Société Air France SA v European Commission (C-369/22 P)

Contents

Judgment of the Court (Fifth Chamber)26 February 2026^note(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 airfreight services (fuel surcharge, security surcharge, and refusal to pay commission on surcharges) — Inbound freight services — Territorial jurisdiction of the Commission — Qualified effects — Calculation of the fine — Mitigating circumstance — Taking into account of regulatory regimes in force in third countries — Equal treatment — Duration of participation in the single and continuous infringement — Evidence — Participation in the various components of the single and continuous infringement)In Case C‑369/22 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 8 June 2022,Société Air France SA, established in Roissy (France), represented by M. Blayney and A. Wachsmann, avocats,the other party to the proceedings being:European Commission, represented by P. Berghe and A. Dawes, acting as Agents, and initially by V. Bringer and N. Coutrelis, avocats, and subsequently by N. Coutrelis, avocate,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: S. Spyropoulos, Administrator,having regard to the written procedure and further to the hearing on 18 April 2024,after hearing the Opinion of the Advocate General at the sitting on 5 September 2024,gives the following

Judgment

1By its appeal, Société Air France SA (‘Air France’) seeks to have set aside the judgment of the General Court of the European Union of 30 March 2022, Air France v Commission (T‑338/17, the judgment under appeal’, EU:T:2022:180), by which the General Court dismissed its action seeking, principally, 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 France; and, in the alternative, annulment in part of that decision and a reduction of the fine imposed on Air France 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 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, and corrigendum OJ 2015 L 210, p. 38) (‘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 appeared in the annex to the EC-Switzerland Air Transport Agreement since its entry 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 (i) Decision of the EEA Joint Committee No 130/2004 of 24 September 2004 amending Annex XIV (Competition), Protocol 21 (On the implementation of competition rules applicable to undertakings) and Protocol 23 (Concerning the cooperation between the surveillance authorities) to the EEA Agreement (OJ 2005 L 64, p. 57), which decision entered into force on 19 May 2005; and (ii) 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 32(c) of Regulation No 1/2003 provided that that regulation was not to apply ‘to air transport between Community airports and third countries’.

9That provision was repealed by Article 3 of Regulation No 411/2004, with effect from 1 May 2004.

Regulation No 411/2004

10Recitals 2, 3 and 7 of Regulation No 411/2004 state:(2) … the [European] Commission does not enjoy powers of investigation and enforcement with regard to infringements of Articles [101] and [102 TFEU] in respect of air transport between the Community and third countries equivalent to those enjoyed as regards air transport within the Community. … Furthermore, the specific rights [and] powers … assigned to national courts and the competition authorities of the Member States by Regulation (EC) No 1/2003 do not apply to air transport between the Community and third countries; …(3) Anticompetitive practices in air transport between the Community and third countries may affect trade between Member States. Since the mechanisms enshrined in Regulation (EC) No 1/2003, the function of which is to implement the rules on competition under Articles [101] and [102 TFEU] are equally appropriate for applying the competition rules to air transport between the Community and third countries, the scope of that regulation should be extended to cover such transport.…(7) The Commission should be empowered to grant block exemptions in the air transport sector in respect of traffic between the Community and third countries as well as in respect of traffic within the Community. …’

The 2006 Guidelines

11Points 29 and 37 of 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; ‘the 2006 Guidelines’) state:‘29. The basic amount may be reduced where the Commission finds that mitigating circumstances exist, such as:…– where the anticompetitive conduct of the undertaking has been authorized or encouraged by public authorities or by legislation. ……37. Although these Guidelines present the general methodology for the setting of fines, the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology or from the limits specified in point 21.’

Background to the case and the decision at issue

12The background to the dispute and the decision at issue, as set out in paragraphs 1 to 58 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.

13Air France is an air transport company, 100% of whose voting rights and economic rights are held by the Air France-KLM holding company (‘Air France-KLM’). Air France carries on activities in the market for airfreight.

14In 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

15On 7 December 2005, the 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 extensive 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 to the refusal on the part of those carriers to pay the freight forwarders a commission on the surcharges (‘the refusal to pay commission’).

16On 14 and 15 February 2006, the Commission carried out unannounced inspections at the premises of a number of carriers.

17Following those inspections, a number of carriers, including Air France-KLM, submitted an application for immunity under the notice on immunity from fines and reduction of fines in cartel cases, referred to in paragraph 15 of the present judgment.

18On 19 December 2007, the Commission addressed a statement of objections to 27 carriers, including Air France, all of which subsequently submitted written observations. An oral hearing was held from 30 June to 4 July 2008.

The initial decision

19On 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 France.

20The 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

21By judgment of 16 December 2015, Air France v Commission (T‑63/11, EU:T:2015:993), the General Court annulled the initial decision in so far as it concerned Air France. 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.

22The General Court found that that decision was vitiated by a defective statement of reasons.

The decision at issue

23On 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.

24On 17 March 2017, the Commission adopted the decision at issue, which was addressed to 19 carriers, including Air France.

25The decision at issue 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 so doing 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 Agreement.

26In 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 price of airfreight 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.

27In Section 5 of the decision at issue, headed ‘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.

28In 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.

29First, 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, 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 to 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, together with EU-third country routes, ‘EEA-third country routes’); and, lastly, Article 8 of the EC-Switzerland Air Transport Agreement to agreements and practices prior to 1 June 2002 concerning routes between airports within the European Union and Swiss airports (‘EU-Switzerland routes’). It stated, in recital 832 of that decision, that that 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’.

30Second, 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 [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’).

31In 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 freight 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.

32Furthermore, 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.

33Subsection 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’, the investigation of which had revealed 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’.

34Second, in recital 869 of the decision at issue, the Commission considered that ‘the conduct in question constitutes 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. In that context, the Commission stated, in recital 881 of that decision, that Air France was involved in those three elements.

35Third, 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.

36Fourth, in recitals 972 to 1021 of the decision at issue, the Commission examined the legislation 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.

37Fifth, in recitals 1024 to 1035 of the decision at issue, the Commission found that the single and continuous infringement was liable 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.

38Section 7 of the decision at issue, headed ‘Duration of the infringement’, contains recitals 1146 to 1169 of that decision. As is clear 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 that 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;– 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.

39In recital 1169 of that decision, the Commission found that the duration of the infringement to be taken into account ran, in so far as concerned Air France, from 7 December 1999 to 14 February 2006.

40In 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 2006 Guidelines. It applied, inter alia, on the basis of point 37 of those guidelines, a reduction of 50% to the basic amounts of the fines, since some of the services relating to inbound routes and to routes from the EEA to third countries, with the exception of EU-Switzerland routes, were provided outside the territory covered by the EEA Agreement and part of the damage was therefore likely to have occurred outside that territory. Moreover, in accordance with point 29 of the Guidelines, the Commission granted the incriminated carriers an additional reduction of 15% to the basic amounts of the fine (‘the general reduction granted on account of mitigating circumstances’) on the ground that certain regulatory regimes had encouraged the cartel at issue.

41Articles 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 routes between airports within the EEA, for the following periods:…(c) [Air France,] from 7 December 1999 until 14 February 2006;…(2) The following undertakings infringed Article 101 [TFEU] as regards [EU-third country routes], for the following periods:…(c) [Air France,] 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:…(c) [Air France,] 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:…(c) [Air France,] 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:…(b) [Air France-KLM] and [Air France] jointly and severally: EUR 182920000;…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

42By application lodged at the Registry of the General Court on 30 May 2017, Air France brought an action principally seeking annulment of the decision at issue in its entirety in so far as the latter decision concerned it; in the alternative, annulment of Article 1(1)(c), (2)(c), (3)(c) and (4)(c), Article 3(b) and Article 4 of the decision at issue and a reduction of the amount of the fine imposed on it in that decision; in the further alternative, annulment of Article 3(b) of the decision at issue and a reduction of the amount of the fine thereby imposed on it.

43In support of that action, Air France raised eight pleas in law together with nine arguments seeking a reduction of the fine imposed on it.

44Amongst those pleas, the third alleged that the Commission lacked jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services; the seventh alleged errors and infringement of the principle of proportionality in the calculation of the duration of Air France’s participation in the single and continuous infringement, and the eighth alleged failure to state reasons and inadequacy of the general reduction granted on account of mitigating circumstances. The General Court also raised a plea of its own motion alleging lack of jurisdiction on the part of the Commission in the light of the EC-Switzerland Air Transport Agreement to find and penalise an infringement of Article 53 of the EEA Agreement on routes between airports in the EEA Contracting Parties not being Member States and airports in Switzerland (‘non-EU EEA-Switzerland routes’).

45The arguments in support of Air France’s application for a reduction of the fine were identical, in respect of seven of those arguments, to its eighth plea in law. Air France added, in response to the General Court’s measures of organisation of procedure relating to the plea that the latter had raised of its own motion, two further arguments relating to, first, the revenues derived from freight services carried out on non-EU EEA-Switzerland routes, which should be excluded from the value of sales, and, second, the fact that the exclusion of non-EU EEA-Switzerland routes from the geographic scope of the single and continuous infringement was such as to justify a reduction in the gravity factor.

46By way of the judgment under appeal, the General Court rejected all of those pleas, including the plea it had raised of its own motion. However, in the context of the latter plea, it found that the Commission had acknowledged that it was possible that it had ‘inadvertently’, in the determination of the fines, included in the value of sales the turnover which some of the incriminated carriers generated on non-EU EEA-Switzerland routes during the period concerned, whilst finding that this had concerned only the revenues to be taken into account for the purpose of calculating the basic amount of those fines. In addition, in the context of the eighth plea, it held that the Commission was not justified in raising certain contacts described in the decision at issue against Air France, but that that institution had nevertheless been entitled to consider that it had sufficient evidence in so far as concerned Air France’s participation in the cartel at issue from 7 December 1999 to 19 January 2001 and from 20 October 2005 to 14 February 2006.

47As regards the amount of the fine, the General Court noted that the total value of sales generated during 2005 by Air France – namely EUR 1150248000 included revenue generated on non-EU EEA-Switzerland routes, namely EUR 2502, whereas those routes did not fall within the scope of the single and continuous infringement found by the Commission, as the General Court had itself found in the context of the plea raised of its own motion. It therefore considered that that sum was to be excluded from the total value of sales, in accordance with Air France’s third argument. Furthermore, it considered that the exclusion of certain contacts from the body of evidence, resulting from the examination of the seventh plea, did not justify an additional reduction being granted to Air France on account of mitigating circumstances. It added that there was nothing to show that the general reduction granted on account of mitigating circumstances was inappropriate. Having exercised its unlimited jurisdiction, the General Court set the final amount of the fine to be imposed on Air France at EUR 182920000. Since that amount was identical to the amount of the fine imposed on Air France in the decision at issue, the General Court rejected Air France’s claim seeking alteration of the amount of the fine.

Forms of order sought by the parties to the appeal

48By its appeal, Air France submits that the Court should:– principally, set aside the judgment under appeal and, consequently, annul the decision at issue in so far as it concerns Air France and imposes a fine on it;– in the alternative, reduce to an appropriate amount the fine of EUR 182920000 imposed on Air France jointly and severally with Air France-KLM by Article 3(b) of the decision at issue; and– in any event, order the Commission to pay the costs incurred before both the Court of Justice and the General Court.

49The Commission contends that the Court should:– dismiss the appeal and order Air France to pay the costs;– in the alternative, if the appeal is upheld, refer the case back to the General Court and reserve the costs.

The appeal

50In support of its appeal, Air France relies on three grounds of appeal. By its first, and main ground of appeal, Air France submits that the General Court erred in law and infringed its obligation to state reasons when it upheld the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services. By its second ground of appeal, raised in the alternative, Air France submits that the General Court infringed its obligation to state reasons and the principle of equal treatment when it took account of regulatory regimes. By its third ground of appeal, also raised in the alternative, Air France submits that the General Court erred in law when it assessed Air France’s participation in the single and continuous infringement between 7 December 1999 and 14 February 2006.

The first ground of appeal, concerning the jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services

51Air France’s first ground of appeal comprises two parts. By the first part, it submits that the General Court infringed Regulation No 411/2004 by misinterpreting that regulation. By the second part, it submits that the General Court’s analysis of the qualified effects is in any event vitiated by errors of law and an infringement of the obligation to state reasons.

The first part of the first ground of appeal, alleging infringement of Regulation No 411/2004

–Arguments of the parties

52Air France submits that paragraphs 90 and 94 of the judgment under appeal are incorrect in law in so far as the General Court held in those paragraphs that Regulation No 411/2004 and Decision of the EEA Joint Committee No 40/2005 conferred jurisdiction on the Commission to apply Articles 101 and 102 TFEU respectively to EU-third country routes from 1 May 2004 onwards and Articles 53 and 54 of the EEA Agreement to non-EU EEA-third country routes from 19 May 2005 onwards, and that that jurisdiction did not exclude inbound freight services, on the ground that there was no longer an ‘express legal basis’ capable of justifying the continued exclusion of those services from the regime established by Regulation No 1/2003.

53It is true that the General Court acknowledged that the application of Regulation No 411/2004 to inbound freight services is not expressly provided for by that regulation, since the direction of the routes referred to is not specified in that regulation. However, it considered that the absence of an express reference to the Commission’s lack of jurisdiction over inbound freight services had to be interpreted as conferring jurisdiction on the Commission in that regard. In the light of the principle that any doubt in the mind of the Court of Justice must operate to the advantage of the undertaking to which a decision finding an infringement is addressed, the applicable legislation should, in Air France’s view, be interpreted in a way which is not unfavourable to that undertaking. Accordingly, Air France submits that the silence of Regulation No 411/2004 on the direction of routes ‘between third countries and the European Union’ and the express reference in that regulation to the Commission’s jurisdiction in the air transport sector in respect of traffic ‘between the Community and third countries’ should have led the General Court to interpret that regulation as excluding inbound freight services from the Commission’s jurisdiction.

54The Commission contends that the first part of the first ground of appeal is unfounded.

–Findings of the Court

55It should be noted, in the first place, that, according to Article 3 of Regulation No 411/2004, point (c) of Article 32 of Regulation No 1/2003, which provided that the latter regulation was not to apply ‘to air transport between [EU] airports and third countries’, is deleted. According to Article 4 of Regulation No 411/2004, that deletion took effect on 1 May 2004. Accordingly, since that date, Regulation No 1/2003, as amended by Regulation No 411/2004, no longer contains a provision disapplying Regulation No 1/2003 from air transport between airports in the European Union and airports in third countries.

56Furthermore, neither the provisions of Regulation No 411/2004 nor the preamble to that regulation, in particular recitals 2, 3 and 7 thereof, indicate, as the General Court observed, in essence, in paragraph 91 of the judgment under appeal, that, by referring, both in the title of that regulation and in those recitals, to air transport ‘between’ the European Union and third countries, the EU legislature intended to refer only to air transport ‘from’ the European Union ‘to’ third countries, or, in other words, only to outbound air transport. On the contrary, the term ‘between’, according to its usual meaning in everyday language, designates the space between two places, two objects or two persons. It is therefore neutral as regards, in the present case, the direction of the air transport concerned.

57Consequently, the General Court did not err in law by finding, in paragraph 90 of the judgment under appeal, that, since 1 May 2004, there is no longer any ‘express legal basis’ capable of justifying the continued exclusion of inbound freight services from the regime established by Regulation No 1/2003, as amended by Regulation No 411/2004.

58In the second place, contrary to what Air France suggests, the judgment under appeal does not, in any event, give rise to any doubt on the part of the General Court as to the scope of Regulation No 411/2004. In that regard, first, Air France’s claim that the General Court acknowledged that the application of Regulation No 411/2004 to inbound freight services is not expressly provided for by that regulation finds no basis in the judgment under appeal. That claim is also refuted by the literal interpretation of that regulation set out in paragraph 90 of the judgment under appeal. Second, the General Court also noted, in paragraphs 91 to 93 of that judgment, that there is nothing in the wording or general scheme of that regulation to suggest that the EU legislature intended to maintain the exclusion of inbound freight services from the scope of Regulation No 1/2003, that the purpose of Regulation No 411/2004 also supported the inclusion of inbound freight services within that scope, and that the travaux préparatoires for that regulation confirmed that the EU legislature did not in any way intend to make a distinction between, in particular, inbound routes and routes from the EEA to third countries.

59In the third place, it is common ground that Regulation No 411/2004 was incorporated into the EEA Agreement by Decision of the EEA Joint Committee No 40/2005, with Regulation No 1/2003 having itself been incorporated into the EEA Agreement by Decision of the EEA Joint Committee No 130/2004, and that those two decisions entered into force on 19 May 2005.

60It follows from all of the foregoing that the General Court was entitled, in paragraph 94 of the judgment under appeal, to conclude that inbound freight services fall within the scope of Regulation No 411/2004 and of Decision of the EEA Joint Committee No 40/2005, and to infer from that conclusion that the Commission did not err in finding, in recital 1041 of the decision at issue, that Article 101 TFEU was applicable to air transport between the European Union and third countries ‘in both directions’, with the same considerations applying to Article 53 of the EEA Agreement as regards non-EU EEA-third country routes.

61The first part of the first ground of appeal must consequently be rejected as unfounded.

The second part of the first ground of appeal, alleging errors of law in the analysis of the qualified effects and infringement of the obligation to state reasons

–Arguments of the parties

62Air France submits that, in any event, the General Court erred in law and infringed its obligation to state reasons by justifying the Commission’s jurisdiction in respect of inbound freight services in the light of the test based on the qualified effects of anticompetitive practices in the European Union (‘the qualified effects test’), since that test is not satisfied in the present case.

63It is argued, first, that paragraphs 119, 123 and 124 of the judgment under appeal are vitiated by an infringement of Article 101 TFEU and a confusion between, on the one hand, the Commission’s territorial jurisdiction and, on the other hand, the classification of a practice as a restriction of competition. By stating that the application of the qualified effects test cannot require proof of the actual effects required for conduct to be classified as a restriction of competition ‘by effect’, the General Court held that it is possible to avoid demonstrating the qualified effects of a practice implemented outside the EEA where that practice can be classified as a restriction of competition by object. Air France submits that that is incorrect since, in order to establish, in the light of the qualified effects test, any jurisdiction that the Commission may have in respect of practices implemented outside the EEA, the Commission must demonstrate that the practices at issue produce foreseeable, immediate and substantial effects in the EEA, and that those effects are probable. None of those requirements correspond to those defining the possible effects of an infringement by object. The analysis of the qualified effects test cannot be relaxed where there is a restriction of competition by object.

64It is argued, second, that the General Court did not apply the standard of proof defined by the Court of Justice in the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), in relation to the demonstration of qualified effects and infringed its obligation to state reasons. As regards practices implemented outside the EEA and concerning services negotiated and invoiced to customers outside the EEA, establishing the Commission’s jurisdiction over those practices would require the Commission to demonstrate that those practices have ‘foreseeable, immediate and substantial effects in the EEA’. In paragraphs 132, 133 and 147 of the judgment under appeal, the General Court considered indirect effects, which it itself acknowledged were uncertain, as sufficient to characterise ‘qualified effects’, within the meaning of the case-law of the Court of Justice, with no further mention, moreover, of that uncertainty in paragraph 149 of that judgment. Such effects cannot, however, be established where they are too remote or purely hypothetical.

65Third, Air France submits that the General Court neither demonstrated nor ascertained the ‘probable’ nature of the alleged qualified effects. Like the Commission did, the General Court confined itself to recalling the nature of the infringement, without ascertaining the effect of the surcharges on the total sale price of freight services, whereas those surcharges represented on average only 18% of the final price of services in 2004-2005. Nor did the General Court seek to ascertain whether and to what extent the freight forwarders had actually passed on to the shippers that alleged price increase in the total cost of transport, or whether and to what extent the shippers had passed on that alleged increase in the cost of transport to consumers.

66It is argued, fourth, that at the stage of analysing the foreseeability of the effects, the General Court engaged in circular reasoning, requiring Air France to adduce impossible proof, and unlawfully reversing the burden of proof. Thus, in paragraphs 136, 137 and 140 of the judgment under appeal, the General Court criticised Air France for failing to demonstrate that a ‘waterbed effect’ was probable as to render unforeseeable the effect at issue, namely, the price increase. However, the burden of proof for that demonstration lay with the Commission. Air France states that it relied on that effect in the context of the administrative procedure, but that the Commission confined itself to emphasising that a restriction of competition by object was at issue, without analysing the relevance of that effect in the decision at issue.

67Air France submits, fifth, that it is apparent from paragraph 172 et seq. of the judgment under appeal that the General Court considered that it could justify the Commission’s jurisdiction over inbound routes by reference to the single and continuous nature of the infringement. However, the concept of a ‘single and continuous infringement’ does not allow the scope of the prohibitions under the TFEU to be extended. The reference made in that connection by the General Court to paragraph 57 of the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), is irrelevant and disregards the scope of that judgment. The case which gave rise to that judgment concerned a practice implemented globally, on a single geographic market with a worldwide dimension and having an impact, inter alia, in the EEA, whereas, in the present case, the practices were implemented on separate geographic markets, some of which, like the market for inbound routes, are situated outside the EEA. In so doing, the General Court also inverted the steps in its reasoning. It is appropriate to begin by assessing whether each substantial element of the infringement falls within the scope of the Commission’s jurisdiction. It is only then that it will be necessary, where appropriate, to assess whether the various practices assessed follow an overall plan in the context of a single and continuous infringement. Practices which the Commission has no jurisdiction to assess cannot be artificially linked a posteriori to practices which fall within the scope of its jurisdiction.

68Sixth, it is argued that in order to demonstrate qualified effects, the General Court substituted its own reasoning for that of the decision at issue, contrary to the case-law. Thus, while the existence of qualified effects is examined only in recital 1045 of the decision at issue, the analysis carried out by the General Court – which is, moreover, insufficient, does not appear in that decision. Air France refers, in that regard, to the analysis carried out by the General Court when it assessed the relevance of ‘the effect at issue’, in paragraphs 115 to 134 of the judgment under appeal, the foreseeability of that effect, in paragraphs 135 to 152 of that judgment, the substantiality of that effect, in paragraphs 153 to 163 of that judgment, the immediacy of that effect, in paragraphs 164 to 171 of that judgment, and the effects of the single and continuous infringement in paragraphs 172 to 183 of the judgment under appeal. In each of those steps, the General Court relied on evidence on which the Commission did not rely in the decision at issue. It therefore gave a new statement of reasons to justify the Commission’s erroneous reasoning. In any event, even if the Commission had in fact established the existence of qualified effects on the basis of the recitals of the decision at issue referred to by the General Court in the judgment under appeal, such regularisation a posteriori would be insufficient, since the failure to state reasons for the contested act cannot be remedied by the fact that the person concerned learns the reasons for it during the judicial proceedings.

69The Commission contends that the second part of the first ground of appeal is unfounded.

–Findings of the Court

70In the first place, it should be noted that, as Air France submits, in paragraph 119 of the judgment under appeal, the General Court stated that where conduct has been found by the Commission, as in the case at hand, 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.

71Similarly, it stated, in paragraph 123 of that judgment, that interpreting the qualified effects test, as Air France appeared to advocate, 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.

72The General Court inferred therefrom, in paragraph 124 of that judgment, that Air France could neither (i) validly claim that the Commission had 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 had not carried out any analysis of the effects produced by that conduct in the internal market or within the EEA for the purpose of applying that test.

73However, as already stated in the reasons set out in the second part of paragraph 124, it cannot be inferred from those paragraphs disputed by Air France that, in order to establish that the qualified effects test was satisfied in the case at hand, the General Court held that it was sufficient that the cartel at issue could be classified as a restriction of competition by object.

74It is in fact clear from an overall reading of paragraphs 115 to 133 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 102 of the judgment under appeal, which Air France had submitted. Thus, in those paragraphs, the General Court set out the reasons why Air France was wrong to maintain that the fact that, in the reasons for the decision at issue relating, in respect of recital 917 of the latter decision, to the classification of the restriction of competition at issue and, in respect of recitals 1190 and 1277 of the decision at issue, to the calculation of the fine, the Commission had stated that there was no need to demonstrate actual anticompetitive effects, given that the anticompetitive object of the conduct in question was proven, meant that the Commission had, on account of that anticompetitive object, failed to assess whether that conduct had produced the qualified effects required in order to establish its jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services.

75On the one hand, by essentially replying that the qualified effects test, which serves to establish 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 observed 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 under public international law, 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.

76On 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 134 to 171 of the judgment under appeal concerning the coordination in relation to inbound freight services taken in isolation, and in paragraphs 172 to 182 concerning the single and continuous infringement taken as a whole.

77In those circumstances, Air France misreads the judgment under appeal when it submits that the General Court held that it was possible, in order to establish, 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 can be classified as a restriction of competition by object. The line of argument set out in paragraph 63 of the present judgment must, accordingly, be rejected as unfounded.

78In the second place, it should be recalled that the qualified effects test, like the test based on the place in which anticompetitive practices are implemented, pursues the objective of preventing conduct which, while not adopted within the European Union – or, as the case may be, within the EEA – has anticompetitive effects liable to have an impact on the EU or EEA markets. The qualified effects test thus allows the application of EU or EEA competition law to be justified under public international law when it is foreseeable that the conduct in question will have an immediate and substantial effect in the European Union or in the EEA. In that regard, it is sufficient to take account of the probable effects of conduct on competition in order for the requirement of foreseeability to be satisfied. Furthermore, it is sufficient that the conduct in question be ‘liable’ to have an immediate effect in the European Union or in the EEA in order for the requirement of immediacy to be satisfied (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 45, 49, 51 and 52).

79Thus, as Air France maintains, in order to establish that the qualified effects test has been satisfied, the Commission must establish that the practices concerned have foreseeable, immediate and substantial effects in the European Union or, as in the present case, in the EEA, which criteria the General Court recalled, moreover, in paragraphs 113 and 134 of the judgment under appeal. However, contrary to what Air France claims by way of its line of argument set out in paragraph 64 of the present judgment, the General Court did not, in paragraphs 132, 133 and 147 of the judgment under appeal, depart from that test by considering that only indirect and uncertain effects were sufficient to characterise the existence of qualified effects, for the purposes of the case-law recalled in the preceding paragraph of the present judgment.

80First of all, as is clear from an overall reading of paragraphs 108, 109, 112 and 125 to 134 of the judgment under appeal, paragraphs 132 and 133 are part of the General Court’s examination relating to the assessment of the relevance of the first ground on which the Commission relied in recital 1045 of the decision at issue as the basis of its finding that the qualified effects test had been satisfied in the case at hand. That ground consisted in ‘the increased costs of air transport to the EEA, and consequently 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 on the prices of imported goods’, and which Air France 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.

81Since paragraphs 132 and 133 of the judgment under appeal do not relate to the question whether the effect on the prices of imported goods had the required foreseeability, substantiality and immediacy, it follows that the line of argument set out in paragraph 64 of the present judgment, in so far as it refers to paragraphs 132 and 133 of the judgment under appeal, is based on a misreading of the judgment under appeal. It must therefore be rejected as unfounded.

82Next, in so far as that line of argument refers to paragraph 147 of the judgment under appeal, it should be noted that although, admittedly, that paragraph appears in the part of that judgment relating to the foreseeability of the effect on the prices of imported goods, the General Court merely stated in that judgment that, ‘in those circumstances’, it was reasonably foreseeable for the incriminated carriers that the freight forwarders would pass on such additional costs to shippers by means of an increase in the price of freight forwarding services. It is clear, therefore, that, in that paragraph, the General Court did not state that only indirect and uncertain effects, or even ‘remote or purely hypothetical’ effects, would suffice to characterise the existence of qualified effects, within the meaning of the case-law of the Court of Justice. Since that line of argument is therefore also based on a misreading of the judgment under appeal, it must be rejected as unfounded.

83Finally, in so far as that line of argument amounts, in essence, to challenging the General Court’s assessment of the foreseeability of the effect on the prices of imported goods, it is not distinguishable from that set out in paragraph 66 of the present judgment, which is examined in paragraphs 95 to 99 of the present judgment.

84It follows from the foregoing that, subject to the proviso identified in the preceding paragraph, the line of argument set out in paragraph 64 of the present judgment must be rejected as unfounded.

85In the third place, it should be noted, first of all, that it is apparent from the case-law recalled in paragraph 78 of the present judgment that the condition relating to the ‘probability’ of qualified effects, to which Air France refers, is not distinguishable from that relating to the foreseeability of those effects, since, in accordance with that case-law, it suffices to take account of the probable effects of conduct on competition in order to satisfy the condition relating to the requirement of foreseeability. As a consequence, Air France cannot meaningfully criticise the General Court, as it does in paragraph 65 of the present judgment, for having failed to demonstrate and ascertain whether the effect on the prices of imported goods was probable when, in paragraphs 135 to 152 of the judgment under appeal, the General Court examined the foreseeability of that effect.

86Next, in so far as, by the line of argument set out in paragraph 65, Air France claims that the General Court neither demonstrated nor ascertained the foreseeability of the effect on the prices of imported goods, it is sufficient to note that that claim is contradicted by paragraphs 135 to 152 of the judgment under appeal, which set out precisely the General Court’s analysis relating to the assessment of the foreseeability of that effect, which Air France claims does not exist.

87Lastly, in paragraphs 137 to 139 of the judgment under appeal, the General Court found that the fuel surcharge, the security surcharge and the refusal to pay commission were to be construed, as is clear from recitals 846, 909, 1199 and 1208 of the decision at issue, collusive horizontal-pricing behaviour, experience of which shows, according to the case-law of the Court of Justice, that it leads inter alia to price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers. The General Court therefore found that it was foreseeable for the incriminated carriers that the horizontal fixing of the fuel surcharge and the security surcharge would lead to an increase in the level of those surcharges, and that the refusal to pay commission was such as to reinforce such an increase. The General Court effectively found that such a refusal consisted in a concerted refusal to grant freight forwarders rebates on surcharges, by which the incriminated carriers ‘ensured’ that pricing uncertainty, which could have arisen from competition on commission payments, remained suppressed and thus aimed to eliminate competition in respect of surcharges, as the Commission had observed in recitals 874 and 879 of the decision at issue.

88The General Court added, in paragraph 140 of the judgment under appeal, that the price of freight services consists, as is clear from recital 17 of that decision, of rates and surcharges, including the fuel surcharge and the security surcharge and that, unless it were considered that an increase in the fuel surcharge and the security surcharge would, as a result of a sufficiently probable waterbed effect, be offset by a corresponding reduction in rates and other surcharges, such an increase was, in principle, liable to lead to an increase in the total price of inbound freight services.

89The General Court also examined, in paragraphs 144 to 147 of the judgment under appeal, whether it was foreseeable for the incriminated carriers that the freight forwarders would pass that increase on to their own customers, namely shippers, by an increase in the price of freight forwarding services, which the General Court found to be reasonably foreseeable for the incriminated carriers. In that regard, it noted that the price of freight services was, for freight forwarders and as was apparent, in essence, from recitals 14 and 70 of that decision, a variable cost, the increase in which, in principle, has the effect of increasing the marginal cost in relation to which the freight forwarders determine their own prices. In paragraphs 148 to 150 of that judgment, the General Court also found that, as was apparent from recitals 70 and 1031 of that decision, the cost of goods the integrated transportation of which is generally organised by freight forwarders on behalf of shippers incorporates the price of freight-forwarding services, and, in particular, the cost of freight services, with the result that it was also foreseeable for the incriminated carriers that the single and continuous infringement would, in so far as it related to inbound routes, have the effect of increasing the price of goods imported into the EEA.

90In the light of the case-law recalled in paragraph 78 of the present judgment, according to which it suffices to take account of the probable effects of conduct on competition in order to satisfy the condition relating to the requirement of foreseeability, it must be held that, in those paragraphs of the judgment under appeal, the General Court did indeed carry out the necessary verification and that it did not err in law in finding that the Commission had thus established to the requisite standard that the effect on the prices of imported goods had the required foreseeability.

91As the Advocate General also observes in point 73 of his Opinion, any loss the incurrence of which the cartel members ought reasonably to take into consideration on the basis of practical experience is foreseeable, unlike loss which results from an entirely extraordinary train of events. As has already been observed in paragraph 87 of the present judgment and as the General Court also recalled in paragraph 137 of the judgment under appeal, it is established that collusive behaviour, such as that leading to horizontal price-fixing by cartels, leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (see, to that effect, judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 51).

92Accordingly, contrary to what Air France claims, in order to establish the foreseeability of the effect on the prices of imported goods, it was not necessary for the General Court to verify specifically the effect of the surcharges on the total sale price of freight services, or whether and to what extent the freight forwarders had actually passed that price increase on to the shippers, or whether and to what extent the shippers had actually passed that increase in transport costs on to consumers.

93Furthermore, the General Court did indeed take account of the fact that the surcharges represented, on average, 18% of the total price invoiced to freight forwarders by Air France in the years 2004-2005, that factor being referred to in paragraph 160 of the judgment under appeal, in the context of the General Court’s analysis of the substantiality of the effect on the prices of imported goods.

94The line of argument set out in paragraph 65 of the present judgment must therefore be rejected as unfounded.

95In the fourth place, it should be recalled that, according to settled case-law, 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).

96That 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.

97In the present case, as has already been stated in paragraph 88 of the present judgment, the General Court found, in paragraph 140 of the judgment under appeal, that unless it were considered that an increase in the fuel surcharge and the security surcharge would, as a result of a sufficiently probable waterbed effect, be offset by a corresponding reduction in rates and other surcharges, such an increase was, in principle, liable to lead to an increase in the total price of inbound freight services. Admittedly, the General Court added that Air France had failed to demonstrate that a waterbed effect was so probable as to render the effect on the prices of imported goods unforeseeable. However, as is clear from paragraph 87 of the present judgment, that finding is preceded, in paragraphs 137 to 139 and in the first sentence of paragraph 140 of the judgment under appeal, by an examination at the conclusion of which the General Court held that it was foreseeable for the incriminated carriers that the horizontal fixing of the fuel surcharge and the security surcharge, together with the refusal to pay commission, would lead to an increase in the total price of inbound freight services.

98Thus it was only once it had found that, in the decision at issue, the Commission had established to the requisite standard that such an increase was foreseeable that the General Court examined whether Air France had adduced evidence to rebut that finding. Since Air France had alleged, in that regard, the existence of a ‘waterbed effect’, the General Court found, in paragraph 141 of the judgment under appeal, that the economic report on which it relied in order to demonstrate that effect was in fact limited to showing a correlation between the actual evolution of the level of the security surcharge charged by Air France and that of the kerosene price, without, however, establishing that it was sufficiently likely that an increase in the fuel surcharge would be offset by a corresponding reduction in rates and other surcharges to the point of rendering the effect on the prices of imported goods unforeseeable.

99Having regard to the case-law recalled in paragraph 95 of the present judgment, the General Court was able to find, without unlawfully reversing the burden of proof, first, that, given that it had stated, in essence, in paragraphs 137 to 139 and the first sentence of paragraph 140 of the judgment under appeal, that the Commission had established to the requisite standard, in the decision at issue, the foreseeability of the increase in the total price of inbound freight services on account of the fuel surcharge and the security surcharge, it was for Air France to adduce evidence to the contrary and, second, that, in the absence of such satisfactory evidence to the contrary, Air France had not succeeded in rebutting the finding which the General Court had previously made.

100Furthermore, in so far as Air France claims that, in so doing, the General Court engaged in circular reasoning and required it to adduce impossible evidence, since the Commission had refused to take account of that effect in the decision at issue by relying on the classification of the practices at issue as a restriction of competition by object, it is sufficient to note that that argument is based on the same premiss as the line of argument set out in paragraph 63 of the present judgment, which, as has already been demonstrated in paragraphs 70 to 77 of the present judgment, is incorrect.

101The line of argument set out in paragraph 66 of the present judgment must, accordingly, also be rejected as unfounded.

102In the fifth place, as regards the line of argument set out in paragraph 68 of the present judgment, which it is appropriate to examine in the penultimate place, it should be recalled that it 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).

103The General Court therefore cannot fill, by means of its own reasoning, a gap in the reasoning in that act 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).

104However, where the General Court merely responds to the line of argument raised before it and explains the reasoning of the act at issue, 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).

105In the present case, as is clear from paragraphs 109 and 125 of the judgment under appeal, the first sentence of recital 1045 of the decision at issue contained, albeit in succinct form, 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 130, 137 to 140, 142, 145, 148, 156 to 158, 161 and 162 of the judgment under appeal, enabled the General Court to ascertain that the Commission had indeed established the existence of such effects. It is also clear from paragraphs 115 to 171 of the judgment under appeal that, in those paragraphs, the General Court confined itself to responding to the line of argument put forward by Air France and to elucidating the statement of reasons for the decision at issue, in particular by drawing certain guidance from the factors contained in that decision. Accordingly, in the light of the case-law recalled in the preceding paragraph of the present judgment, the substitution of grounds alleged in respect of those paragraphs 115 to 171 has not been established.

106Furthermore, in those circumstances, nor can it be held that, in so ruling, the General Court remedied the failure to state reasons in the decision at issue with regard to the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services, in breach of the case-law according to which a failure to state reasons cannot be remedied by the fact that the person concerned learns the reasons for the decision during the proceedings before the Court (judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 463 and the case-law cited). As is clear from the preceding paragraph of the present judgment, that failure to state reasons for the decision at issue – which was, moreover, not even alleged before the General Court – has not been established.

107In addition, in so far as, by that line of argument, Air France refers to the grounds set out in paragraphs 172 to 182 of the judgment under appeal, it must be held that those grounds appear in the part of the judgment under appeal which relates to the analysis of the third ground on which the Commission had relied in the decision at issue to establish its jurisdiction over the conduct at issue, as identified in paragraph 110 of the judgment under appeal, namely the ground relating to the effects of the single and continuous infringement taken as a whole. That part of the judgment under appeal is specifically referred to in Air France’s line of argument set out in paragraph 67 of the present judgment. The claim of substitution of grounds, in so far as it relates to paragraphs 172 to 182 of the judgment under appeal, will therefore be examined therewith, in paragraphs 109 and 110 of the present judgment.

108Consequently, subject to that proviso, the line of argument set out in paragraph 68 of the present judgment must be rejected as unfounded.

109In the sixth and last place, as regards the line of argument set out in paragraph 67 of the present judgment, and that set out in paragraph 68 thereof in so far as it relates to paragraphs 172 to 182 of the judgment under appeal, it should be noted that Air France, by its third plea in law before the General Court, confined itself to disputing the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to the conduct at issue in so far as it related to inbound freight services.

110In that regard, the General Court found, in paragraph 171 of the judgment under appeal, that the Commission was entitled to find that the qualified effects test was satisfied as regards the coordination in relation to inbound freight services taken in isolation, with the result that the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to the conduct at issue – in so far as that jurisdiction was disputed – was established. It follows that it was for the sake of completeness that, in paragraphs 172 to 182 of the judgment under appeal, the General Court examined whether the Commission, in order to establish its jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to the conduct at issue, was also entitled to find, in recital 1046 of the decision at issue, that the qualified effects test was satisfied in the light of the effects of the single and continuous infringement taken as a whole.

111Moreover, as is clear from the examination of the second part of the first ground of appeal, the General Court neither erred in law nor substituted its own grounds for those of the Commission in finding to that effect in paragraph 171 of the judgment under appeal.

112In those circumstances, it must be held that that line of argument is aimed at grounds of the judgment under appeal included purely for the sake of completeness. According to settled case-law, complaints directed against grounds included in a decision of the General Court purely for the sake of completeness cannot lead to the decision being set aside and are therefore ineffective (judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 537, and of 4 October 2024, thyssenkrupp v Commission, C‑581/22 P, EU:C:2024:821, paragraph 263 and the case-law cited).

113That line of argument must therefore be rejected as ineffective.

114It follows from all of the foregoing that the second part of the first ground of appeal must be rejected as unfounded in part and ineffective in part, as must, consequently, the first ground of appeal in its entirety.

The second ground of appeal, relating to the taking into account of the regulatory regimes

Arguments of the parties

115Air France submits that the General Court, in taking the regulatory regimes into account, infringed the principle of equal treatment and its obligation to state reasons.

116It is argued that, in paragraph 463 of the judgment under appeal, the General Court endorsed the analysis carried out by the Commission in the decision at issue, according to which the regulatory regimes in force in several third countries, including the Kingdom of Thailand, had not compelled but merely encouraged carriers to agree on the introduction of the fuel surcharge, thus rejecting its line of argument that those regimes required carriers to enter into cartels in that regard. However, the General Court reached the opposite conclusion as regards the same Thai regulatory regime in the judgment of 30 March 2022, SAS Cargo Group and Others v Commission (T‑324/17, EU:T:2022:175), by ruling, in paragraph 562 of that judgment, that the Thai authorities had created, from 20 July 2005, a legal framework that eliminated any possibility of competitive behaviour between carriers as regards the determination of the amount of the fuel surcharge applicable to flights departing from that third country. Consequently, in paragraph 944 of that judgment, it reduced the percentage applied for gravity, in respect of the applicants in that case, from 16% to 15.7%, thereby reducing the fine imposed on them. When exercising its unlimited jurisdiction, the General Court is required to observe the principle of equal treatment.

117In Air France’s submission, it is common ground in the present case that Air France relied on the binding nature of the regulatory regime applicable in Thailand in its application before the General Court in order to obtain a reduction in its fine. In addition, in paragraph 455 of the judgment under appeal, the General Court acknowledged that the clauses of the air services agreement concluded between the French Republic and the Kingdom of Thailand provided, in essence, that rates had to be discussed beforehand between designated carriers and that, in the event of an agreement, there had to be approval by the competent authorities of both parties to that agreement. It follows from paragraph 562 of the judgment of 30 March 2022, SAS Cargo Group and Others v Commission (T‑324/17, EU:T:2022:175), that the elimination of the possibility of competing with each other concerned all carriers operating on routes departing from Thailand, including Air France. The General Court could not therefore lawfully reserve the benefit of a reduction of the fine to SAS Cargo Group and Others and should have drawn the same conclusions in respect of all of those carriers.

118Furthermore, by failing to set out the reasons why SAS Cargo Group and Others were the only ones eligible for a reduction under the Thai regulatory regime, which applied to all carriers, the General Court infringed its obligation to state reasons. If it considered that it had insufficient information to be in a position to rule on the binding nature of that regime with regard to all the other carriers, it should, in accordance with Articles 88 and 89 of the Rules of Procedure of the General Court, have adopted measures of organisation of procedure and asked the other airlines about that regulatory regime and about the letter of 20 July 2005 referred to in the judgment of 30 March 2022, SAS Cargo Group and Others v Commission (T‑324/17, EU:T:2022:175). By failing to adopt such measures, the General Court also infringed Air France’s rights of defence.

119The Commission takes the view that that plea is unfounded.

Findings of the Court

120As a preliminary point, it should be noted that although, by the heading of its second ground of appeal, Air France suggests that that ground of appeal concerns the General Court’s consideration of the regulatory regimes of all third countries to which paragraph 463 of the judgment under appeal refers, namely those referred to in recitals 972 to 1019 of the decision at issue, the line of argument which it puts forward in support of that ground of appeal relates only to the Thai regulatory regime. Accordingly, by the present ground of appeal, the General Court’s finding in paragraph 463 is called into question only in so far as it relates to that regulatory regime.

121That said, it should be noted that, in that paragraph 463, the General Court found that, contrary to what Air France argued, the elements taken from the regulatory provisions of the third countries on which it relied did not contradict the findings made in the decision at issue, according to which the tariff agreements were not made mandatory by the regulatory framework, but merely encouraged by it, with the result that that framework did not entail the non-application of Article 101 TFEU, but justified a 15% reduction of the fine in accordance with point 29 of the 2006 Guidelines.

122It must nevertheless be stated that that paragraph 463 of the judgment under appeal is the concluding point of the analysis carried out by the General Court in paragraphs 455 to 462 of that judgment, in which it stated, ‘in the second place and in any event’, that Air France’s line of argument was based on an incorrect analysis of the air services agreements in question.

123The General Court in fact stated at the outset, ‘in the first place’, in paragraph 453 of the judgment under appeal, that the air services agreements had either encouraged the conduct at issue on EEA-third country routes, in which case a reduction in the amount of the fine could be justified under point 29 of the 2006 Guidelines, or had required it, in which case no infringement of the competition rules could have been found or any penalty imposed in respect of that conduct.

124In the light of those factors, which Air France does not dispute in the present appeal, the General Court found, in paragraph 454 of that judgment, that, since Air France merely claimed that numerous regulatory regimes required coordination, Air France’s line of argument, which sought to establish that the general reduction granted on account of mitigating circumstances was insufficient, had to be rejected as ineffective given that, even if it were well founded, it would vitiate by an error not the application of point 29 of the 2006 Guidelines, referred to in the second part of the eighth plea raised before the General Court, relating to the inadequacy of the general reduction granted on account of mitigating circumstances, examined in those paragraphs of the judgment under appeal, but the finding of an infringement, which was not referred to.

125It follows that, in so far as Air France criticises as such paragraph 463 of the judgment under appeal and, in essence, paragraphs 455 to 462 of that judgment, which constitute the essential basis thereof, it must be held that the considerations set out in those paragraphs are included for the sake of completeness since the General Court had, in paragraph 454 of the judgment under appeal, already set out to the requisite standard the reasons why that second part could not be upheld, without that being called into question in the present appeal. In accordance with the case-law already recalled in paragraph 112 of the present judgment, complaints directed against grounds included in a decision of the General Court purely for the sake of completeness cannot lead to the decision being set aside and are therefore ineffective.

126Furthermore, in so far as, by the present ground of appeal, Air France claims that the General Court infringed the principle of equal treatment by failing to draw, in respect of Air France, the same conclusions from the existence of the Thai regulatory regime as those which it drew in the judgment of 30 March 2022, SAS Cargo Group and Others v Commission (T‑324/17, EU:T:2022:175), it should be noted that it is apparent from that judgment that, in the case which gave rise thereto, by way of the second complaint in the sixth part of their third plea in law before the General Court, the applicants had challenged the Commission’s assessment of the State coercion to which those applicants claimed to have been subject in several third countries, including the Kingdom of Thailand, by arguing that the Commission had therefore wrongly applied Article 101 TFEU and Article 53 of the EEA Agreement to conduct which, not being autonomous conduct on their part, fell outside the scope of those provisions. Following the examination of that complaint, which was supported by an effective line of argument, the General Court annulled the decision at issue in part.

127The reduction of the fine imposed on the applicants in the case which gave rise to the judgment of 30 March 2022, SAS Cargo Group and Others v Commission (T‑324/17, EU:T:2022:175), in connection with the regulatory regimes, was thus the result of the partial annulment of the finding of infringement on their part, namely in so far as that finding concerned the determination of the fuel surcharge for flights departing from Thailand between 20 July 2005 and 14 February 2006.

128However, there was no equivalent, in Air France’s action before the General Court, to the complaint raised by SAS Cargo Group and Others which led to the General Court’s partial annulment of the finding of infringement against SAS Cargo Group and Others. By the second part of its eighth plea in law before the General Court, the substance of which the General Court set out in paragraphs 447 and 448 of the judgment under appeal, which are not disputed in the present appeal, Air France did not claim that the finding of infringement on its part should be annulled as regards routes from Thailand. As the Court of Justice has held on numerous occasions, a plea going to the substantive legality of a decision, alleging infringement of the Treaties or of any rule of law relating to their application, within the meaning of Article 263 TFEU, can be examined by the Courts of the European Union only if it is raised by the applicant (judgments of 10 December 2013, Commission v Ireland and Others, C‑272/12 P, EU:C:2013:812, paragraph 28 and the case-law cited, and of 4 October 2024, thyssenkrupp v Commission, C‑581/22 P, EU:C:2024:821, paragraph 107). Accordingly, it is to no avail that Air France claims that the General Court erred in law by not extending to the present case the consequences, in terms of the determination of the amount of the fine, of the annulment of the finding of infringement in respect of routes from Thailand made by the judgment of 30 March 2022, SAS Cargo Group and Others v Commission (T‑324/17, EU:T:2022:175).

129Moreover, admittedly, the exercise of unlimited jurisdiction cannot result in discrimination between undertakings which have participated in an infringement of the competition rules (judgments of 16 November 2000, Sarrió v Commission, C‑291/98 P, EU:C:2000:631, paragraph 97, and of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 138).

130However, unlike the present case and as has already been noted in paragraph 126 of the present judgment, the applicants in the case which gave rise to the judgment of 30 March 2022, SAS Cargo Group and Others v Commission (T‑324/17, EU:T:2022:175), had obtained the partial annulment of the finding of infringement on their part, after they had succeeded in establishing the merits of the second complaint in the sixth part of their third plea before the General Court in so far as it related to the Thai regulatory regime.

131Thus, Air France and those applicants were in different situations in the light of the factors examined by the General Court when it exercised its unlimited jurisdiction. It was therefore without infringing the principle of equal treatment that, in paragraph 495 of the judgment under appeal, the General Court rejected Air France’s claim that the general reduction granted on account of mitigating circumstances was insufficient.

132It follows from the foregoing that the claims of infringement by the General Court of, first, its obligation to state reasons and, second, the rights of the defence, as set out in paragraph 118 of the present judgment, are also unfounded, since they are based on the incorrect premiss that the General Court should have extended, to the benefit of Air France, the consequences which it had drawn from the partial annulment of the decision at issue in another case, even though there was no equivalent in Air France’s action before the General Court to the complaint which gave rise to that partial annulment.

133In the light of the foregoing considerations, the second ground of appeal must be rejected as inadmissible in part and unfounded in part.

The third ground of appeal, relating to the duration of Air France’s participation in the single and continuous infringement

134The third plea in law comprises two parts. By the first part, Air France submits that the General Court erred in law in its assessment of Air France’s participation in the infringement between 4 February 2000 and 17 January 2001. By the second part, it submits that the General Court erred in law in its assessment of Air France’s participation in the infringement between 19 October 2005 and 14 February 2006.

The first part of the third ground of appeal, concerning the period from 4 February 2000 until 17 January 2001

–Arguments of the parties

135Air France submits that the General Court unlawfully reversed the burden of proof and infringed the principle of the presumption of innocence by finding that Air France participated in the infringement between 4 February 2000 and 17 January 2001.

136It is argued that, in paragraph 421 of the judgment under appeal, the General Court found that the Commission did not find any contact involving Air France with regard to that period and, in paragraph 422 of that judgment, the General Court found that the duration thereof was sufficiently long to make it necessary to ascertain whether Air France’s participation in the infringement was interrupted during that period. The General Court thus acknowledged, in Air France’s submission, that there was objective evidence that Air France did not participate in the meetings that were held during that period, which demonstrates that Air France did not participate in the cartel from 4 February 2000 until 17 January 2001. While other companies colluded during the summer of 2000 with a view to increasing the fuel surcharge, Air France, which had, however, introduced such a surcharge at the beginning of 2000, did not participate in those contacts. That is not called into question by the General Court; Air France refers in that regard to paragraphs 427 and 428 of the judgment under appeal.

137Air France submits that the General Court nevertheless held Air France liable for the infringement during that period, without relying on indicia demonstrating that Air France participated in the infringement throughout that period. In so doing, the General Court failed correctly to draw the consequences from its own findings of fact and unlawfully reversed the burden of proof. Since several contacts during the summer of 2000 took place in the absence of Air France, the Commission should have adduced objective and consistent indicia showing that Air France’s participation had not been suspended during the period when it did not attend the anticompetitive meetings. However, in paragraph 430 of the judgment under appeal, the General Court held that it was for Air France to demonstrate its lack of involvement, by criticising it for not having publicly distanced itself from the cartel and failed to adduce other evidence demonstrating that it did not participate in the infringement, even though no evidence demonstrating Air France’s involvement during that period had been adduced.

138By holding Air France liable for the infringement between 4 February 2000 and 17 January 2001 without evidence of its participation and even though there was an objective indication that Air France had resumed competitive behaviour, the General Court also infringed the presumption of innocence in Air France’s submission.

139The Commission contends that, by that part, Air France seeks to obtain a fresh assessment of the facts and that it must therefore be rejected.

–Findings of the Court

140It is settled case-law that, in most cases, the existence of an anticompetitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 57, and of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 110 and the case-law cited).

141Such coincidences and indicia, when evaluated overall, may provide information not just about the mere existence of anticompetitive practices or agreements, but also about the duration of continuous anti‑competitive practices or the period of application of anti‑competitive agreements (judgments of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C‑105/04 P, EU:C:2006:592, paragraph 95, and of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 111 and the case-law cited).

142As regards the lack of evidence of an agreement during certain specific periods or, at least, the lack of evidence of its implementation by an undertaking during a given period, the fact that such evidence has not been produced in relation to certain specific periods does not preclude the infringement from being regarded as established during a longer overall period than those periods, provided that such a finding is supported by objective and consistent indicia. In the context of an infringement extending over a number of years, the fact that the agreement is shown to have applied during different periods, which may be separated by longer or shorter periods, has no effect on the existence of the agreement, provided that the various actions which form part of the infringement pursue a single purpose and fall within the framework of a single and continuous infringement (judgments of 21 September 2006, Technische Unie v Commission, C‑113/04 P, EU:C:2006:593, paragraph 169, and of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 112 and the case-law cited).

143As regards, in particular, an infringement extending over a number of years, the fact that direct evidence of an undertaking’s participation in that infringement during a specified period has not been produced does not preclude that participation from being regarded as established also during that period, provided that that finding is based on objective and consistent indicia (judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 27 and the case-law cited).

144Thus, the Commission may assume that the infringement – or the participation of an undertaking in the infringement – has not been interrupted, even if it has no evidence of the infringement in relation to certain specific periods, provided that the various actions which form part of the infringement pursue a single purpose and are capable of falling within the framework of a single and continuous infringement; and where the undertaking concerned has not relied on indicia or evidence establishing that, on the contrary, the infringement, or its participation in it, has not been pursued during those periods (see judgment of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 114).

145In that context, the absence of public distancing forms a factual situation on which the Commission can rely in order to prove that an undertaking’s anticompetitive conduct has continued. However, in a case where, over the course of a significant period of time, several collusive meetings have taken place without the participation of the representatives of the undertaking at issue, the Commission may not merely establish the absence of public distancing, but must also base its findings on other evidence (see, to that effect, judgments of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 28, and of 28 November 2019, LS Cable & System v Commission, C‑596/18 P, EU:C:2019:1025, paragraph 33).

146In the present case, it is true, as Air France submits, that in paragraph 421 of the judgment under appeal, the General Court observed that, in respect of the period from 4 February 2000 until 17 January 2001, the Commission had not found any contact involving Air France and, in paragraph 422 of that judgment, it held that, in the circumstances of the case, such a duration was sufficiently long to make it necessary to ascertain whether Air France’s participation in the single and continuous infringement was interrupted during that period. It is also true that, in accordance with the case-law recalled in the preceding paragraph of the present judgment, in circumstances where, as in the present case, during a significant period, several collusive meetings were held without the participation of the representatives of the undertaking concerned, the absence of public distancing is not sufficient to establish the participation of that undertaking in the infringement during that period.

147However, in the first place, it follows from the case-law set out in paragraphs 142 to 145 of the present judgment, recalled, in essence, by the General Court in paragraphs 424 and 425 of the judgment under appeal, that, as regards, inter alia, an infringement extending over a number of years, the fact that, during a significant period, several collusive meetings took place without the participation of the representatives of the company concerned is not sufficient to establish that that company did not participate in the cartel concerned during that period. Accordingly, Air France is wrong to submit that its lack of participation in the collusive meetings held during the period from 4 February 2000 to 17 January 2001 is in itself an objective indication demonstrating its lack of participation in the cartel during that period.

148In the second place, according to that case-law, such a lack of participation in collusive meetings during a significant period of time is, however, a circumstance requiring that the Commission adduce other objective and consistent evidence establishing that, despite that lack of participation in those meetings, the undertaking concerned continued to participate in the infringement. Moreover, in such a situation, the absence of public distancing is not sufficient to justify a finding of an uninterrupted participation of the undertaking concerned during that period. That is precisely what the General Court recalled in paragraph 425 of the judgment under appeal; it also stated, in paragraph 426 of that judgment, the objective and consistent evidence that could be relevant in that regard.

149However, it cannot be held that, in paragraph 430 of the judgment under appeal, the General Court, in breach of that case-law, unlawfully reversed the burden of proof, by merely criticising Air France for the fact that it did not publicly distance itself from the cartel and for failing to adduce evidence of its lack of participation in the cartel during that period, rather than verifying whether the Commission had adduced objective and consistent evidence establishing to the requisite standard that Air France had continued to participate in the single and continuous infringement during that period, despite its lack of participation in the collusive meetings.

150In that paragraph 430, the General Court admittedly observed that Air France had neither established nor claimed that it had publicly distanced itself from the single and continuous infringement between 4 February 2000 and 17 January 2001; nor did it maintain that, during that period, Air France had resumed fair and independent competitive behaviour on the market in question; and nor did it deny that the effects of coordination in relation to the fuel surcharge had continued during that period.

151However, as indicated by the words ‘in those circumstances’ preceding the General Court’s finding in paragraph 430 that the Commission was entitled, without erring, to hold Air France liable for the single and continuous infringement during that period, those findings of the General Court must be read in conjunction with the elements that it noted in paragraphs 427 to 429 and in the first sentence of paragraph 430 of the judgment under appeal. In those paragraphs, the General Court, in essence, examined whether the factors in the decision at issue relating, in particular, to the nature of the infringement at issue, the functioning of the cartel concerned during the period at issue and the incorporation of the behaviour concerned into a single and continuous infringement – the relevance of which is not disputed by Air France – constituted objective and consistent indicia capable of establishing to the requisite standard that Air France had continued to participate in the cartel during the period at issue, notwithstanding its lack of participation in the collusive meetings during that period.

152Having thus, at the end of its examination, essentially found, in the light of the case-law recalled in paragraphs 140 to 144 of the present judgment, that the Commission had discharged the burden of proof incumbent upon it by adducing objective and consistent indicia to establish to the requisite standard that Air France continued to participate in the cartel during the period from 4 February 2000 until 17 January 2001, the General Court was justified in finding that it was for Air France to rebut that evidence.

153In its appeal, Air France does not claim that, in paragraphs 427 to 429 and in the first sentence of paragraph 430 of the judgment under appeal, the General Court incorrectly classified the elements referred to therein as objective and consistent indicia, within the meaning of the case-law recalled in paragraphs 142 to 145 of the present judgment, or distorted the elements referred to by the General Court.

154Accordingly, it must be held that the approach followed by the General Court in paragraphs 427 to 430 of the judgment under appeal is consistent with the case-law relating to the rules and general principles relating to the burden of proof, referred to in paragraph 95 of the present judgment, which takes into consideration the principle of the presumption of innocence.

155It follows from the foregoing that the first part of the third ground of appeal must be rejected as unfounded.

The second part of the third ground of appeal, concerning the period from 19 October 2005 until 14 February 2006

–Arguments of the parties

156Air France submits that the General Court unlawfully reversed the burden of proof and infringed the presumption of innocence and the principle of equal treatment by finding that it participated in the infringement from 19 October 2005 until 14 February 2006 in relation to the security surcharge and the refusal to pay commission.

157It argues, first of all, that the General Court acknowledged, in paragraph 432 of the judgment under appeal, that there was no evidence of Air France’s involvement in the exchanges relating to the security surcharge from 19 October 2005 or in those concerning the refusal to pay commission from 14 October 2005. Thus, since it was not disputed that Air France had no longer participated in anticompetitive exchanges from October 2005 onwards, the General Court was required to demonstrate the existence of evidence capable of establishing that Air France had continued to take part in the infringement after 19 October 2005. Air France cannot be required to demonstrate that it was not involved in the infringement where the Commission has not first discharged its own burden of proof. The General Court therefore unlawfully reversed the burden of proof by stating, in paragraph 433 of the judgment under appeal, that Air France had failed to adduce sufficient evidence. In so doing, it also infringed the presumption of innocence.

158It is submitted, next, that in paragraph 433, the General Court stated that Air France had not drawn ‘any particular conclusions’ from its lack of participation in the infringement until 14 February 2006, which is incorrect. Air France requested that the General Court reduce the fine imposed by the decision at issue on the ground, inter alia, that the infringement had in fact ceased by 19 October 2005 at the latest. It refers in that regard to paragraph 171 of its application before the General Court.

159Lastly, by finding, in that paragraph 433, that Air France could be held liable for the infringement, in relation to the security surcharge and the refusal to pay commission, by referring to Air France’s participation in contacts concerning the fuel surcharge after 19 October 2005, the General Court again unlawfully reversed the burden of proof and infringed the principle of equal treatment, in Air France’s submission.

160It further submits, as regards the burden of proof, that it follows from paragraph 44 of the judgment of 6 December 2012, Commission v Verhuizingen Coppens (C‑441/11 P, EU:C:2012:778), that it is not possible to attribute to an undertaking all the components of a single and continuous infringement where it has not been shown that that undertaking intended to contribute to all the common objectives pursued by the other participants in the cartel, that it was aware of all the other offending conduct planned and that it was prepared to take the risk. Since the General Court did not demonstrate that the contacts concerning the fuel surcharge after 19 October 2005 established awareness of a broader overall plan concerning the security surcharge and the refusal to pay commission, the General Court had no basis to assume that Air France, by participating, after that date, in such contacts, continued to participate in the infringement relating to the security surcharge and the refusal to pay commission.

161Air France argues, as regards the principle of equal treatment, that the General Court infringed that principle by finding that the contacts on the fuel surcharge in which Air France had taken part demonstrated its participation in the other elements of the infringement. Among those contacts after 19 October 2005, the General Court referred to exchanges involving, inter alia, British Airways plc, referred to in recitals 563 and 574 of the decision at issue, even though it held, in the judgment of 30 March 2022, British Airways v Commission (T‑341/17, EU:T:2022:182), that that undertaking had not taken part in the component of the infringement relating to the refusal to pay commission. The General Court could not therefore, without infringing equal treatment, have used contacts involving British Airways in order to demonstrate Air France’s participation in the infringement relating to the refusal to pay commission, in the absence of documentary evidence. In any event, the evidence concerning the fuel surcharge did not enable the General Court to characterise Air France’s participation in the other parts of the infringement.

162The Commission contends, primarily, that the second part of the third ground of appeal is inadmissible on the ground that it alters the subject matter of the proceedings before the General Court. Before the General Court, Air France argued that it had not participated in the infringement beyond October 2005 and therefore, by its seventh plea in law before the General Court, sought annulment of the duration established for the whole of the single and continuous infringement. The Commission submits that, by the present part of the third ground of appeal, Air France limits its claim to the part of the infringement relating to the security surcharge and the refusal to pay commission, relying in order to do so on new pleas in law, relating to the possibility of treating the components of a single and continuous infringement differently, which it neither raised nor discussed before the General Court. The Commission contends, in the alternative, that the second part of the third ground of appeal is unfounded.

–Findings of the Court

163With regard to the admissibility of that part of the third ground of appeal, it should be recalled that, in accordance with the second sentence of Article 170(1) of the Rules of Procedure of the Court of Justice, the subject matter of the proceedings before the General Court may not be changed in the appeal.

164Thus, the jurisdiction of the Court of Justice in an appeal is confined to a review of the findings of law on the pleas and arguments debated before the General Court. A party may not, 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 to do so would be to allow it 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 (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).

165That said, an appellant is entitled to lodge an appeal relying, before the Court of Justice, on grounds and arguments which arise from the judgment under appeal itself and seek to criticise, in law, its correctness (judgments of 29 November 2007, Stadtwerke Schwäbisch Hall and Others v Commission, C‑176/06 P, EU:C:2007:730, paragraph 17, 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 30 and the case-law cited).

166In the present case, it is apparent from the application before the General Court that, by its seventh plea in law, which is the subject of paragraphs 385 to 436 of the judgment under appeal, Air France alleged a miscalculation of the duration of the infringement, on the ground, as regards the period after 19 October 2005, that the contacts relating to the fuel surcharge could not be classified as anticompetitive and, as regards the security surcharge and the refusal to pay commission, that the Commission had failed to adduce any valid evidence of Air France’s participation in those components of the single and continuous infringement for the periods after 19 October 2005 and 14 October 2005 respectively, as the General Court stated, moreover, in paragraphs 385 to 387 of the judgment under appeal. It requested that, as a consequence, the duration of the infringement found against it be reduced, as well as, thereafter, the fine imposed on it. The General Court analysed that line of argument in paragraphs 431 to 434 of the judgment under appeal, which are, in essence, covered by the present part of the third ground of appeal.

167Neither in that plea nor in any other plea raised before the General Court did Air France claim that, in the event that one or other element of the single and continuous infringement could not be upheld against it, the others, or one of the others, could not be upheld either in the light of the case-law arising from paragraph 44 of the judgment of 6 December 2012, Commission v Verhuizingen Coppens (C‑441/11 P, EU:C:2012:778).

168However, it should be noted that, as regards the period after 19 October 2005, the General Court found, in paragraphs 431 and 432 of the judgment under appeal, that the Commission had several items of evidence which it could have validly raised against Air France, but that, as submitted by Air France, none of the evidence in the Commission’s possession concerning the security surcharge and the refusal to pay commission was dated later than 19 October 2005 and 14 October 2005 respectively.

169It was in those circumstances that, in paragraph 433 of the judgment under appeal, the General Court essentially ascertained whether, despite that lack of direct evidence, the Commission was still justified in inferring from the other elements in its possession that Air France’s participation in those components of the single and continuous infringement had not come to an end in October 2005 and that, at the end of its analysis, it found, in paragraph 434 of the judgment under appeal, that the Commission was justified in finding that it had sufficient evidence in so far as concerns the continuity of Air France’s participation in the cartel at issue from 20 October 2005 to 14 February 2006.

170In the light of the line of argument put forward by Air France before the General Court, it was not relevant for Air France to argue before the General Court that evidence of Air France’s participation in the component of the single and continuous infringement relating to the fuel surcharge beyond 19 October 2005, which it regarded as not established since the contacts concerned were not anticompetitive, could not be taken into account in order to establish the continuity of Air France’s participation, beyond that date, in the components of the single and continuous infringement relating to the security surcharge and the refusal to pay commission.

171In the light of those factors, it must be held that the question whether Air France’s liability for the single and continuous infringement, as regards the security surcharge and the refusal to pay commission, could be upheld by reference to Air France’s participation in contacts relating to the fuel surcharge after 19 October 2005 arose from the judgment under appeal itself and that the line of argument which Air France puts forward in that regard in the present appeal seeks to criticise, in law, the merits thereof. It follows that, in accordance with the case-law recalled in paragraph 165 of the present judgment, the present part of the third ground of appeal is admissible.

172As regards the possible merits thereof, it should be noted, first of all, that it is true that, in paragraph 433 of the judgment under appeal, the General Court stated that Air France did not claim that it had been unaware that the other incriminated carriers continued to coordinate on the security surcharge and the refusal to pay commission after 19 October 2005, that it had not adduced evidence that Air France had resumed fair and independent competitive behaviour in the relevant market or that it declared its intention to dissociate itself from the components of the single and continuous infringement relating to the security surcharge and the refusal to pay commission, and that it did not dispute the fact that the effects of those elements continued after that date.

173However, in paragraph 433, the General Court also noted, as a basis for those findings, that it was established that, after that date, Air France had continued to participate in the component of the single and continuous infringement relating to the fuel surcharge and that the implementation of the security surcharge and the refusal to pay commission required significantly less contact than the implementation of the fuel surcharge, given that, unlike the fuel surcharge, the security surcharge was not based on a changing index that required regular adjustments, which explained that, once introduced at the end of 2001, there were only occasional contacts between carriers concerning the implementation thereof, as was apparent from recital 579 of the decision at issue. In paragraph 433, the General Court also pointed out that the refusal to pay commission simply involved a refusal to grant discounts to freight forwarders and therefore did not require such regular adjustments as the fuel surcharge.

174Thus, it is in the light of all the circumstances referred to in paragraphs 172 and 173 of the present judgment that the General Court found, in paragraph 433 of the judgment under appeal, that the Commission was justified in inferring from the evidence in its possession that Air France’s involvement in the components of the single and continuous infringement relating to the security surcharge and the refusal to pay commission had not ended in the month of October 2005 and that, in paragraph 434 of the judgment under appeal, it inferred that the Commission had not erred in finding that it had sufficient evidence as regards the continuity of Air France’s participation in the cartel at issue from 20 October 2005 until the date on which, in the Commission’s view, that cartel had ended, namely 14 February 2006.

175In the light of the case-law recalled in paragraph 95 of the present judgment, it cannot be held that, in so ruling, the General Court infringed the rules relating to the burden of proof or the presumption of innocence.

176Consequently, the line of argument mentioned in paragraph 157 of the present judgment must be rejected as unfounded.

177Next, although it is true that the General Court stated, in the first sentence of paragraph 433 of the judgment under appeal, that Air France had not drawn, in its written pleadings, ‘any particular conclusions’ from the evidence referred to by the General Court in paragraphs 431 and 432 of the judgment under appeal, it must be stated that Air France does not raise, in its appeal, any complaint alleging distortion of its application before the General Court. In addition, in the remainder of paragraph 433, the General Court nevertheless examined Air France’s line of argument that Air France had ceased to participate in the components of the single and continuous infringement relating to the security surcharge and the refusal to pay commission after 14 October or 19 October 2005. Accordingly, any criticism directed against that first sentence must, in any event, be rejected as ineffective, in accordance with the case-law recalled in paragraph 112 of the present judgment, that statement by the General Court being included for the sake of completeness.

178Lastly, it is sufficient to note, first, that, in the present case, it is common ground that Air France participated directly in each of the three components of the single and continuous infringement identified in the decision at issue, that classification, as such, not being disputed by Air France, and that the sole point of dispute relates to the duration of Air France’s participation in that infringement. Air France cannot therefore derive any useful argument from the case-law, in particular that stemming from paragraphs 39 to 52 of the judgment of 6 December 2012, Commission v Verhuizingen Coppens (C‑441/11 P, EU:C:2012:778), relating to situations in which an undertaking has not participated in all the components of a single and continuous infringement, and the conclusions to be drawn, where appropriate, from such a finding as regards the possibility of annulling in whole or in part the Commission’s decision establishing that undertaking’s participation in a cartel in breach of Article 101 TFEU.

179By contrast, in a situation such as that of Air France, which concerns only the duration of an undertaking’s participation in a single and continuous infringement, the case-law recalled in paragraphs 140 to 145 of the present judgment is relevant. The coincidences and indicia which, taken together, may, in the absence of another plausible explanation, provide information about the existence of anticompetitive practices or agreements, may also provide information about the duration of continuous anticompetitive conduct and the period of application of an agreement concluded in breach of the competition rules (see, to that effect, judgment of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C‑105/04 P, EU:C:2006:592, paragraphs 94 and 95).

180In that context, it must, in particular, be pointed out that, in accordance with the case-law recalled in paragraphs 140 to 145, the fact that, in the context of an infringement extending over several years, direct evidence of the implementation of an agreement by an undertaking has not been adduced for certain specific periods does not preclude its participation in that agreement from nevertheless being established in respect of those periods, provided that such a finding is based on objective and consistent indicia.

181As already follows from the analysis of the first complaint in the second part of the third ground of appeal, in paragraphs 172 to 175 of the present judgment, the General Court did not unlawfully reverse the burden of proof in concluding that Air France’s liability for the infringement, as regards the security surcharge and the refusal to pay commission, could be upheld by reference to Air France’s participation in contacts relating to the fuel surcharge after 19 October 2005.

182The line of argument set out in paragraph 160 of the present judgment must therefore be rejected as unfounded.

183Second, 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.

184Accordingly, the General Court has exclusive jurisdiction to find and appraise the relevant facts and to evaluate the evidence. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, the appraisal of those facts does not therefore constitute a point of law which is subject as such to review by the Court of Justice (judgments of 28 May 1998, Deere v Commission, C‑7/95 P, EU:C:1998:256, paragraph 22, and of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 50 and the case-law cited).

185Under the guise of a claim of infringement of the principle of equal treatment, Air France seeks, in reality, to call into question the General Court’s assessment of the facts and evidence referred to in paragraph 433 of the judgment under appeal, without alleging that these have been distorted. The line of argument referred to in paragraph 161 of the present judgment is consequently inadmissible.

186It follows from the foregoing that the second part of the third ground of appeal must be rejected as ineffective in part, as inadmissible in part and as unfounded in part. Accordingly, the third ground of appeal must be rejected.

187As none of the grounds of appeal raised by Air France in support of its appeal has been upheld, the appeal must be dismissed in its entirety.

Costs

188Under 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.

189Under 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.

190Since the Commission has applied for costs to be awarded against Air France and the latter has been unsuccessful, it 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 Société Air France SA to pay the costs.