Contents
Judgment of the Court (Fifth Chamber)26 February 2026note(Appeal — Competition — Agreements, decisions and concerted practices — Market for airfreight — Decision of the European Commission finding an infringement of Article 101 TFEU, Article 53 of the Agreement on the European Economic Area and Article 8 of the Agreement between the European Community and Switzerland on Air Transport — Coordination of elements of the price of air freight services (fuel surcharge, security surcharge and refusal to pay commission on surcharges) — Single and continuous infringement — Failure to prove that a participant was aware of two elements of the infringement — Annulment in part or in full of the Commission’s decision — Territorial jurisdiction of the Commission — Finding of a worldwide cartel)In Case C‑375/22 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 9 June 2022,Latam Airlines Group SA, established in Santiago (Chile),Lan Cargo SA, established in Santiago,represented by O. Geiss, Rechtsanwalt, B. Hartnett, avocat, and W. Sparks, advocaat,the other party to the proceedings being:European Commission, represented by P. Caro de Sousa and A. Dawes, acting as Agents, and by G. Peretz KC,THE COURT (Fifth Chamber),composed of I. Jarukaitis (Rapporteur), President of the Fourth Chamber, acting as President of the Fifth Chamber, E. Regan and D. Gratsias, Judges,Advocate General: A. Rantos,Registrar: R. Stefanova-Kamisheva, Administrator,having regard to the written procedure and further to the hearing on 10 April 2024,after hearing the Opinion of the Advocate General at the sitting on 5 September 2024,gives the following
Judgment
1By their appeal, Latam Airlines Group SA (‘Latam Airlines’) and Lan Cargo SA seek to have set aside the judgment of the General Court of the European Union of 30 March 2022, Latam Airlines Group and Lan Cargo v Commission (T‑344/17, EU:T:2022:185; ‘the judgment under appeal’), by which the General Court dismissed in part their action seeking the 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 the appellants, and the cancellation of the fine imposed on them by that decision or a reduction of that fine.
Legal context
The EC-Switzerland Air Transport Agreement
2The Agreement between the European Community and the Swiss Confederation on Air Transport, signed in Luxembourg on 21 June 1999 and approved on behalf of the European Community by Decision 2002/309/EC, Euratom of the Council, and of the Commission as regards the Agreement on Scientific and Technological Cooperation, of 4 April 2002 on the conclusion of seven Agreements with the Swiss Confederation (OJ 2002 L 114, p. 1) (‘the EC-Switzerland Air Transport Agreement’), entered into force on 1 June 2002. Articles 8 and 9 of that agreement correspond, mutatis mutandis, to Articles 101 and 102 TFEU, respectively.
3Under Article 11 of that agreement:1. The provisions of Articles 8 and 9 shall be applied … by the Community institutions in accordance with Community legislation as set out in the Annex to this Agreement, taking into account the need for close cooperation between the Community institutions and the Swiss authorities.2. The Swiss authorities shall rule, in accordance with the provisions of Articles 8 and 9, on the admissibility of all agreements, decisions and concerted practices … concerning routes between Switzerland and third countries.’
4Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1) was made applicable under that agreement, with effect from 5 December 2007, by Decision No 1/2007 of the joint Community/Switzerland Air Transport Committee set up under the Agreement between the European Community and the Swiss Confederation on Air Transport of 5 December 2007 replacing the Annex to the Agreement between the European Community and the Swiss Confederation on Air Transport (OJ 2008 L 34, p. 19). On that date, Regulation No 1/2003 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 appeared in the annex to the EC-Switzerland Air Transport Agreement since the latter’s 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, first, 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 entered into force on 19 May 2005, and, second, 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 16(1) of Regulation No 1/2003 provides:‘When national courts rule on agreements, decisions or practices under Article [101] or Article [102 TFEU] which are already the subject of a [European] Commission decision, they cannot take decisions running counter to the decision adopted by the Commission. They must also avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated. To that effect, the national court may assess whether it is necessary to stay its proceedings. This obligation is without prejudice to the rights and obligations under Article [267 TFEU].’
9Article 23(2) and (3) of that regulation provides:2.The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:(a) they infringe Article [101] or [102 TFEU]; or…For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year.…3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’
10Article 32(c) of Regulation No 1/2003 provided that the latter was not to apply to ‘air transport between Community airports and third countries’.
11That provision was deleted, with effect from 1 May 2004, by Article 3 of Regulation No 411/2004.
Background to the dispute and the decision at issue
12The background to the dispute and the decision at issue, as set out in paragraphs 1 to 61 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.
13Latam Airlines is the parent company of Lan Cargo. The latter carries on activities in the market for airfreight services.
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 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 services, namely the introduction of ‘fuel’ and ‘security’ surcharges, and to the refusal 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 Latam Airlines and Lan Cargo, 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 Latam Airlines and Lan Cargo, 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 Latam Airlines and Lan Cargo.
20That 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, Latam Airlines Group and Lan Cargo v Commission (T‑40/11, EU:T:2015:986), the General Court annulled the initial decision in so far as it concerned Latam Airlines and Lan Cargo. 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 Latam Airlines and Lan Cargo.
25That decision states that the incriminated carriers coordinated their behaviour as regards the pricing of freight services worldwide, by reaching an agreement on the fuel surcharge, the security surcharge and the refusal to pay commission (‘the cartel at issue’), and had, in doing so, participated in a single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement.
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 charges for freight services referred to in the preceding paragraph. It stated that the common objective of that network of contacts was to coordinate competitors’ pricing behaviour or to reduce uncertainty with regard to their pricing policies. It then described the contacts concerning the fuel surcharge, the security surcharge and the refusal to pay commission, respectively, and assessed the factual evidence concerning (i) the cartel at issue as a whole and (ii) each of the addressees of that decision.
27In Section 5 of the decision at issue, headed ‘The application of the relevant competition rules’, the Commission applied Article 101 TFEU to the facts of the case, while stating that the references to that article were also to be read as being 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 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, 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 the latter decision did ‘not purport to find an infringement of Article 8 of the [EC-Switzerland Air Transport Agreement] concerning freight services on routes between Switzerland and third countries’.
30Second, in recitals 1036 to 1046 of the decision at issue, 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’).
31In particular, in recital 1045 of that decision, the Commission stated that anticompetitive practices with regard to freight services offered on inbound routes 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 also liable to have such effects on the provision of airfreight services by other carriers within the EEA, between the different hubs in the EEA used by carriers from third countries and the airports of destination of those shipments in the EEA, to which the third-country carrier did not fly.
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 Transport Agreement, comprises recitals 833 to 1052 of that decision. First, in recital 846 of that decision, the Commission found that the incriminated carriers had coordinated their conduct or influenced price setting, ‘ultimately amounting to price fixing with regard to’ the fuel surcharge, the security surcharge and the payment of commission on surcharges to freight forwarders. In recital 861 of that decision, the Commission found that the ‘overall scheme to coordinate the pricing behaviour for [freight] services’ revealed by its investigation demonstrated the existence of a ‘complex infringement consisting of various actions which [could] be either classified as an agreement or concerted practice, within which the competitors knowingly substituted practical cooperation between them for the risks of competition’.
34Second, in recital 869 of the decision at issue, the Commission considered that ‘the conduct in question constitute[d] a single and continuous infringement of Article [101 TFEU]’, stating, in recitals 870 to 902 of that 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 883 of that decision, that Lan Cargo was involved in one of the elements of the single infringement, namely the fuel surcharge, but that it was also aware of discussions between carriers on the security surcharge and the payment of commission on surcharges.
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 regulatory systems in place in seven third countries, which several of the incriminated carriers maintained had required them to collude on surcharges, thereby impeding the application of the relevant competition rules. The Commission considered that those carriers had failed to prove that they had acted under duress from those third countries.
37Fifth, in recitals 1024 to 1035 of the decision at issue, the Commission found that the single and continuous infringement was likely to have an appreciable effect on trade between Member States, between Contracting Parties of the EEA Agreement and between contracting parties to the EC-Switzerland Air Transport Agreement.
38Section 7 of the decision at issue, headed ‘Duration of the infringement’, contains recitals 1146 to 1169 of that decision. As is apparent from recital 1146 of that decision, the Commission found that the cartel at issue had started on 7 December 1999 and lasted until 14 February 2006. In recital 1146, it stated that that cartel had infringed:– Article 101 TFEU, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the European Union;– Article 101 TFEU, from 1 May 2004 to 14 February 2006, as regards air transport on EU-third country routes;– Article 53 of the EEA Agreement, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the EEA (‘intra-EEA routes’);– Article 53 of the EEA Agreement, from 19 May 2005 to 14 February 2006, as regards air transport on non-EU EEA-third country routes;– Article 8 of the EC-Switzerland Air Transport Agreement, from 1 June 2002 to 14 February 2006, as regards air transport on EU-Switzerland routes.
39In recital 1169 of that decision, the Commission found that the duration of the infringement to be taken into account in so far as concerned Lan Cargo ran from 25 February 2003 until 14 February 2006. It had previously stated, in recitals 1103 to 1108 of the decision at issue, that Latam Airlines, which held, during that period, 99.9% of Lan Cargo’s share capital, had to be presumed to exercise decisive influence over its subsidiary and, consequently, had to be held jointly and severally liable with Lan Cargo for the whole of that period.
40Articles 1, 3 and 4 of the operative part of that decision are worded as follows:‘Article 1By coordinating their pricing behaviour in the provision of airfreight services on a global basis with respect to the fuel surcharge, the security surcharge and the payment of commission payable on surcharges, the following undertakings have committed the following single and continuous infringement of Article 101 [TFEU], Article 53 of the [EEA Agreement] and Article 8 of the [EC-Switzerland Air Transport Agreement] as regards the following routes and for the following periods.(1) The following undertakings have infringed Article 101 [TFEU] and Article 53 of [the] EEA Agreement as regards [intra-EEA routes], for the following periods:…(i) [Latam Airlines] from 25 February 2003 until 14 February 2006;(j) [Lan Cargo] from 25 February 2003 until 14 February 2006;…(2) The following undertakings infringed Article 101 [TFEU] as regards [EU-third country routes], for the following periods:…(i) [Latam Airlines] from 1 May 2004 until 14 February 2006;(j) [Lan Cargo] from l 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:…(i) [Latam Airlines] from 19 May 2005 until 14 February 2006;(j) [Lan Cargo] 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:…(i) [Latam Airlines] from 25 February 2003 until 14 February 2006;(j) [Lan Cargo] from 25 February 2003 until 14 February 2006;…Article 3For the single and continuous infringement referred to in Article 1 …, the following fines are imposed:…(i) [Latam Airlines and Lan Cargo] jointly and severally: EUR 8220000;…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
41By application lodged at the Registry of the General Court on 31 May 2017, Latam Airlines and Lan Cargo brought an action seeking, principally, annulment of the decision at issue in so far as it concerned them and, in the alternative, the cancellation of the fine imposed on them or a reduction of that fine.
42They relied on seven pleas in law in support of their action for annulment.
43Of those pleas, the first alleged errors of law and of fact in the attribution to Latam Airlines and Lan Cargo of liability for the single and continuous infringement in its elements relating to the security surcharge and the refusal to pay commission. The second plea alleged errors of law and of fact in the finding that Latam Airlines and Lan Cargo participated in the infringement as regards the fuel surcharge element. The third plea alleged that the Commission lacked jurisdiction to find those carriers liable on intra-EEA routes, non-EU EEA-third country routes and EU-Switzerland routes. The fourth plea alleged that the Commission had made errors of fact and of law in finding the existence of a ‘worldwide cartel’. The latter plea comprised four parts, the third of which alleged that the Commission had exceeded its jurisdiction and had created ambiguity as to the geographic scope of the infringement. The sixth plea alleged infringement of the rights of the defence and failure to state adequate reasons, since Latam Airlines and Lan Cargo maintained, in essence, that the decision at issue was based on new factual and legal assessments on which they had not been able to be heard.
44By way of the judgment under appeal, the General Court upheld the first plea in law, upheld in part the second and third pleas and rejected the other pleas in law. Consequently, it annulled Article 1(1)(i) and (j), (3)(i) and (j) and (4)(i) and (j) of the decision at issue and Article 1(2)(i) and (j) of that decision, in so far as the latter provision found that the appellants had participated, first, in the elements of the single and continuous infringement relating to the security surcharge and the refusal to pay commission and, second, in the element of the single and continuous infringement relating to the fuel surcharge before 22 July 2005. It also annulled Article 3(i) of that decision, set the amount of the fine imposed jointly and severally on the appellants at EUR 2244000 and dismissed the action as to the remainder.
Forms of order sought by the parties to the appeal
45By their appeal, Latam Airlines and Lan Cargo claim that the Court of Justice should:– set aside the judgment under appeal in so far as it dismisses their action for annulment;– annul the decision at issue in so far as it concerns them or, in the alternative, annul it in part and reduce the amount of the fine; and– order the Commission to pay the costs.
46The Commission contends that the Court of Justice should dismiss the appeal and order Latam Airlines and Lan Cargo to pay the costs.
The appeal
47In support of their appeal, Latam Airlines and Lan Cargo put forward four grounds of appeal, alleging, first, an error of law in so far as the General Court annulled the decision at issue only in part, second, infringement of the rights of the defence by failing to state reasons for the discontinuance of proceedings against certain undertakings referred to in the statement of objections, third, an error of law as regards the Commission’s jurisdiction to find the existence of a ‘worldwide cartel’ and, fourth, errors of law as regards the determination of the geographic scope of the infringement.
The first ground of appeal, relating to the annulment of the decision at issue only in part
Arguments of the parties
48The first ground of appeal comprises, in essence, three parts.
49By the first part of that ground of appeal, Latam Airlines and Lan Cargo claim that the General Court infringed Article 101(1) TFEU by failing to annul the decision at issue in its entirety.
50The General Court, which annulled the decision at issue only in so far as it found that the appellants had participated in the elements of the single and continuous infringement relating to the security surcharge and the refusal to pay commission, while confirming that decision as regards their participation in that infringement in its element relating to the fuel surcharge as from 22 July 2005, failed to assess whether the aspects which it annulled were separable and whether the remaining element was such that it did not alter the substance of the single and continuous infringement.
51However, it follows from paragraph 38 of the judgment of 6 December 2012, Commission v Verhuizingen Coppens (C‑441/11 P, EU:C:2012:778), that partial annulment of an act of EU law is possible only if the elements which it is sought to have annulled can be severed from the remainder of the measure, which presupposes that such partial annulment does not have the effect of altering the substance of the act.
52In the present case, the elements relating to the security surcharge and the refusal to pay commission cannot be severed from the single and continuous infringement without altering its substance. The Commission itself found, in recital 863 of the decision at issue, that it would have been artificial to seek to split up the conduct at issue, characterised by a single purpose, by treating it as if it consisted of separate infringements. In the judgment of 4 July 2013, Commission v Aalberts Industries and Others (C‑287/11 P, EU:C:2013:445, paragraph 65), the Court of Justice took into consideration a ground of the decision at issue in that case, drafted in identical terms, in order to conclude that the infringement found was not divisible. In addition, the Commission did not state in the decision at issue that participation in the anticompetitive conduct relating to the fuel surcharge constituted, in itself, an infringement. Nor can it rely on recital 871 of that decision, according to which certain meetings, contacts or exchanges between competitors could be regarded as being infringements in themselves. Lastly, the elements relating to the security surcharge and the refusal to pay commission are not merely ancillary to the fuel surcharge element. In the latter regard, it is apparent from the judgment of 21 January 2016, Galp Energía España and Others v Commission (C‑603/13 P, EU:C:2016:38), that only a partial annulment of elements which are merely ancillary does not alter the substance of a single and continuous infringement. Latam Airlines and Lan Cargo add that the lack of severability is particularly apparent as regards the security surcharge, which, in their view, is an element equivalent to the fuel surcharge and not merely ancillary to it.
53By the second part of the first ground of appeal, alleging a failure to state reasons, Latam Airlines and Lan Cargo criticise the General Court for having adopted circular reasoning and for failing to state reasons for the assertion, in paragraph 632 of the judgment under appeal, that the appellants had not demonstrated that the Commission had erred in holding them liable for the single and continuous infringement, in its element relating to the fuel surcharge. The General Court thus failed to assess whether the elements of the single and continuous infringement relating to the security surcharge and the refusal to pay commission could be severed and whether the remaining element was such that it did not alter the substance of that infringement.
54By the third part of the present ground of appeal, Latam Airlines and Lan Cargo claim that, by the statement of reasons recalled in paragraph 53 of the present judgment, the General Court reversed the burden of proof by holding that the appellants had not demonstrated that they were not liable for the element relating to the fuel surcharge, whereas it is for the Commission to adduce evidence of infringements of Article 101 TFEU.
55The Commission contends that the first ground of appeal is unfounded.
Findings of the Court
–Preliminary observations
56It should be recalled that, by the judgment under appeal, the General Court upheld the first plea put forward before it by Latam Airlines and Lan Cargo, alleging errors of law in the finding that Lan Cargo participated in the elements of the single and continuous infringement relating to the security surcharge and the payment of commission. The General Court concluded, in paragraph 631 of the judgment under appeal, that it was necessary to annul Article 1(2) of the decision at issue in so far as it attributed liability to Latam Airlines and Lan Cargo for those two elements of the single and continuous infringement. It added, however, in paragraph 632 of that judgment that, contrary to what Latam Airlines and Lan Cargo claimed, it was not necessary to annul the decision at issue in its entirety on those grounds, in so far as, notwithstanding the errors made by the Commission as regards the appellants’ liability for those elements, the latter had not demonstrated that the Commission had erred in law in finding that they had participated in that infringement.
57It is therefore necessary to ascertain whether the General Court erred in law by refusing to annul the decision at issue in its entirety.
58According to settled case-law, partial annulment of an act of EU law is possible only if the elements which it is sought to have annulled can be severed from the remainder of the measure, which presupposes that such partial annulment does not have the effect of altering its substance (see, to that effect, judgments of 14 May 2020, NKT Verwaltung and NKT v Commission, C‑607/18 P, EU:C:2020:385, paragraph 292 and the case-law cited, and of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 293 and the case-law cited).
59The Court of Justice has clarified the conditions for partial annulment of a Commission decision finding that an undertaking participated in several forms of anticompetitive conduct comprising a single and continuous infringement.
60In paragraph 44 of the judgment of 6 December 2012, Commission v Verhuizingen Coppens (C‑441/11 P, EU:C:2012:778), the Court of Justice held that, if an undertaking has directly taken part in one or more of the forms of anticompetitive conduct comprising a single and continuous infringement, but it has not been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel and that it was aware of all the other offending conduct planned or put into effect by those other participants in pursuit of the same objectives, or that it could reasonably have foreseen all that conduct and was prepared to take the risk, the Commission is entitled to attribute to that undertaking liability only for the conduct in which it had participated directly and for the conduct planned or put into effect by the other participants, in pursuit of the same objectives as those pursued by the undertaking itself, where it has been shown that the undertaking was aware of that conduct or was able reasonably to foresee it and prepared to take the risk.
61The Court of Justice added, in paragraph 45 of that judgment, that such a fact cannot, however, relieve that undertaking of its liability for the conduct in which it is established that it took part or for which it can actually be held responsible. It also noted in paragraph 45, as in paragraph 90 of the judgment of 16 June 2022, Quanta Storage v Commission (C‑699/19 P, EU:C:2022:483), that the fact that an undertaking did not take part in all aspects of an anticompetitive arrangement or that it played only a minor role in the aspects in which it did participate is not material for the purposes of establishing the existence of an infringement on its part, given that those factors need to be taken into consideration only when the gravity of the infringement is assessed and only if and when it comes to determining the fine.
62However, the Court of Justice clarified, in paragraph 46 of the judgment of 6 December 2012, Commission v Verhuizingen Coppens (C‑441/11 P, EU:C:2012:778), reproduced in paragraph 68 of the judgment of 16 June 2022, Sony Corporation and Sony Electronics v Commission (C‑697/19 P, EU:C:2022:478), that a Commission decision categorising a global cartel as a single and continuous infringement can be ‘divided’ in that manner only if the undertaking in question has been put in a position, during the administrative procedure, to understand that it is also alleged to have engaged in each of the forms of conduct comprising that infringement, hence to defend itself on that point, and only if the decision is sufficiently clear in that regard.
63The Court of Justice inferred from this, in paragraph 47 of the judgment of 6 December 2012, Commission v Verhuizingen Coppens (C‑441/11 P, EU:C:2012:778), that, where the conditions set out in paragraph 46 of that judgment are satisfied, if the EU judicature finds that the Commission has not proved to the requisite legal standard that, when participating in one of the forms of anticompetitive conduct comprising a single and continuous infringement, the undertaking was aware of the other anticompetitive conduct adopted by the other participants in the cartel in pursuit of the same objectives or could reasonably have foreseen that conduct and was prepared to take the risk, the only inference which the EU judicature must draw is that the undertaking may not be attributed liability for that other conduct and, in consequence, may not be attributed liability for the single and continuous infringement as a whole, and, to that extent alone, the decision challenged before it must be held to be unfounded. The severability of the decision imputing to an undertaking liability for a single and continuous infringement as a whole, even though that undertaking participated in it only in one of its elements, is therefore not subject to conditions other than those referred to above.
64In the present case, it is apparent from paragraphs 581, 615 and 630 to 632 of the judgment under appeal that the General Court considered that the Commission, although it had demonstrated that those carriers had participated in the element of the single and continuous infringement relating to the fuel surcharge as from 22 July 2005, had not, by contrast, established to the requisite legal standard that those carriers had the requisite knowledge of the single and continuous infringement in its two other elements relating to the security surcharge and the refusal to pay commission.
65It is therefore in the light of the case-law cited in paragraphs 60 to 63 of the present judgment that the arguments of Latam Airlines and Lan Cargo must be examined.
–The first part, alleging that the General Court failed to assess whether the annulled elements could be severed
66By the first part of their first ground of appeal, Latam Airlines and Lan Cargo submit, in essence, that the General Court erred in law by annulling the decision at issue only in so far as it concerns their participation in the elements of the single and continuous infringement relating to the security surcharge and the refusal to pay commission, whereas, in their view, the conclusion that the Commission had been wrong to find that the second appellant had the requisite knowledge of those two elements of the single and continuous infringement should result in the annulment of that decision in its entirety.
67It follows from the case-law cited in paragraphs 60 to 63 of the present judgment that, in so far as the finding, by the EU judicature, that the Commission has failed to prove to the requisite legal standard that, when participating in one of the forms of anticompetitive conduct comprising a single and continuous infringement, an undertaking was aware of the other anticompetitive conduct adopted by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and was prepared to take the risk, cannot lead that undertaking to be relieved of its liability for that part of the conduct in which it has undeniably taken part or for conduct for which it can undeniably be held responsible, that the EU judicature must confine itself to partial annulment of the Commission decision challenged before it. Since the very purpose of a Commission decision establishing that, in breach of Article 101 TFEU, an undertaking has participated in a cartel is to make a finding that that undertaking has engaged in one or more forms of conduct constituting an infringement of that nature, such a partial annulment cannot alter the substance of a decision of that kind (judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraphs 50 and 51).
68In those circumstances, by annulling the decision at issue only in part since it had not called into question Lan Cargo’s participation in the exchanges relating to the fuel surcharge, the General Court did not err in law.
69The appellants’ argument that the Commission had itself considered, in recital 863 of the decision at issue, that it was ‘artificial to split up … continuous conduct, characterised by a single purpose, by treating it as consisting of several separate infringements, when what was involved was a single infringement which progressively would manifest itself in both agreements and concerted practices’ cannot justify a different conclusion. It follows unambiguously from paragraphs 471 to 581 of the judgment under appeal, which deal with the General Court’s examination of the evidence of Lan Cargo’s participation in the element of the single and continuous infringement relating to the fuel surcharge, that the General Court considered not that that element constituted a separate and isolated infringement, but that the Commission was justified in taking the view that, on account of Lan Cargo’s participation in that element and its proven or presumed knowledge of the other conduct relating to that element, the single and continuous infringement, by which the incriminated carriers had coordinated their behaviour in relation to the pricing of freight services, could be attributed to that carrier. That assessment is supported by the finding, in paragraph 429 of the judgment under appeal, that the fuel surcharge was a component of the price of freight services and that the element of the single and continuous infringement relating to the fuel surcharge therefore concerned the pricing of freight services.
70The fact that the Commission did not establish that Lan Cargo was aware of the exchanges relating to the security surcharge or of those relating to the refusal to pay commission was not such as to call into question the single and continuous nature of the infringement found, even though liability could not be attributed to that carrier in respect of that infringement in its entirety (see, by analogy, judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 160).
71As regards the appellants’ argument based on the judgment of 4 July 2013, Commission v Aalberts Industries and Others (C‑287/11 P, EU:C:2013:445), it is sufficient to note that it is apparent from paragraphs 60 to 63 of that judgment that it concerns a situation in which, unlike in the present case, the participation of the undertaking concerned in a single and continuous infringement had not been established.
72Accordingly, the first part of the first ground of appeal must be rejected as unfounded.
–The third part, alleging a reversal of the burden of proof
73It is settled case-law of the Court of Justice that it is for the party or the authority alleging an infringement of the competition rules to prove it and that it is for the undertaking or association of undertakings raising a defence against a finding of an infringement of those rules to demonstrate that the conditions for applying the rule on which such defence is based are satisfied, so that the authority will then have to resort to other evidence. However, even if the burden of proof rests, according to those principles, on the Commission or on the undertaking or association concerned, the 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 satisfied (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, paragraphs 78 and 79, and of 17 June 2010, Lafarge v Commission, C‑413/08 P, EU:C:2010:346, paragraphs 29 and 30 and the case-law cited).
74In the present case, it should be noted that, by the third part of the first ground of appeal, the appellants criticise the General Court for reversing the burden of proof in paragraph 632 of the judgment under appeal, even though that line of argument stems from a misreading of the judgment under appeal.
75Paragraph 632 refers to paragraph 581 of the judgment under appeal. Having examined the evidence relied on by the Commission, the General Court noted, in paragraph 580 of that judgment, that the Commission was justified in finding that Lan Cargo had the requisite knowledge of the element of the single and continuous infringement relating to the fuel surcharge, but only from 22 July 2005, and that the Commission had erred in holding the appellants liable for that element before that date. The General Court added, in paragraph 581 of that judgment, that, in view of the appellants’ participation in that element after that date, the Commission’s error was not such as to lead to the annulment of the decision at issue in its entirety. The General Court therefore did not reverse the burden of proof of the appellants’ participation in the infringement, in so far as it considered, in essence, that it was for the Commission to establish that participation and that proof of the participation of Latam Airlines and Lan Cargo in the single and continuous infringement, in its element relating to the fuel surcharge, had been adduced from 22 July 2005.
76Seen in that context, the statement, in paragraph 632 of the judgment under appeal, that the appellants had ‘not demonstrated that the Commission erred in law in finding that they had participated’ in the single and continuous infringement referred to in the decision at issue can only be understood as meaning that the arguments put forward by the appellants in support of their first plea in law were not sufficient to justify the annulment of that decision in its entirety.
77Accordingly, the third part of the first ground of appeal must be rejected as unfounded.
–The second part, alleging a failure to state reasons
78It is apparent from the examination of the first and third parts of the first ground of appeal that the General Court did not err in law and did not reverse the burden of proof in finding that the fact that the appellants had not participated in the elements of the single and continuous infringement relating to the security surcharge and the refusal to pay commission could not justify the annulment of the decision at issue in its entirety, in so far as it concerns them.
79In those circumstances, the second part of that ground of appeal, by which the appellants criticise the General Court, in essence, for failing to have set out to the requisite legal standard, in paragraph 632 of the judgment under appeal, the grounds on which annulment of the decision at issue in its entirety in so far as it concerns them was not justified in the present case, must be rejected as ineffective.
80The errors of law made by the General Court as regards the obligation to state reasons cannot lead to the setting aside of the judgment under appeal, if its operative part is well founded on other legal grounds (judgment of 12 February 2015, Commission v IPK International, C‑336/13 P, EU:C:2015:83, paragraph 64 and the case-law cited).
81In accordance with that case-law, even though paragraph 632 of the judgment under appeal does not disclose with sufficient clarity the reasons why the General Court considered that there was no basis for annulling the decision at issue in its entirety, in so far as it concerns the appellants, that fact would not be sufficient to justify setting aside the judgment under appeal.
82Consequently, the second part of the first ground of appeal, alleging breach of the obligation to state reasons, must be rejected as ineffective.
83It follows that the first ground of appeal must be rejected as in part ineffective and in part unfounded.
The second ground of appeal, alleging infringement of the rights of the defence
Arguments of the parties
84By their second ground of appeal, Latam Airlines and Lan Cargo submit that the General Court erred in law in its assessment of the scope of their rights of the defence.
85That ground of appeal comprises two parts.
86By the first part of that ground of appeal, the appellants submit that the General Court erred in law in its assessment of the infringement of the rights of the defence resulting from the Commission’s failure to state reasons for abandoning objections against 13 carriers and one service provider.
87In support of their line of argument, Latam Airlines and Lan Cargo rely on the case-law arising from the judgment of 9 October 2014, ICF v Commission (C‑467/13 P, EU:C:2014:2274), and submit that, in the present case, abandoning those objections materially altered the evidence of the infringements found, so that the Commission was required to enable the carriers to whom its decision was ultimately addressed to make known their observations on those objections being abandoned.
88The appellants submit, in that regard, that the General Court referred, in paragraphs 555 and 574 of the judgment under appeal, to an email of 22 July 2005 which had played an important role in its assessment of the appellants’ participation in the infringement referred to in the decision at issue even though certain carriers in respect of which the Commission abandoned objections also replied to that email. The appellants add that, in paragraphs 350 and 351 of the judgment under appeal, the General Court rejected their line of argument which was based on their suspicion that the discontinuance of proceedings against another carrier resulted from the existence of a State constraint, on the ground that the appellants had not adduced evidence of the existence of such a constraint.
89Furthermore, for the same reasons, Latam Airlines and Lan Cargo claim that the judgment under appeal is, at the very least, vitiated by a failure to state reasons in that the General Court did not set out the reasons why it considered that the abandonment of the objections did not materially alter the evidence.
90By the second part of the second ground of appeal, the appellants submit that the General Court distorted the evidence by holding, in paragraph 568 of the judgment under appeal, that the exchanges resulting from the email of 22 July 2025 and in particular the reactions regarding the use of the infowarding.com website and the attempt by a carrier to contact the author of the advertisement relating to the fuel surcharge published on that website ‘nonetheless [demonstrated] the shared expectation of several incriminated carriers that discipline would be maintained on the market with respect to the [fuel surcharge]’. According to the appellants, it is clear that those reactions and that attempt, originating from undertakings which were not addressees of the decision at issue, could not reflect the expectations of the ‘incriminated carriers’ to which that decision was addressed.
91The Commission contends that the second ground of appeal is unfounded.
Findings of the Court
92It must be held that the first part of the second ground of appeal is based on a misreading of the case-law cited in paragraph 87 of the present judgment. As the General Court stated, in essence, in paragraph 252 of the judgment under appeal, in order to comply with the obligation to state reasons, an EU institution is not required to set out, in a measure which it adopts, the reasons why similar measures addressed to third parties have not been adopted. Accordingly, the Commission is not required to set out, in a decision finding an infringement of the competition rules, the reasons why it decided not to bring proceedings against or not to penalise certain undertakings for the infringement in question.
93The General Court was also right to recall, in paragraph 254 of the judgment under appeal, the case-law according to which, where the Commission abandons all the objections raised against certain companies initially involved in the procedure concerned, it cannot be required to allow the companies to which its decision is ultimately addressed to make known their views on that abandonment, since the communication to the parties concerned of further objections and, consequently, the opportunity for them to express their views on those objections are required only where the Commission is led to take new facts into account against the undertakings concerned or to alter materially the evidence for the contested infringements (judgment of 9 October 2014, ICF v Commission, C‑467/13 P, EU:C:2014:2274, paragraph 36).
94It follows from that case-law merely that the Commission is required to re-hear the undertakings against which it has continued proceedings where, following the discontinuation of proceedings against certain other undertakings, it is led to take new facts into account against the first undertakings or materially alters the evidence which it intends to rely on against them. By contrast, contrary to what the appellants appear to submit, that case-law cannot be understood as requiring the Commission, first, to re-hear the undertakings against which it has continued proceedings in relation to evidence on which those undertakings have already had the opportunity to comment and, second, to explain in its decision how the discontinuation of proceedings against certain undertakings might affect its assessment of that evidence.
95In the present case, it is not apparent from the judgment under appeal and the appellants do not claim that they had submitted, before the General Court, that, following the discontinuation of the proceedings against certain undertakings, the Commission was led to take new facts into account against the appellants, or that it materially altered the evidence which it was intending to rely on against them. In those circumstances, the General Court did not err in law in holding that the Commission was not required to set out, in the decision at issue, the reasons why it discontinued proceedings against certain undertakings, or to allow the appellants to make known their views on that discontinuance.
96Accordingly, the first part of the second ground of appeal must be rejected as unfounded.
97As regards the second part of the second ground of appeal, it should be borne in mind that, where an appellant alleges distortion of the evidence by the General Court, that party must, pursuant to Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in that party’s view, led to such distortion. In addition, according to settled case-law, that distortion must be obvious from the documents in the Court’s file, without any need to carry out a new assessment of the facts and the evidence (judgment of 10 November 2022, Commission v Valencia Club de Fútbol, C‑211/20 P, EU:C:2022:862, paragraph 55 and the case-law cited).
98Thus, it is not sufficient to show that a document could be interpreted differently from the interpretation adopted by the General Court (judgment of 5 March 2024, Kočner v Europol, C‑755/21 P, EU:C:2024:202, paragraph 96 and the case-law cited).
99In the present case, the appellants’ line of argument summarised in paragraph 90 of the present judgment is limited to criticising the General Court for failing to take account of the fact that the reactions to the email of 22 July 2005 and the attempt to contact the author of the advertisement referred to in that email came from undertakings which were not addressees of the decision at issue.
100It is apparent from the email of 22 July 2005 and the replies thereto, contained in the case file at first instance, that, as the General Court stated in paragraph 565 of the judgment under appeal, that email was addressed, inter alia, to several addressees of the decision at issue and that the undertakings which replied to it included at least one carrier to which the decision at issue was also addressed. In addition, in paragraph 566 of the judgment under appeal, the General Court merely stated that the attempt to contact the author of the advertisement concerned by that email came from ‘a carrier’, without stating that that carrier was an addressee of the decision at issue.
101In those circumstances, the error of analysis, alleged by the appellants, of that email and of the replies thereto cannot be regarded as having been established.
102As to the remainder, it should be noted that, under the guise of an allegation of distortion of that email and the replies thereto, the appellants are in fact challenging the General Court’s assessment of the evidence.
103It should be noted that, under Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is to be limited to points of law. The General Court therefore has exclusive jurisdiction to find and appraise the relevant facts. Save where those facts have been distorted, their appraisal does not, therefore, constitute a point of law which is subject as such to review by the Court of Justice on appeal (judgment of 10 September 2024, Commission v Ireland and Others, C‑465/20 P, EU:C:2024:724, paragraph 110 and the case-law cited).
104Therefore, in so far as, by their arguments summarised in paragraph 90 of the present judgment, the appellants seek to obtain a fresh assessment by the Court of Justice of the weight and scope of the email of 22 July 2005 and of the replies thereto, those arguments are inadmissible.
105Consequently, the second part of the second ground of appeal must be rejected as in part inadmissible and in part unfounded.
106It follows that that ground of appeal must be dismissed as in part inadmissible and in part unfounded.
The third ground of appeal, alleging an error of law as regards the Commission’s jurisdiction to find the existence of a worldwide cartel
Arguments of the parties
107By their third ground of appeal, which comprises three parts, Latam Airlines and Lan Cargo submit that the General Court erred in law in its assessment of the Commission’s jurisdiction.
108By the first part of that ground of appeal, they criticise the General Court for failing to examine or, at the very least, incorrectly examining their plea alleging that the Commission did not have jurisdiction to find the existence of a ‘worldwide cartel’. The General Court wrongly assumed that Latam Airlines and Lan Cargo argued before it that the reference to a ‘worldwide cartel’ in the decision at issue referred to an infringement of Article 101 TFEU, the anticompetitive object of which extended to all routes worldwide. Latam Airlines and Lan Cargo clearly stated in their application before the General Court that the factual finding of a worldwide cartel was different from that of an infringement of Article 101 TFEU and that there was no legal basis for the Commission to have jurisdiction to make such a finding.
109By the second part of the third ground of appeal, they submit that, even if the General Court’s findings concerning their line of argument were to be regarded as being a mere finding of fact, the General Court distorted that line of argument.
110By the third part of that ground of appeal, Latam Airlines and Lan Cargo submit that the Commission did not have jurisdiction to make findings of fact concerning conduct restricting competition which took place outside the internal market. Such factual findings alter the appellants’ legal position by exposing them to actions for damages before the national courts and could be made only if the Commission had jurisdiction under public international law. Neither the test based on the place in which anticompetitive practices are implemented (‘the implementation test’) nor the test based on the qualified effects of those practices in the European Union is met, since price competition between carriers takes place at the airport of origin. As it is a line of argument alleging lack of jurisdiction on the part of the author of an act, that third part is a matter of public policy and should be raised by the EU judicature of its own motion.
111The Commission contends that the third ground of appeal should be rejected.
Findings of the Court
112As a preliminary point, it should be recalled that, in paragraphs 117 to 128 of their application before the General Court, Latam Airlines and Lan Cargo submitted, by the second part of their third plea, that the Commission did not have jurisdiction to find that they had participated in a ‘worldwide cartel’. In paragraphs 119 and 120 of that application, they stated that two interpretations of that expression were possible, since it could designate either an infringement of Article 101 TFEU, the anticompetitive object of which extended to all routes worldwide, or an ‘unwritten sui generis legal instrument’.
113Furthermore, by the third part of the fourth plea of their application before the General Court, Latam Airlines and Lan Cargo maintained that the finding of the existence of a worldwide cartel exceeded the Commission’s jurisdiction and created ambiguity as to the geographic scope of the infringement found. They stated, respectively in paragraphs 146, 147 and 148 of that application, that ‘the Commission does not have the competence to find an infringement for routes between two non-EEA airports’, that it ‘[was] essential that the Commission defines the scope of an infringement precisely’ and that ‘the Commission [had] to be clear as to the [subject matter], and geographic and temporal scope of the infringement it [alleged]’.
114In the context of the examination of the third plea, the General Court held, in paragraph 151 of the judgment under appeal, that, ‘contrary to the [appellants’] submission, the reference to a “worldwide cartel” in the [decision at issue referred] neither to an “unwritten sui generis legal basis”, nor to an infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC‑Switzerland Air Transport Agreement’ and that ‘the reference to the coordination of the conduct of the incriminated carriers “[in] their pricing behaviour in the provision of airfreight services on a global basis” in the introductory paragraph of Article 1 of that decision [was] a mere finding of fact which the Commission classified in Article 1(1) to (4) of the [decision at issue] as an infringement of the competition rules applicable on routes in respect of which it found that, during the periods in question, they fell within its jurisdiction’.
115In paragraph 362 of the judgment under appeal, which contains a reference to paragraph 151 of that judgment, the General Court, in response to the fourth plea of the application before the General Court, noted that the line of argument put forward by Latam Airlines and Lan Cargo ‘[was] based on the incorrect premiss that the Commission, in the operative part of the [decision at issue], [had] found an infringement of the competition rules which encompassed routes between airports situated outside the EEA’.
116On those grounds, the General Court responded, without distorting it, to the line of argument put forward before it, alleging, inter alia, that the Commission lacked jurisdiction to find an infringement on those routes and that the decision at issue was ambiguous.
117Therefore, the first two parts of the third ground of appeal, alleging, respectively, a defective statement of reasons and a distortion, must be rejected as unfounded.
118With regard to the third part of that ground of appeal, alleging that the Commission lacked jurisdiction to make findings of fact of a ‘worldwide’ cartel, it must be borne in mind that EU competition law may be applied to conduct which has not been adopted within the territory of the European Union but whose anticompetitive effects are liable to have an impact on the EU market. If the applicability of the prohibitions laid down by that law were made to depend on the place where the agreement, decision or concerted practice was formed, the result would obviously be to give undertakings an easy means of evading those prohibitions. In order to prevent such conduct, the Commission may therefore base its jurisdiction on the implementation test or the qualified effects test (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 43 to 46).
119The principle that the Commission has jurisdiction under public international law to apply competition law to conduct adopted outside the territory of the European Union, provided that the implementation test or the qualified effects test is satisfied, would be rendered meaningless if the Commission could not make any finding of fact relating to the existence, nature, object or geographic scope of such conduct.
120Recognition of the Commission’s jurisdiction to deal with cartels formed outside the European Union therefore necessarily implies that it is possible for that institution to make the necessary findings of fact in order to justify its jurisdiction, under public international law, to find and penalise an infringement of Article 101 TFEU and, as the case may be, Article 53 of the EEA Agreement.
121In those circumstances, the third part of the third ground of appeal must also be rejected as unfounded.
122Consequently, that ground of appeal must be rejected in its entirety.
The fourth ground of appeal, alleging errors of law in the determination of the geographic scope of the infringement
Arguments of the parties
123By their fourth ground of appeal, Latam Airlines and Lan Cargo criticise the General Court for making various errors of law in rejecting their plea alleging infringement of the obligation to state reasons as regards the determination of the geographic scope of the single and continuous infringement.
124That ground of appeal comprises, in essence, three parts.
125By the first part of that ground of appeal, Latam Airlines and Lan Cargo submit that the General Court distorted the first sentence of recital 1210 of the decision at issue by finding, in paragraph 153 of the judgment under appeal, that that recital, in so far as it referred to ‘the geographic scope of the infringement [which] was worldwide’, contained a clerical error and that it was necessary to read it as ‘the geographic scope of the cartel [at issue] was worldwide’. The wording of that recital is clear and precludes any interpretation.
126By the second part of that ground of appeal, Latam Airlines and Lan Cargo criticise the General Court for breaching the principles of legal clarity and certainty under EU law and Article 47 of the Charter of Fundamental Rights of the European Union by rejecting the complaint alleging that the decision at issue was ambiguous as regards the determination of the geographic scope of the cartel at issue.
127While stating that it understood that the Commission did not intend to find an infringement of Article 101 TFEU on all routes worldwide, they consider that third parties, and in particular the national courts which may hear civil actions for damages, are capable of interpreting the decision at issue in that way.
128The ambiguity of the decision at issue stems essentially from the fact that the Commission (i) considered that the conduct at issue amounted to a worldwide cartel implemented globally; (ii) included a statement relating to global price coordination in the operative part of the decision at issue; and (iii) stated, in recital 1210 of that decision, that the infringement was worldwide.
129The principle of legal clarity requires that acts adopted by EU institutions, such as Commission decisions in competition cases, be clear and unambiguous.
130By the third part of the fourth ground of appeal, Latam Airlines and Lan Cargo submit that the General Court erred in law in stating, in paragraph 357 of the judgment under appeal, that, ‘as regards the scope and nature of the infringements penalised, it [was] in principle the operative part of the [decision at issue], not the grounds, that [was] important and that it [was] therefore only where there [was] a lack of clarity in the terms used in the operative part that it should be interpreted by reference to the grounds of the decision’.
131According to the appellants, the General Court thus infringed Article 16 of Regulation No 1/2003, which, by providing that the rule that national courts may not take decisions running counter to a ‘Commission decision’ relating to a proceeding under Article 101 TFEU, does not distinguish between the operative part of that decision and its grounds.
132The Commission contends that the fourth ground of appeal is unfounded.
Findings of the Court
133As recalled in paragraph 97 of the present judgment, a distortion must be obvious from the documents in the case file without there being any need to carry out a new assessment of the facts and the evidence.
134In the present case, the General Court, in paragraph 153 of the judgment under appeal, faithfully reproduced the first sentence of recital 1210 of the decision at issue. However, it placed it in the context of the other sentences in that recital and other recitals in that decision.
135First, it noted, in paragraph 153 of the judgment under appeal, that the reference to the worldwide geographic scope of the infringement was followed by sentences which specified the routes to which the cartel at issue related.
136Second, it had previously found, in paragraph 152 of the judgment under appeal, that other recitals of the decision at issue referred either to an ‘infringement of the applicable competition rules, the geographical scope of which is limited to specified routes’, or to a ‘worldwide cartel’, ‘worldwide nature’ or ‘implemented globally’.
137It was therefore after taking the view that it followed from the context of the isolated reference to a ‘worldwide infringement’, made in the first sentence of recital 1210 of the decision at issue, that it was a mere clerical error from which the General Court inferred that that sentence had to be read as referring to a worldwide cartel.
138In the light of that particular context, highlighted by the General Court, the latter cannot be regarded as having manifestly misread, within the meaning of the case-law referred to in paragraph 97 of the present judgment, the first sentence of recital 1210 of the decision at issue by considering, in the light of both the other sentences of that recital and the other recitals of that decision, that the use of the term ‘infringement’ in that first sentence was a clerical error and that that term should be read as ‘cartel’.
139It follows that the first part of the fourth ground of appeal must be rejected as unfounded.
140By the second part of that ground of appeal, Latam Airlines and Lan Cargo criticise the General Court, in essence, for making an error of law in finding that the decision at issue was not ambiguous as regards the scope of the infringement found and that it did not have to be annulled in its entirety for lack of clarity.
141However, Latam Airlines and Lan Cargo are wrong to claim that the General Court erred in its interpretation of the decision at issue.
142First, as regards the operative part of that decision, it is apparent from paragraphs 151 and 358 of the judgment under appeal that the General Court considered that the reference, in the introductory paragraph of Article 1 of the decision at issue, to the existence of price coordination for the provision of freight services on a global basis was merely a finding of fact which the Commission had classified in paragraphs 1 to 4 of that article as an infringement of the competition rules applicable to routes which it had considered fell within its jurisdiction during the periods in question. That assessment is consistent with the very wording of that operative part, which in fact draws a distinction between the concept of ‘behaviour’, referred to only in the preamble, and that of ‘infringement’, which is defined in paragraphs 1 to 4 of that operative part.
143Second, as regards the grounds of the decision at issue, the General Court was fully entitled, in paragraphs 152 to 154 of the judgment under appeal, to read those grounds as a whole, in particular those set out in recitals 74, 112, 832, 903 and 1210 thereof, from which it inferred that that decision was based on the distinction between the mere finding of fact of conduct having a worldwide geographic scope and the finding of an infringement of Article 101 TFEU and Article 53 of the EEA Agreement, which had as its object the restriction of competition on specific routes.
144Therefore, the General Court did not err in law in inferring from this that the decision at issue was not vitiated by a lack of clarity as to the definition of the scope of the single and continuous infringement and that, therefore, it did not have to be annulled in its entirety on that ground.
145The second part of the fourth ground of appeal is therefore unfounded.
146By the third part of that ground of appeal, Latam Airlines and Lan Cargo criticise the General Court for infringing Article 16 of Regulation No 1/2003 by giving precedence, in paragraph 357 of the judgment under appeal, to the operative part of the decision at issue over its grounds, whereas Article 16 refers to the Commission decision as a whole.
147In accordance with the first sentence of Article 16 of Regulation No 1/2003, when national courts rule on agreements, decisions or practices under Article 101 or Article 102 TFEU which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission.
148Whatever the grounds on which a decision adopted by an EU institution is based, only the operative part of that decision, read in the light of the grounds which constitute the essential basis for it, is capable of producing legal effects (see, to that effect, order of 28 January 2004, Netherlands v Commission, C‑164/02, EU:C:2004:54, paragraph 21). It is those effects which are binding on the national courts, in accordance with the first sentence of Article 16 of Regulation No 1/2003.
149Accordingly, by stating in paragraph 357 of the judgment under appeal that, ‘as regards the scope and nature of the infringements penalised, it is in principle the operative part of the [decision at issue], not the grounds, that is important and that it is therefore only where there is a lack of clarity in the terms used in the operative part that it should be interpreted by reference to the grounds of the decision’, the General Court did not infringe the first sentence of Article 16 of Regulation No 1/2003.
150It follows that the third part of the fourth ground of appeal must be rejected as unfounded, as must the fourth ground of appeal in its entirety.
151As none of the grounds of appeal raised by Latam Airlines and Lan Cargo in support of their appeal has been upheld, the appeal must be dismissed in its entirety.
Costs
152In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs.
153Under 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.
154Since the Commission has applied for costs to be awarded against Latam Airlines and Lan Cargo and the latter have been unsuccessful, the appellants must be ordered to bear their 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 Latam Airlines Group SA and Lan Cargo SA to pay the costs.
Delivered in open court in Luxembourg on 26 February 2026.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.