36In that context, the Commission stated, in recital 882 of that decision, that Air Canada was involved in two of the three elements of the infringement, namely the fuel surcharge and the security surcharge. In that recital, the Commission added that, given its involvement, Air Canada nevertheless ‘could have reasonably foreseen exchanges’ between the parties on commissioning on surcharges and was prepared to take the risk, and that there was also evidence that Air Canada had been aware of the discussions on commissioning on surcharges.
37Third, in recital 903 of the decision at issue, the Commission found that the anticompetitive conduct in question had the object of restricting competition at least in the European Union, the EEA and Switzerland. In recital 917 of that decision, the Commission added, in essence, that there was, therefore, no need to take into account the actual effects of that conduct.
38Fourth, in recitals 972 to 1021 of the decision at issue, the Commission examined the regulatory systems in place in seven third countries, which several of the incriminated carriers maintained had required them to collude on surcharges, thereby impeding the application of the relevant competition rules. The Commission considered that those carriers had failed to prove that they had acted under duress from those third countries.
39Fifth, in recitals 1024 to 1035 of the decision at issue, the Commission found that the single and continuous infringement was likely to have an appreciable effect on trade between Member States, between Contracting Parties of the EEA Agreement and between contracting parties to the EC-Switzerland Air Transport Agreement.
40Section 7 of the decision at issue, headed ‘Duration of the infringement’, contains recitals 1146 to 1169 of that decision. As is apparent from recital 1146 of that decision, the Commission found that the cartel at issue had started on 7 December 1999 and lasted until 14 February 2006. In recital 1146, it stated that that cartel had infringed:– Article 101 TFEU, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the European Union;– Article 101 TFEU, from 1 May 2004 to 14 February 2006, as regards air transport on EU-third country routes;– Article 53 of the EEA Agreement, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the EEA (‘intra-EEA routes’);– Article 53 of the EEA Agreement, from 19 May 2005 to 14 February 2006, as regards air transport on non-EU EEA-third country routes;– Article 8 of the EC-Switzerland Air Transport Agreement, from 1 June 2002 to 14 February 2006, as regards air transport on EU-Switzerland routes.
41In recital 1169 of that decision, the Commission found that the duration of the infringement to be taken into account in so far as concerned Air Canada ran from 21 September 2000 until 14 February 2006.
42In Section 8 of the decision at issue, the Commission examined the remedies to be taken and the fines to be imposed, by reference to the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).
43Articles 1, 3 and 4 of the operative part of the decision at issue are worded as follows:‘Article 1By coordinating their pricing behaviour in the provision of airfreight services on a global basis with respect to the fuel surcharge, the security surcharge and the payment of commission payable on surcharges, the following undertakings have committed the following single and continuous infringement of Article 101 [TFEU], Article 53 of [the EEA Agreement] and Article 8 of [the EC-Switzerland Air Transport Agreement] as regards the following routes and for the following periods.(1) The following undertakings have infringed Article 101 [TFEU] and Article 53 of [the] EEA Agreement as regards [intra-EEA routes], for the following periods:(a) Air Canada from 21 September 2000 until 14 February 2006;…(2) The following undertakings infringed Article 101 [TFEU] as regards [EU-third country routes], for the following periods:(a) Air Canada from 1 May 2004 until 14 February 2006;…(3) The following undertakings infringed Article 53 of the EEA Agreement as regards [non-EU EEA-third country routes], for the following periods:(a) Air Canada from 19 May 2005 until 14 February 2006;…(4) The following undertakings infringed Article 8 of the [EC-Switzerland Air Transport Agreement] as regards [EU-Switzerland routes], for the following periods:(a) Air Canada from 1 June 2002 until 14 February 2006;…Article 3For the single and continuous infringement referred to in Article 1 …, the following fines are imposed:(a) Air Canada: EUR 21037500;…Article 4The undertakings listed in Article 1 shall immediately bring to an end the single and continuous infringement referred to in that Article in so far as they have not already done so.They shall also refrain from repeating any act or conduct having the same or similar object or effect.’
The procedure before the General Court and the judgment under appeal
44By application lodged at the Registry of the General Court on 29 May 2017, Air Canada brought an action for annulment of the decision at issue in so far as it concerns Air Canada and, in the alternative, for annulment or a reduction of the fine imposed.
45In support of that action, Air Canada relied on five pleas for annulment.
46Among those pleas, the third alleged manifest errors of assessment and errors of law in imputing to Air Canada liability for the single and continuous infringement in so far as it concerns intra-EEA routes and EU-Switzerland routes. The fourth plea related to a lack of jurisdiction on the part of the Commission to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes as well as on EU-third country routes before 1 May 2004 and on non-EU EEA-third country routes before 19 May 2005.
47By the judgment under appeal, the General Court, having upheld the second part of the fifth plea, alleging that the Commission failed to prove, by credible evidence, the facts alleged against the appellant, annulled Article 1(1)(a), (2)(a), (3)(a) and (4)(a) of the decision at issue in so far as it found that Air Canada participated in the element of the single and continuous infringement relating to the refusal to pay commission, and set the amount of the fine imposed on Air Canada in Article 3(a) of that decision at EUR 17952000. Last, it dismissed the action as to the remainder.
Forms of order sought by the parties to the appeal
48By its appeal, Air Canada claims that the Court should:– set aside the judgment under appeal;– annul the decision at issue or, in the alternative, annul either Article 1(1)(a), Article 1(2)(a), Article 1(3)(a) or Article 1(4)(a) thereof, or annul those provisions taken together;– annul Article 3 of that decision or, in the alternative, substantially reduce the amount of the fine;– in the alternative, refer the case back to the General Court; and– order the Commission to pay the costs incurred by the appellant before the Court of Justice and the remaining two thirds of the costs incurred by the appellant before the General Court.
49The Commission contends that the Court should dismiss the appeal and order Air Canada to pay the costs.
The appeal
50In support of its appeal, Air Canada relies on three grounds of appeal. The first ground of appeal alleges errors of law in the assessment of the Commission’s jurisdiction to find and penalise an infringement on inbound routes. The second ground of appeal alleges, in essence, an error of law in the assessment of Air Canada’s liability as regards the infringement committed on intra-EEA routes and EU-Switzerland routes. The third ground of appeal alleges that the General Court failed to raise, of its own motion, the plea based on the limitation period with regard to Air Canada’s conduct on those routes.
51It is appropriate to begin by examining the first ground of appeal, then the third and, last, the second.
The first ground of appeal, concerning the Commission’s jurisdiction with regard to inbound routes
52The first ground of appeal consists of two parts, the second of which is subdivided into seven complaints. The first part of that ground of appeal and the first complaint in the second part of it allege that the General Court erred in using solely the test based on the qualified effects of anticompetitive practices in the European Union (‘the qualified effects test’) to determine the Commission’s jurisdiction. The second to fifth complaints in the second part allege that the General Court made errors of law in determining the conditions for applying that test. The sixth and seventh complaints in that second part relate to the use of the concept of a ‘single and continuous infringement’.
The first part and the first complaint in the second part, alleging that the General Court erred in using solely the qualified effects test to determine the Commission’s jurisdiction
–Arguments of the parties
53By the first part of the first ground of appeal, Air Canada submits that the General Court erred in law by refusing to examine the application of the test based on the place in which anticompetitive practices are implemented (‘the implementation test’) to inbound freight services, by holding that ‘the qualified effects test [was] enshrined in the wording of Article 101 TFEU’ and by finding that Article 101(1) TFEU could be applied to conduct involving price coordination outside the European Union based on the qualified effects test alone, without it being necessary to assess whether such conduct had the object or effect of restricting or distorting competition in the internal market.
54According to Air Canada, the qualified effects test, which is a matter of public international law, cannot be a substitute for an assessment of anticompetitive effects ‘within the internal market’, which is required in the light of the wording of Article 101(1) TFEU. That test is a further requirement that only becomes relevant under public international law should the requirements of Article 101(1) TFEU be shown to be satisfied.
55By the first complaint in the second part of the first ground of appeal, which concerns paragraphs 225 to 279 of the judgment under appeal, Air Canada submits that the General Court misapplied the case-law relating to the assessment of anticompetitive effects stemming from an infringement by object.
56First, Air Canada claims that the General Court erred in law in finding that the qualified effects test does not require, in the case of an infringement by object, actual anticompetitive effects to be demonstrated and, accordingly, in exempting the Commission from the obligation to undertake any assessment of the anticompetitive effects of the conduct at issue in the light of the anticompetitive object thereof.
57Second, Air Canada submits that the General Court erred in law in finding that conduct undertaken and implemented outside the EEA relating to services sold outside the EEA was sufficiently harmful to competition within the internal market to be considered a restriction of competition by object, without carrying out an appropriate assessment of all the relevant circumstances, including the impact of that conduct on competition within the EEA. According to Air Canada, it follows from the case-law of the Court of Justice that a prohibition on exports to the European Union from a third country does not constitute a restriction of competition by object, whereas the same prohibition on exports between Member States does.
58The Commission disputes those arguments.
–Findings of the Court
59In the first place, in order to respond to the line of argument by which Air Canada submits that the General Court erred in law by refusing to examine the implementation test, it must be recalled that, in paragraph 46 of its judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), the Court of Justice, hearing a ground of appeal by which the General Court was criticised for holding that the Commission’s jurisdiction under public international law to find and penalise conduct adopted outside the European Union could be established on the basis of either the implementation test or the qualified effects test, held that the qualified effects test may, on its own, serve as the basis for the Commission’s jurisdiction.
60The Court of Justice reached that conclusion after recalling, in paragraphs 42 and 45 of that judgment, first, that the EU competition rules set out in Articles 101 and 102 TFEU are intended to prevent collective or unilateral conduct of undertakings limiting competition within the internal market and, second, that the implementation test and the qualified effects test pursue the same objective, namely preventing conduct which, while not adopted within the European Union, has anticompetitive effects liable to have an impact on the EU market.
61It follows that the implementation test and the qualified effects test are alternative tests and that just one of those tests is, in itself, sufficient to justify the Commission’s jurisdiction under public international law with regard to conduct adopted outside the European Union. Since the General Court held, in paragraph 291 of the judgment under appeal, that the Commission was entitled to find that the qualified effects test was satisfied, Air Canada’s argument that the General Court erred in law by refusing to examine the implementation test must be rejected as unfounded.
62In the second place, it is necessary to examine Air Canada’s argument that the General Court erred in law by exempting the Commission from the obligation to assess the effects of the conduct at issue in the light of the anticompetitive object thereof.
63In the present case, it should be noted that the General Court stated, in paragraph 232 of the judgment under appeal, that where conduct has been found by the Commission, as in the present case, to reveal a degree of harmfulness to competition in the internal market or within the EEA such that it could be classified as a restriction of competition ‘by object’ within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement, the application of the qualified effects test cannot require the demonstration of the actual effects which classification of conduct as a restriction of competition ‘by effect’ within the meaning of those provisions presupposes.
64Similarly, it stated, in paragraph 236 of that judgment, that interpreting the qualified effects test as requiring proof of the actual effects of the conduct at issue even where there is a restriction of competition ‘by object’, would amount to making the Commission’s jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement subject to a condition which has no basis in the wording of those provisions.
65The General Court inferred, in paragraph 237 of that judgment, that Air Canada could neither (i) validly claim that the Commission erred in finding that the qualified effects test was satisfied, even though it stated, in recitals 917, 1190 and 1277 of the decision at issue, that it was not required to make an assessment of the anticompetitive effects of the conduct at issue in the light of the anticompetitive object thereof, nor (ii) deduce from those recitals that the Commission did not carry out any analysis of the effects produced by that conduct in the internal market or within the EEA for the purposes of applying that test.
66However, as the grounds set out in the second place in paragraph 237 already state, it cannot be inferred from those paragraphs disputed by Air Canada that, in order to establish that the qualified effects test was satisfied in the present case, the General Court considered that it was sufficient that the cartel at issue could be classified as a restriction of competition by object.
67It is in fact clear from an overall reading of paragraphs 228 to 244 of the judgment under appeal that, in the disputed paragraphs, the General Court merely concerned itself with rejecting the line of argument, summarised in paragraph 216 of that judgment, which Air Canada had submitted. Thus, in those paragraphs, the General Court set out the reasons why Air Canada was wrong to maintain that the statement made by the Commission, in the grounds of the decision at issue relating, in respect of recital 917 thereof, to the classification of the restriction of competition at issue and, in respect of recitals 1190 and 1277 thereof, to the calculation of the fine, that it was not necessary to demonstrate actual anticompetitive effects given that the anticompetitive object of the conduct complained of had been established, meant that the Commission had, on account of that anticompetitive object, failed to assess whether that conduct had produced the qualified effects required to establish the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services.
68On the one hand, by essentially replying that the qualified effects test, which serves as the basis of the Commission’s extraterritorial jurisdiction, is separate from the question whether the cartel at issue can be classified as a restriction of competition, within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement, the General Court did not err in law. As the Advocate General also observes in point 42 of his Opinion, the qualified effects test, which can serve as the basis under public international law for the extraterritorial application, by the Commission, of EU and EEA competition rules, is not the same as the substantive test relating to the restriction of competition, by object or by effect, within the internal market of the European Union or the EEA, to which the Commission’s jurisdiction to find and penalise, under EU law, an infringement of those competition rules is subject.
69On the other hand, the General Court’s analysis seeking to determine whether the Commission had correctly considered that the qualified effects test had been satisfied in the case at hand is set out in paragraphs 245 to 279 of the judgment under appeal concerning the coordination in relation to inbound freight services taken in isolation, and in paragraphs 280 to 291 of that judgment concerning the single and continuous infringement taken as a whole.
70In those circumstances, Air Canada misreads the judgment under appeal when it submits that the General Court considered that it was possible, for the purpose of establishing, on the basis of the qualified effects test, the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to conduct adopted outside the territory of the EEA, to dispense with demonstrating such effects where that conduct may be characterised as a restriction of competition by object. The line of argument set out in paragraph 56 of the present judgment must, accordingly, be rejected as unfounded.
71In the third place, the line of argument that the General Court substituted the qualified effects test under public international law for the substantive test of the restriction of competition, by object or by effect, within the internal market of the European Union or the EEA is also based on a misreading of the judgment under appeal.
72It is unequivocally clear from the General Court’s assessment referred to in paragraph 68 of the present judgment that it, first, found that the Commission’s jurisdiction under public international law was established on the basis of the qualified effects test and, second, noted that there was a restriction of competition ‘by object’ justifying the Commission’s jurisdiction to find and penalise, under EU law, an infringement of the competition rules. Therefore, contrary to what Air Canada maintains, the General Court did not in any way hold that demonstrating that there were qualified effects exempted the Commission from proving that the condition laid down in Article 101(1) TFEU, relating to the existence of a restriction of competition by object or by effect, was satisfied.
73In the fourth place, in so far as Air Canada submits that the General Court erred in law in finding that the conduct at issue was sufficiently harmful to competition in the internal market to be regarded as a restriction of competition by object, it is sufficient to recall that, in accordance with settled case-law, the jurisdiction of the Court of Justice when examining an appeal is confined to a review of the findings of law made in relation to the pleas and arguments debated before the General Court. A party cannot therefore put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court, since that would amount to allowing that party to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is confined to a review of the findings of law made in relation to the pleas and arguments debated before the General Court (judgments of 14 October 2010, Deutsche Telekom v Commission, C‑280/08 P, EU:C:2010:603, paragraph 34, and of 2 February 2023, Spain and Others v Commission, C‑649/20 P, C‑658/20 P and C‑662/20 P, EU:C:2023:60, paragraph 29 and the case-law cited).
74In the present case, Air Canada did not put forward any plea or argument before the General Court which sought to challenge the classification as a restriction by object used by the Commission in the decision at issue. Accordingly, Air Canada’s complaint challenging the classification of the conduct at issue as a ‘restriction of competition by object’ must be rejected as inadmissible.
75In the light of the foregoing considerations, the first part and the first complaint in the second part must be rejected as in part inadmissible and in part unfounded.
The second to fifth complaints in the second part, alleging that the General Court made errors of law in determining the conditions for applying the qualified effects test
–Arguments of the parties
76By the second complaint in the second part, Air Canada submits that the General Court erred in law in finding that the Commission had proved to the requisite legal standard that the conditions for applying the qualified effects test were met, whereas the Commission dedicated only one recital of the decision at issue to that matter, namely recital 1045 thereof, and did not in fact carry out any analysis of the foreseeable, immediate and substantial effects within the internal market. Air Canada adds that, to reach that finding, the General Court was, moreover, forced to rely on other recitals of the decision at issue, which it arbitrarily selected, even though the effects identified by the Commission were merely hypothetical, speculative or otherwise unsubstantiated.
77By the third complaint in this part, Air Canada submits that the General Court reversed the burden of proving qualified effects, which is borne by the Commission, by incorrectly relying on an unsubstantiated presumption of immediate, substantial, direct and foreseeable effects.
78In particular, Air Canada criticises the General Court, first, for stating, in paragraph 237 of the judgment under appeal, that it was for Air Canada to prove that the Commission had not carried out any analysis of the anticompetitive effects of the conduct at issue, second, for finding, in paragraph 255 of that judgment, that it ‘[did] not put forward any evidence demonstrating that the circumstances of the present case were not conducive to passing on the additional costs resulting from the single and continuous infringement on inbound routes to shippers downstream’ and, third, for noting, in paragraph 277 of that judgment, that it ‘[had] not established, or even alleged, that the foreseeable passing on of the additional costs to shippers located in the EEA [was] wrongful or extraneous to the normal functioning of the market’.
79By the fourth complaint in this part, Air Canada claims that the General Court substituted its own grounds for those of the Commission by dedicating 55 paragraphs of the judgment under appeal to assessing the legality of recital 1045 of the decision at issue, which is the only recital of that decision which analyses the qualified effects test.
80By the fifth complaint in this part, Air Canada claims that the General Court erred in law and infringed its rights of defence by assessing the legality of the decision at issue on the basis of a series of arguments, an interpretation and an analysis that were set out for the first time in the action for annulment brought against that decision. Air Canada submits that the reasoning and interpretation given by the General Court did not appear in that decision and that, consequently, it was never put in a position during the administrative procedure to make its views known.
81The Commission contends that those complaints should be rejected.
–Findings of the Court
82In the first place, it must be stated that the second and fourth complaints in the second part, by which Air Canada claims that the General Court erred in law in finding that the Commission had proved that the conditions for applying the qualified effects test were satisfied, whereas only recital 1045 of the decision at issue is dedicated to that matter, and, accordingly, that, in the judgment under appeal, the General Court substituted its own analysis of the qualified effects for the analysis made by the Commission, are indissociably linked. They should therefore be considered together.
83It is, admittedly, clear from the case-law that the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings under Articles 101 and 102 TFEU, which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the applicant at first instance and taking into account all the elements submitted by the latter. However, in the context of that review, the Courts of the European Union may in no circumstances substitute their own reasoning for that of the author of the contested act (judgment of 4 July 2024, Westfälische Drahtindustrie and Pampus Industriebeteiligungen v Commission, C‑70/23 P, EU:C:2024:580, paragraph 38 and the case-law cited).
84The General Court therefore cannot fill, by means of its own reasoning, a gap in the reasoning in the act challenged before it in such a way that its examination does not relate to any assessment carried out in that act (judgment of 18 July 2013, UEFA v Commission, C‑201/11 P, EU:C:2013:519, paragraph 65 and the case-law cited).
85However, where the General Court merely responds to the line of argument raised before it and explains the reasoning of that act, it cannot be considered that the General Court is substituting its own reasoning for that of the author of that act (see, to that effect, judgments of 12 June 2014, Deltafina v Commission, C‑578/11 P, EU:C:2014:1742, paragraph 56, and of 23 November 2023, Ryanair v Commission, C‑209/21 P, EU:C:2023:905, paragraph 49).
86In the present case, it is apparent from the General Court’s findings in paragraphs 45 and 222 of the judgment under appeal that the first ground on which the Commission relied in recital 1045 of the decision at issue, in order to find that the qualified effects test was satisfied in the present case, relates to the ‘increased costs of air transport to the EEA, and consequently [to the] higher prices of imported goods, [which were] by their very nature liable to have effects on consumers in the EEA’, a ground to which the General Court referred as ‘the effect at issue’ (‘the effect on the prices of imported goods’), and which Air Canada argued was not amongst the effects produced by the conduct in question which the Commission was entitled to take into account for the purpose of applying the qualified effects test.
87As regards the factors referred to in the judgment under appeal in order to establish the relevance of the effects of the coordination in relation to inbound freight services, it is apparent from paragraph 241 of that judgment that the General Court relied on recitals 14, 17 and 70 of the decision at issue and on the parties’ replies to the measures of organisation of procedure that it had taken in order, inter alia, to clarify the role of freight forwarders with regard to inbound freight services.
88In addition, in paragraphs 248 to 251, 254 and 257 of the judgment under appeal, the General Court referred to recitals 14, 17, 70, 846, 874, 879, 899, 909, 1031, 1199 and 1208 of the decision at issue, in which the Commission described the nature of the conduct at issue, which it classified as horizontal price-fixing relating to the fuel surcharge, the security surcharge and the refusal to pay commission.
89It was therefore on the basis of an overall reading of the recitals of the decision at issue dedicated to the nature of the conduct at issue, to the characteristics of the provision and pricing of airfreight services, to the role of freight forwarders and to the impact of an increase in surcharges on the cost of freight services and, subsequently, on the cost of imported goods, that the General Court held, in paragraph 292 of the judgment under appeal, that the Commission had established to the requisite standard that it was foreseeable that the conduct at issue would produce a substantial and immediate effect in the EEA.
90First, in so far as Air Canada claims that, in the decision at issue, the Commission did not establish that the conduct at issue was capable of producing foreseeable, immediate and substantial effects in the internal market and relied on a mere hypothesis of effects ‘liable’ to be produced, it should be noted that that line of argument is directed not against the judgment under appeal, but rather the decision at issue, and that it must, therefore, be rejected as inadmissible (see, by analogy, judgment of 29 June 2023, TUIfly v Commission, C‑763/21 P, EU:C:2023:528, paragraph 53 and the case-law cited).
91Furthermore, in so far as Air Canada submits that the General Court selected from the decision at issue various sparse recitals that it grouped together in order to present them as part of a logical line of reasoning, which it had artificially reconstructed, it must be noted that the General Court cannot be criticised for reading that decision as a whole and for relying on the recitals which it considered relevant in order to assess the merits of the Commission’s conclusion, referred to in paragraph 89 of the present judgment. In any event, Air Canada does not claim that the General Court’s reading of that decision distorted it.
92In those circumstances, the argument by which Air Canada claims that the General Court erred in law by failing to take account of the fact that the decision at issue does not contain any analysis of the qualified effects and is based solely on speculative and hypothetical effects must be rejected as in part inadmissible and in part unfounded.
93Second, as is clear from paragraphs 222 and 238 of the judgment under appeal, the first sentence of recital 1045 of the decision at issue contained, albeit succinctly, the factors that enabled the General Court to ascertain whether the Commission had established its extraterritorial jurisdiction in the light of the qualified effects test. It is those factors which, read in conjunction with the other recitals of that decision, referred to in paragraphs 241, 248 to 251, 254, 257, 265 to 267, 270 and 271 of the judgment under appeal, enabled the General Court to ascertain that the Commission had indeed established the existence of those effects.
94It is also apparent from paragraphs 228 to 279 of the judgment under appeal that, in those paragraphs, the General Court merely responded to the arguments submitted to it by Air Canada and explained the statement of reasons for the decision at issue, in particular by drawing certain conclusions from the factors contained in that decision.
95Accordingly, in the light of the case-law referred to in paragraph 83 of the present judgment, the alleged substitution of grounds in respect of those paragraphs 228 to 279 has not been established.
96In the second place, as regards Air Canada’s argument relating to a reversal of the burden of proof, it is settled case-law that it is for the Commission to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement of competition law. By contrast, it is for the undertaking raising a defence against the finding of such an infringement to prove that that defence must be upheld. However, even though, according to those principles, the burden of proof is borne either by the Commission or by the undertaking concerned, the factual evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the rules on the burden of proof have been met (see, to that effect, judgment of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraph 120 and the case-law cited).
97That case-law, which is based on the general rules on the taking of evidence, can be transposed to the situation in which the Commission must assert its territorial jurisdiction over conduct originating outside the territory of the European Union or of the EEA.
98As Air Canada maintains, it is therefore for the Commission to establish that the qualified effects test is satisfied and, accordingly, to demonstrate that the practices concerned have foreseeable, immediate and substantial effects in the European Union or, as in the present case, in the EEA. The General Court did not, however, disregard that rule regarding the burden of proof.
99First, as regards Air Canada’s criticism of paragraph 237 of the judgment under appeal, it should be noted that, in that paragraph, the General Court merely rejected the line of argument that it had to be inferred from the fact that the Commission did not assess the anticompetitive effects of the cartel at issue on account of its anticompetitive object that the Commission had refrained from analysing the effects of that cartel for the purpose of applying the qualified effects test.
100Second, it must be stated that the General Court did not reverse the burden of proof in paragraph 255 of the judgment under appeal. After assessing, in paragraphs 253, 254 and 256 to 261 of that judgment, whether the Commission had established the foreseeability of the effect on the prices of imported goods to the requisite standard, the General Court answered that question in the affirmative, stating, in paragraph 258 of that judgment, that the increase in the price of imported goods was a foreseeable effect for the carriers. Similarly, it is apparent from paragraphs 273 to 278 of the judgment under appeal that, after examining the influence exerted by the intervention of freight forwarders on the causal link between the cartel at issue and the effect on the prices of imported goods, the General Court considered that the Commission had adduced evidence of the immediacy of that effect. In that assessment, the General Court noted, inter alia, in paragraphs 275 and 276 of the judgment under appeal, that the intervention of freight forwarders had not broken the causal chain since it resulted objectively from the cartel at issue, in accordance with the normal functioning of the market.
101In those circumstances, by holding that it was for Air Canada to adduce evidence to the contrary aimed at invalidating such findings, the General Court correctly applied the case-law referred to in paragraph 96 of the present judgment, without reversing the burden of proof.
102In the third place, as regards the complaint based on an alleged infringement of the rights of the defence, stemming from the fact that Air Canada discovered the analysis of the qualified effects only when it acquainted itself with the judgment under appeal, it is sufficient to note that, as stated in paragraph 94 of the present judgment, the General Court relied, in the judgment under appeal, on factors, circumstances and criteria that were already set out in the relevant recitals of the decision at issue and that, moreover, the General Court responded in detail, in paragraphs 225 to 279 of the judgment under appeal, to the argument, raised before it by Air Canada, that, in referring, in recital 1045 of the decision at issue, to the existence of a ‘knock-on effect’ stemming from the anticompetitive practices, the Commission had not adduced evidence that the alleged coordination relating to inbound routes had produced immediate, substantial and foreseeable effects in the European Union or in the EEA. In those circumstances, that complaint cannot succeed.
103It follows that the second to fifth complaints in the second part must be rejected as in part inadmissible and in part unfounded.
The sixth and seventh complaints in the second part, based on the use of the concept of a ‘single and continuous infringement’
–Arguments of the parties
104By the sixth complaint in the second part, Air Canada submits that the General Court applied the concept of a ‘single and continuous infringement’ when assessing the qualified effects in order to extend the scope of Article 101 TFEU to conduct which does not, however, fall within the Commission’s jurisdiction. According to Air Canada, in the case of a single and continuous infringement, each constituent element of the infringement must fall within the scope of the Commission’s jurisdiction, otherwise the Commission could extend its jurisdiction to conduct anywhere in the world, whether or not it has a link with the European Union or the EEA, for the simple reason that that conduct pursues the same objective of restricting competition as the other constituent elements of the infringement falling within the scope of the Commission’s jurisdiction.
105According to Air Canada, the coordination on inbound routes constitutes conduct that is distinct and different from the conduct on outbound routes, and its conduct in relation to those inbound routes served different purposes, exclusively concerned competition in Canada and could not have produced any effect within the European Union or the EEA.
106By the seventh complaint in the second part, Air Canada submits that the General Court erred in its assessment of the effects of the single and continuous infringement taken as a whole. Although the Commission is required to demonstrate that the conduct taken as a whole satisfies each of the four cumulative conditions of the qualified effects test, namely immediate, substantial, direct and foreseeable effects, the General Court released the Commission from the obligation to prove that the conduct at issue satisfied that test to the requisite legal standard and considered that once the single and continuous infringement had been established by the Commission, the latter’s jurisdiction was also established ipso facto. Furthermore, Air Canada submits that the General Court did not carry out any analysis of the effects of the single and continuous infringement and, in so doing, failed to follow the approach set out in the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632).
107The Commission contends that those complaints must be rejected as unfounded.
–Findings of the Court
108In paragraphs 221 to 223 of the judgment under appeal, the General Court, after examining recitals 1045 and 1046 of the decision at issue, stated that, in order to find that the qualified effects test was satisfied, the Commission had relied both on the effects of the single and continuous infringement taken as a whole and on the effects of coordination in relation to inbound freight services taken in isolation and, in particular, on the increased costs of air transport to the EEA and consequently higher prices of imported goods.
109In those circumstances, as it stated in paragraph 224 of the judgment under appeal, the General Court examined, first, the effects of coordination in relation to inbound freight services taken in isolation and, second, the effects of the single and continuous infringement taken as a whole.
110First, in so far as, by the sixth complaint in the second part, Air Canada criticises the grounds on which the General Court found that coordination in relation to inbound freight services, taken in isolation, had an effect in the internal market or in the EEA, it should be recalled that, in accordance with the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is to be limited to points of law. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts. The appraisal of those facts thus does not, save where they are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 10 September 2024, Commission v Ireland and Others, C‑465/20 P, EU:C:2024:724, paragraph 110 and the case-law cited).
111It must be stated that that line of argument put forward in support of the sixth complaint in the second part seeks, in reality, to call into question, by means of a mere assertion, the factual assessments made by the General Court in paragraphs 228 to 245 of the judgment under appeal, concerning the existence of the effect on the prices of imported goods, and Air Canada has not, moreover, alleged any distortion of the facts or evidence on the basis of which the General Court made those factual assessments. To that extent, the sixth complaint in the second part must be rejected as inadmissible.
112Second, in so far as the sixth and seventh complaints in this part are directed against paragraphs 280 to 292 of the judgment under appeal, relating to the effects of the single and continuous infringement taken as a whole, it must be held that, by its first ground of appeal, Air Canada criticises the judgment under appeal only in so far as it recognised that the Commission had jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes. Air Canada thus submits that the Commission could not rely on the concept of a ‘single and continuous infringement’ and that it should have verified that the conduct concerning those inbound routes, which was distinct and different from the conduct relating to outbound routes, had produced qualified effects in the EEA.
113As stated in paragraph 108 of the present judgment, the General Court noted that the Commission had examined whether the qualified effects test was satisfied having regard not only to the single and continuous infringement taken as a whole, but also to the coordination in relation to inbound freight services taken in isolation.
114In paragraph 279 of the judgment under appeal, it held that the Commission was entitled to find that the qualified effects test was satisfied as regards coordination in relation to inbound freight services taken in isolation.
115Since those considerations are in themselves sufficient to justify the Commission’s jurisdiction with regard to inbound routes, the argument relating to taking into account the effects of the single and continuous infringement taken as a whole must be rejected as ineffective.
116In the light of all the foregoing considerations, the first ground of appeal must be rejected in its entirety.
The third ground of appeal, based on the limitation period for the Commission’s power to impose penalties in respect of the conduct relating to the intra-EEA routes and EU-Switzerland routes
Arguments of the parties
117By its third ground of appeal, Air Canada submits that the General Court should have raised of its own motion the plea based on the limitation period for the Commission’s powers to impose penalties in respect of the conduct relating to the intra-EEA routes and EU-Switzerland routes.
118In support of its ground of appeal, Air Canada states that, in, inter alia, three other judgments concerning the cartel at issue, the General Court found that the Commission’s exercise of its power to impose penalties in respect of that conduct was time-barred as from a date prior to the date on which the decision at issue was adopted, and concluded that, by penalising, in that decision, the carriers concerned for that conduct, the Commission had infringed the rules on limitation laid down in Article 25 of Regulation No 1/2003.
119Air Canada, which did not raise that plea before the General Court, submits that it should nevertheless be raised by the Court of Justice of its own motion, given that it is a plea involving a matter of public policy.
120It submits in that regard, first, that the decision at issue, taken when the Commission’s powers were time-barred, is vitiated by a lack of temporal jurisdiction and that the lack of jurisdiction of an EU institution constitutes a ground for annulment involving a matter of public policy which must be raised by the EU judicature of its own motion, even though none of the parties has asked it to do so.
121Second, Air Canada argues that the limitation period for imposing fines which, by their nature, are comparable to criminal penalties, serves the fundamental objectives of the EU legal order, namely legal certainty, sound administration of justice and procedural economy. It is on the basis of those principles that the Court of Justice has recognised that the period for bringing proceedings under Article 263 TFEU is a matter of public policy. Since the application of EU competition law serves objectives in the public interest and may affect the rights of third parties, the limitation period produces erga omnes effects, unlike the limitation period for actions relating to non-contractual liability. Air Canada adds, in that regard, that the failure to comply with the limitation period is, in the present case, manifest and therefore easily ascertainable by any third party.
122Third, Air Canada alleges breach of the principle of equal treatment, arguing that its position is no different from that of the other third-country carriers that were successful before the General Court because the Commission’s powers to impose penalties on them were time-barred.
123The Commission disputes whether the plea based on the limitation period for its powers to impose penalties involves a matter of public policy and contends that the ground of appeal should be rejected.
Findings of the Court
124As a preliminary point, it must be noted that, as Air Canada correctly submits, by the judgments of 30 March 2022, Japan Airlines v Commission (T‑340/17, EU:T:2022:181), of 30 March 2022, Cathay Pacific Airways v Commission (T‑343/17, EU:T:2022:184), and of 30 March 2022, Latam Airlines Group and Lan Cargo v Commission (T‑344/17, EU:T:2022:185), relating to the same cartel and delivered on the same day as the judgment under appeal, the General Court, before which air carriers brought actions for annulment based on the limitation period for the Commission’s powers to impose penalties in respect of the unlawful conduct relating to the intra-EEA and EU-Switzerland routes, held that the Commission had failed to observe the limitation period laid down in Article 25 of Regulation No 1/2003 by adopting, on 17 March 2017, a decision imposing penalties on the air carriers concerned for that unlawful conduct.
125It is also common ground that, unlike those carriers, Air Canada did not raise before the General Court the plea alleging that the limitation period had expired.
126It must therefore be examined whether that plea constitutes a plea involving a matter of public policy which the General Court should have raised of its own motion.
127In the first place, it should be noted that, as is expressly stated in the title of Chapter VII of Regulation No 1/2003 and the wording of Article 25 of that regulation, which appears in that Chapter VII, the periods within which the Commission’s powers to impose penalties are to be exercised are classified as ‘limitation periods’.
128It should be noted, in that regard, that the classification as ‘limitation periods’ is confirmed by other language versions of that regulation, in particular the Spanish- (‘prescripción’), French- (‘prescription’), Italian- (‘prescrizione’), Lithuanian- (‘senaties terminai’) and Portuguese-language (‘prescrição’) versions of that regulation.
129Since the nature of a time limit is to be determined with reference to the general context in which it occurs and with regard to its objective (judgment of 12 December 2002, Belgium v Commission, C‑5/01, EU:C:2002:754, paragraph 52 and the case-law cited), it should also be noted that the nature of the time limit laid down in Article 25 of Regulation No 1/2003 is supported by a contextual and teleological interpretation of that provision.
130In that context, it must be pointed out that Article 26 of Regulation No 1/2003, which, together with Article 25 thereof, constitutes Chapter VII of that regulation, also classifies as a ‘limitation period’ the period after the expiry of which the Commission may no longer enforce decisions taken pursuant to Articles 23 and 24 of that regulation. In addition, both Article 25 of that regulation and Article 26 thereof lay down precisely all the rules applicable to the time limits which they establish, providing not only for the duration of those time limits but also the date from which they are to run and the grounds for interrupting and suspending them. Those rules correspond to the legal rules on limitation.
131As regards the objective of the time limits that circumscribe the Commission’s powers, it must be noted that Article 25 of Regulation No 1/2003 reproduces, in essence, the provisions of Articles 1 to 3 of Regulation (EEC) No 2988/74 of the Council of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ 1974 L 319, p. 1). Reference must therefore be made, when interpreting those time limits, to the preamble to that regulation and, in particular, to the second recital thereof. That recital states that ‘it is necessary in the interests of legal certainty that the principle of limitation be introduced and that implementing rules be laid down’ and that ‘the interests of undertakings and associations of undertakings on the one hand, and the requirements imposed by administrative practice, on the other hand, should be taken into account’. It is thus apparent from that recital that the EU legislature intended to circumscribe the Commission’s powers by introducing the mechanism of extinctive limitation periods, with the aim, in particular, of protecting the rights of undertakings on which the Commission intends to impose fines or periodic penalty payments.
132It therefore follows from the wording of Regulation No 1/2003, its context and the objectives which it pursues that the time limits laid down in Chapter VII thereof constitute limitation periods.
133It is apparent from settled case-law that compliance with a limitation period may not be raised by the EU judicature of its own motion but must be raised by the party affected (judgments of 14 June 2016, Marchiani v Parliament, C‑566/14 P, EU:C:2016:437, paragraph 94 and the case-law cited, and of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 99 and the case-law cited).
134That conclusion cannot be invalidated by Air Canada’s argument that the plea based on the limitation period for the Commission’s powers to impose penalties should be treated in the same way as a plea of lack of competence, given that, after the expiry of the limitation period, the Commission was no longer competent to impose a fine on it.
135Although Article 25 of Regulation No 1/2003 requires the Commission to impose a penalty for a particular infringement within a certain period, beginning to run on the day on which that infringement was committed or, in the case of a continuing or repeated infringement, on the day on which the infringement ceased, that provision has neither the object nor the effect of divesting the Commission of its power to impose penalties in respect of infringements other than that covered by the limitation period. Furthermore, with regard to the latter infringement, it follows from Article 7(1) of Regulation No 1/2003 that the fact that the Commission no longer has the power to impose penalties on the perpetrators of that infringement because the limitation period has expired does not, in itself, preclude the adoption of a decision finding that that infringement was committed, provided, however, that the Commission demonstrates, in such a case, a legitimate interest in adopting a decision finding such an infringement. The Commission therefore remains competent, subject to demonstrating a legitimate interest, to make a finding of infringement where the limitation period has expired. In those circumstances, the fact that the Commission’s powers to impose penalties are time-barred cannot be equated with a lack of competence on the part of that institution.
136Nor can Air Canada validly rely on a breach of the principle of equal treatment resulting from the fact that its own procedural position is no different from that of the air carriers which were successful before the General Court in claiming that the Commission’s action was partially time-barred. Since the plea based on limitation is not a matter of public policy and it is for the undertaking affected to raise it, the fact that the General Court found that the limitation period had expired in respect of the undertakings which raised that plea cannot constitute an unjustified difference in treatment to the detriment of Air Canada. Contrary to what the appellant claims, that difference in treatment results exclusively from the objective circumstance that it refrained from raising the plea alleging that the limitation period had expired, whereas it could have done so under the same conditions as the other air carriers which raised that plea (see, to that effect, judgment of 14 November 2017, British Airways v Commission, C‑122/16 P, EU:C:2017:861, paragraph 98).
137Furthermore, as the Advocate General observed, in essence, in points 164 and 165 of his Opinion, the fact that the fines imposed under Article 23(2) of Regulation No 1/2003 should be classified as ‘criminal’ within the meaning of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, does not permit the inference that the plea based on the limitation period for the Commission’s powers to impose penalties is a plea involving a matter of public policy, as alleged by the appellant. Such a classification does not mean, in itself, that the limitation period for the Commission’s power to impose penalties under Article 25 of Regulation No 1/2003 pursues an objective in the public interest going beyond the protection of the undertakings concerned.
138The claim that the purpose of a limitation period is to ensure legal certainty and that, therefore, it should be treated in the same way as a procedural time limit in accordance with the settled case-law, relied on by Air Canada, according to which the period for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU is a matter of public policy, so that it is for the EU judicature to ascertain, of its own motion, whether it has been complied with, also does not permit the inference that the plea alleging that the period laid down in Article 25 of Regulation No 1/2003 had expired is a plea involving a matter of public policy, as purported by the appellant.
139Procedural time limits are laid down with a view to ensuring due administration of justice, clarity and legal certainty. Thus, in particular, periods prescribed for bringing proceedings, such as that laid down in the sixth paragraph of Article 263 TFEU, and for bringing appeals, such as that laid down in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union, are intended to ensure that administrative decisions and decisions of the courts become final and so to protect public interests (judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 50). That is not the case with the limitation period laid down in Article 25 of Regulation No 1/2003, which, as stated in paragraph 131 of the present judgment, is principally intended to protect the undertakings concerned. Furthermore, the mere claim that the purpose of a limitation period is to ensure legal certainty cannot justify it being treated in the same way as a procedural time limit when those two time restrictions are inherently different (judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 49).
140It follows from all the foregoing considerations that the expiry of the limitation period for the Commission’s power to impose penalties, provided for in Article 25 of Regulation No 1/2003, does not constitute a plea involving a matter of public policy which the General Court should have raised of its own motion.
141Consequently, the third ground of appeal is unfounded.
The second ground of appeal, relating to the imputation to Air Canada of liability for the infringement committed on intra-EEA routes and EU-Switzerland routes
Arguments of the parties
142By its second ground of appeal, Air Canada submits that the General Court erred in law by holding it liable for the single and continuous infringement in so far as that infringement concerned intra-EEA routes and EU-Switzerland routes, even though it never operated or could not legally have operated such routes.
143That ground of appeal consists, in essence, of four parts.
144By the first part, Air Canada submits that the General Court incorrectly substituted its own reasoning for that of the decision at issue, while upholding the finding in that decision that Air Canada had participated in a single and continuous infringement.
145In recital 890 of the decision at issue, the Commission had stated that the contacts concerning routes that carriers never operated or which they could not legally have operated could also be relevant to establishing the existence of a single and continuous infringement. It had also stated, in that recital, that its assessment stemmed from the fact that there were no insurmountable barriers preventing the parties from providing airfreight services on those routes, and had cited the case-law stemming from the judgment of 20 January 2016, Toshiba Corporation v Commission (C‑373/14 P, EU:C:2016:26).
146According to Air Canada, in paragraphs 366 to 377 of the judgment under appeal, the General Court did not base its assessment on that case-law, relating to there being no insurmountable barriers preventing any potential competition on the market concerned, but on new reasoning which did not appear in the decision at issue, according to which the existence of a competitive relationship between the undertakings concerned is not a condition for imputing to an undertaking liability for anticompetitive conduct comprising a single and continuous infringement.
147By the second part, Air Canada submits that, by relying on case-law and an analysis which did not appear in the decision at issue, the General Court infringed its rights of defence, since it was not given an opportunity to submit observations on the Commission’s new position, which the General Court endorsed in the judgment under appeal.
148By the third part, which refers in particular to paragraph 377 of the judgment under appeal, Air Canada complains that the General Court failed to provide appropriate and sufficient reasons to justify its analysis that the Commission was entitled to find Air Canada liable for aspects of the single and continuous infringement on routes on which it could not operate. In so doing, the General Court infringed Article 36 of the Statute of the Court of Justice of the European Union, relating to the requirement to state reasons for judgments, and Article 41 of the Charter of Fundamental Rights of the European Union.
149By the fourth part, Air Canada submits that the General Court, in any event, erred in law by stating generally that the existence of a competitive relationship is irrelevant in the context of any single and continuous infringement, whereas the judgments cited by the General Court in paragraphs 366 to 376 of the judgment under appeal, first, do not justify such a general conclusion and, second, were delivered in cases in which the criterion of there being no insurmountable barriers was not discussed.
150The Commission disputes all of those arguments.
Findings of the Court
151It should be recalled that, according to settled case-law, an infringement of Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’, because their identical object distorts competition within the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 41 and the case-law cited, and judgment of 27 June 2024, Servier and Others v Commission, C‑201/19 P, EU:C:2024:552, paragraph 240).
152An undertaking which has participated in such a single and continuous infringement through its own conduct, which fell within the definition of an ‘agreement’ or a ‘concerted practice’ having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may accordingly be liable also in respect of the conduct of other undertakings in the context of that infringement throughout the period of its participation in the infringement (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 42 and the case-law cited, and judgment of 27 June 2024, Servier and Others v Commission, C‑201/19 P, EU:C:2024:552, paragraph 241).
153In order to establish the participation of an undertaking in the implementation of such a single infringement, the Commission must prove that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen such conduct and was prepared to take the risk (judgments of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 42 and the case-law cited, and of 1 February 2024, Scania and Others v Commission, C‑251/22 P, EU:C:2024:103, paragraph 95 and the case-law cited).
154An undertaking may thus have participated directly in all the forms of anticompetitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the forms of that conduct, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (judgments of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 43, and of 1 February 2024, Scania and Others v Commission, C‑251/22 P, EU:C:2024:103, paragraph 96 and the case-law cited).
155In the present case, the General Court, in paragraphs 371 to 374 and 376 of the judgment under appeal, recalled, in essence, the elements of the case-law referred to in paragraphs 151 to 154 of the present judgment, before identifying the reasons why the Commission had imputed to Air Canada liability for the single and continuous infringement in so far as it concerned intra-EEA routes and EU-Switzerland routes and examining whether those reasons were well founded.
156In that regard, so far as concerns the first part, alleging a substitution of grounds, it must be held that the General Court did not substitute its own assessment for that of the Commission in order to reject the plea alleging that the Commission made manifest errors of assessment and of law in imputing to Air Canada liability for the single and continuous infringement on intra-EEA routes and EU-Switzerland routes.
157In paragraphs 161 and 162 of the judgment under appeal, the General Court noted that, in the decision at issue, the Commission had recalled that an undertaking could, under certain conditions, be found liable for a single and continuous infringement as a whole even if that undertaking had not participated directly in all its constituent elements, and had concluded that there was a single and continuous infringement, encompassing, inter alia, all the routes concerned, finding that the contacts at issue were aimed at the attainment of the single objective desired by those responsible, within the framework of an overall plan.
158After analysing, in paragraphs 162 and 164 of that judgment, recitals 869 to 902 and Article 1 of the decision at issue, the General Court held, in paragraph 165 of that judgment, that ‘it was easy for [Air Canada] to understand that – and for the [General Court itself] to review whether – it was on the ground that [Air Canada] intended to contribute to the overall plan pursuing the common anticompetitive objective described in recitals 872 to 876 of [that] decision and had awareness (proved or presumed) of the offending conduct of the other incriminated carriers in which it [had] not participate[d] directly that the Commission [had] imputed to it liability for the single and continuous infringement, including in so far as it concerned intra-EU routes and EU-Switzerland routes’.
159Similarly, referring in particular to those paragraphs 161 and 162, the General Court noted, in paragraph 378 of that judgment, that ‘it was on the ground that [Air Canada] intended, irrespective of its status as a potential competitor on intra-EEA routes and EU-Switzerland routes, to contribute to the overall plan pursuing [a] common anticompetitive objective … and had awareness (proved or presumed) of the offending conduct of the other incriminated carriers in which it [had] not participate[d] directly that the Commission [had] imputed to it liability for the single and continuous infringement, including in so far as it concerned intra-EEA routes and EU-Switzerland routes’.
160The General Court added, in paragraph 379 of the judgment under appeal, that it could not be inferred from recital 890 of the decision at issue ‘that the Commission [had] intended to impute liability to [Air Canada] for the single and continuous infringement in so far as it concerned intra-EEA routes and EU-Switzerland routes on the basis of its status as a potential competitor on those routes’, since ‘it [was] apparent from both its wording and its purpose and context that that recital [did] not concern the liability of the various incriminated carriers for the single and continuous infringement, but the existence of that [single and continuous infringement]’.
161In so doing, it follows from the findings of the General Court that, in order to impute to Air Canada liability for the single and continuous infringement in so far as it related to intra-EEA routes and EU-Switzerland routes, the Commission did not rely in the decision at issue on there being no insurmountable barriers to Air Canada’s entry into the markets concerned, but on the fact that that undertaking had contributed, through its own conduct, to the common objectives pursued by all the participants and on the fact that it was aware of the offending conduct of the other carriers indirectly.
162It follows that, contrary to the arguments put forward by Air Canada in support of the first part, the General Court did not substitute its own reasoning for that of the Commission.
163As regards, more specifically, Air Canada’s argument that, in paragraphs 366 to 377 of the judgment under appeal, the General Court relied on case-law and an analysis which did not appear in the decision at issue, it must be stated that the case-law cited in those paragraphs was referred to in footnote 1311 under recital 867 of the decision at issue, or was discussed by Air Canada in its reply. As recalled in paragraph 85 of the present judgment, where the General Court merely responds to the line of argument raised before it by the parties, it cannot be considered that the General Court is substituting its own reasoning for that of the author of the act challenged before it.
164As regards the second part, alleging infringement of the rights of the defence, it is sufficient to note that it is based on an incorrect premiss since, contrary to what Air Canada maintains, the General Court did not substitute its own grounds for those of the Commission on the basis of a new line of argument put forward by the Commission during the proceedings. Consequently, that part of the ground of appeal must be rejected as unfounded.
165As regards the third part, alleging a defective statement of reasons, in that the General Court did not set out the reasons why the principles used by it were applicable to the facts of the present case and thus led it to conclude that the Commission was entitled to find Air Canada liable for the single and continuous infringement, including as regards the routes on which that carrier could not operate, it must be stated that the General Court, as already set out in paragraph 159 of the present judgment, noted, in paragraph 378 of the judgment under appeal, that the Commission, in order to impute to Air Canada liability for the single and continuous infringement, including in so far as it concerned those routes, had relied on that undertaking’s contribution to the overall plan pursuing the common anticompetitive objective and on its awareness of the offending conduct of the other incriminated carriers.
166Thus, the General Court made it clear that Air Canada’s liability in respect of the routes on which it could not operate did not stem from that carrier’s direct participation in the infringement on those routes, but from its indirect participation therein, on account of its awareness of the other offending conduct planned or put into effect by the other participants in the cartel at issue in pursuit of the same objectives.
167Air Canada is thus incorrect to claim that the statement of reasons was defective.
168Last, as regards the fourth part, alleging that the General Court erred in law in finding, in the present case, that the existence of a competitive relationship was irrelevant for the purpose of assessing the existence of a single and continuous infringement, whereas the case-law stemming from, inter alia, the judgment of 26 January 2017, Duravit and Others v Commission (C‑609/13 P, EU:C:2017:46), is not applicable in the present case, since that case-law is limited to the particular facts and circumstances of each case and does not lend itself to axiomatic and general application, it must be stated that Air Canada has not adduced any evidence to show how the present case differs from that which gave rise to that judgment, in paragraph 124 of which the Court of Justice held that the existence of a competitive relationship between the participating undertakings is not a requirement for classifying anticompetitive conduct as a single and continuous infringement. Since that assessment is not linked to the degree of gravity of the infringement, Air Canada cannot rely on the allegedly ‘attenuated and highly speculative’ nature of the single and continuous infringement at issue in the present case. Nor can it claim that the material and geographic scope of the latter infringement is broader than that of the single and continuous infringement at issue in the case that gave rise to that judgment.
169Furthermore, in so far as Air Canada submits that only an ‘active contribution’ by the undertaking to the infringement or proof that the undertaking played an ‘essential role’ in the infringement would allow it to be found liable on account of its contribution to the overall plan pursuing a common objective, it should be borne in mind that, in accordance with settled case-law, it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anticompetitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anticompetitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (judgment of 1 February 2024, Scania and Others v Commission, C‑251/22 P, EU:C:2024:103, paragraph 99 and the case-law cited).
170It is also apparent from the case-law that, where the Commission shows that the undertaking concerned participated in meetings at which anticompetitive agreements were concluded, without manifestly opposing them, the Commission does not in addition have to prove that that undertaking intended to take part in the infringement, but that it is for that undertaking to provide evidence of its distancing itself from those agreements, and in particular from their geographic scope (judgment of 1 February 2024, Scania and Others v Commission, C‑251/22 P, EU:C:2024:103, paragraph 101).
171In the present case, in paragraph 382 of the judgment under appeal, the General Court noted that, as regards the anticompetitive activities relating to intra-EEA routes and EU-Switzerland routes in which Air Canada had not participated directly, it did not deny, in connection with its third plea raised before the General Court, that it had the requisite awareness of them.
172The General Court added, in paragraph 384 of that judgment, that it was apparent from the decision at issue that Air Canada had intended to contribute by its own conduct to the achievement of the single anticompetitive aim of restricting competition between the incriminated carriers on surcharges at least within the European Union, the EEA and Switzerland, given that Air Canada ‘[had] not only encouraged the continuation of the single and continuous infringement and compromised its discovery by failing to distance itself publicly from the content of the contacts relating to intra-EEA routes and EU-Switzerland routes in which it [had taken] part or to report them to the competent administrative authorities, but [had] also, by coordinating the surcharges and the refusal to pay commission on EEA-third country routes, helped to ensure that freight forwarders could not circumvent the payment of surcharges on intra-EEA routes and EU-Switzerland routes by using alternative routes inter alia via Canada and, consequently, contributed to the achievement of the common anticompetitive aim’.
173Having thus found that the conditions for imputing the single and continuous infringement to Air Canada were satisfied, the General Court did not err in law in inferring therefrom that the Commission was entitled to find Air Canada liable for the single and continuous infringement in so far as it concerned intra-EEA routes and EU-Switzerland routes, irrespective of whether it was a potential competitor on those routes.
174The fourth part is therefore unfounded.
175Accordingly, this ground of appeal must be rejected as unfounded.
176Since none of the grounds of appeal put forward by Air Canada in support of its appeal has been upheld, the appeal must be dismissed in its entirety.
Costs
177In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
178Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
179Since the Commission has applied for costs to be awarded against Air Canada and the latter has been unsuccessful, Air Canada must be ordered to bear its own costs and to pay those incurred by the Commission.
Operative part
On those grounds, the Court (Fifth Chamber) hereby:
1.Dismisses the appeal;
2.Orders Air Canada to pay the costs.
Delivered in open court in Luxembourg on 26 February 2026.
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