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) — Inbound freight services — Territorial jurisdiction of the Commission — Qualified effects — Characterisation — Single and continuous infringement — Taking into account the effects of the single and continuous infringement as a whole)In Case C‑378/22 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 9 June 2022,British Airways plc, established in Harmondsworth (United Kingdom), represented by T. Coates, Barrister-at-Law, A. Lyle-Smythe and R. O’Donoghue, advocaten, and T. Sebastian, Barrister,the other party to the proceedings being:European Commission, represented initially by A. Dawes, N. Khan and I. Söderlund, acting as Agents, and subsequently by A. Dawes and I. Söderlund, acting as Agents,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 17 April 2024,after hearing the Opinion of the Advocate General at the sitting on 5 September 2024,gives the following
Judgment
1By its appeal, British Airways plc seeks to have set aside the judgment of the General Court of the European Union of 30 March 2022, British Airways v Commission (T‑341/17, EU:T:2022:182; ‘the judgment under appeal’), by which the General Court dismissed in part its action seeking 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 appellant, and the cancellation of the fine imposed on it 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 50 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.
13British Airways is an airline operating 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 fuel surcharge’, ‘the security surcharge’ and ‘the refusal to pay commission’, respectively).
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 British Airways, 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 British Airways, 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 British Airways.
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, British Airways v Commission (T‑48/11, EU:T:2015:988), the General Court annulled the initial decision in part in so far as it concerned British Airways. 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 British Airways.
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 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 as regards routes between airports within the European Union and airports in Switzerland (‘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’ and, as regards freight services offered on those routes, ‘inbound freight services’).
31In particular, in recital 1045 of that decision, the Commission stated that anticompetitive practices with regard to inbound freight services were ‘liable to have immediate, substantial and foreseeable effects within the EU [and the] EEA, as the increased costs of air transport to the EEA, and consequently higher prices of imported goods are, by their very nature liable to have effects on consumers in the EEA’. It added that, in the case at hand, those practices were liable to have such effects on the provision of airfreight services by other carriers within the EEA, between the different hubs in the EEA used by carriers from third countries and the airports of destination of those shipments in the EEA, to which the third-country carrier did not fly.
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 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 British Airways 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 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;– 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 British Airways ran from 22 January 2001 until 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 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).
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:…(e) British Airways … from 22 January 2001 until 14 February 2006 excluding the period from 2 October 2001 to 14 February 2006 in relation to the fuel surcharge and the security surcharge;…(2) The following undertakings infringed Article 101 [TFEU] as regards [EU-third country routes], for the following periods:…(e) British Airways … from 1 May 2004 until 14 February 2006 excluding freight services performed other than from Hong Kong (China), Japan, India, Thailand, Singapore, South Korea and Brazil in relation to the fuel surcharge and the security surcharge;…(3) The following undertakings infringed Article 53 of the EEA Agreement as regards [non-EU EEA-third country routes], for the following periods:…(e) British Airways … from 19 May 2005 until 14 February 2006 excluding freight services performed other than from Hong Kong (China), Japan, India, Thailand, Singapore, South Korea and Brazil in relation to the fuel surcharge and the security surcharge;…(4) The following undertakings infringed Article 8 of the [EC-Switzerland Air Transport Agreement] as regards [EU-Switzerland routes], for the following periods:…(e) British Airways … from 1 June 2002 until 14 February 2006 except in relation to the fuel surcharge and the security surcharge;…Article 3For the single and continuous infringement referred to in Article 1 …, the following fines are imposed:…(e) British Airways …: EUR 104040000;…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 31 May 2017, British Airways brought an action for annulment of the decision at issue in so far as that decision concerns the appellant and, in the alternative, for cancellation of the fine imposed on it or a reduction of that fine.
43In support of that action, British Airways relied on nine pleas in law.
44Amongst those pleas, the fourth alleged a lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services. The seventh plea, divided into two parts, related to the incorrect determination of the value of sales for the purpose of setting the amount of the fine. By the second part of the latter plea, British Airways submitted that the Commission should have excluded from the value of sales its turnover on inbound routes.
45By way of the judgment under appeal, the General Court, having upheld the sixth plea, alleging an error of assessment of British Airways’s participation in the element of the single and continuous infringement relating to the refusal to pay commission, annulled Article 1(1)(e), (2)(e) and (3)(e) of the decision at issue in so far as that article found that British Airways had participated in the element of the single and continuous infringement relating to the refusal to pay commission, and Article 1(4)(e) of that decision in its entirety.
46It set the amount of the fine imposed on British Airways at EUR 84456000.
47Lastly, it dismissed the action as to the remainder.
Forms of order sought by the parties to the appeal
48By its appeal, British Airways claims that the Court of Justice should:– principally, set aside the judgment under appeal in its entirety or, in the alternative, annul it in part, in so far as it rejects the fourth plea and the second part of the seventh plea in law in the action before the General Court;– principally, annul the decision at issue in its entirety or, in the alternative, annul the first sentence of recital 1045 and recital 1046 thereof, and– order the Commission to pay the costs.
49The Commission contends that the Court of Justice should:– dismiss the appeal and order British Airways to pay the costs, or– in the alternative, if the Court of Justice were to uphold the appeal, refer the case back to the General Court and reserve the costs.
The appeal
50In support of its appeal, British Airways puts forward three grounds of appeal, alleging, first, errors of law in the analysis of the qualified effects of anticompetitive practices in the European Union (‘the qualified effects’) carried out by the General Court in order to establish the Commission’s jurisdiction with regard to inbound freight services, second, errors of law in the assessment of the effects of the conduct relating to inbound routes on the prices of goods imported into the EEA and, third, an error of law resulting from the taking into account of the effects of the single and continuous infringement taken as a whole.
The first ground of appeal, alleging errors of law in the analysis of qualified effects in order to establish the Commission’s jurisdiction with regard to inbound freight services
51The first ground of appeal comprises two parts.
52By the first part of that ground of appeal, the appellant criticises the General Court for having substituted its own reasoning for that of the Commission which is allegedly incomplete. By the second part of that ground of appeal, British Airways submits that, in any event, the reasoning provided by the General Court does not make it possible to identify a relevant and sufficient effect on competition on one or more downstream goods markets within the EEA.
The first part, alleging substitution of reasoning
–Arguments of the parties
53British Airways submits that, in recital 1045 of the decision at issue, the Commission limited itself to stating, by means of a mere assertion and in general and imprecise terms, that the anticompetitive practices in third countries concerning airfreight transport to the European Union and the EEA were liable to have immediate, substantial and foreseeable effects within the European Union and the EEA, without analysing each of those three criteria or addressing the question of the likelihood of the foreseeable effects of those practices. The appellant maintains that to confine itself to such a manifestly inadequate statement of reasons creates the risk that the limits on the Commission’s jurisdiction with regard to conduct adopted outside the European Union will be rendered meaningless.
54The General Court ignored that fundamental flaw and sought to remedy it by substituting, at the cost of an error of law, its own analysis for that of the Commission.
55The Commission contends that that claim is ineffective and, in any event, unfounded.
–Findings of the Court
56It 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).
57The General Court therefore cannot fill, by means of its own reasoning, a gap in the reasoning in the act challenged before it in such a way that its examination does not relate to any assessment carried out in that act (judgment of 18 July 2013, UEFA v Commission, C‑201/11 P, EU:C:2013:519, paragraph 65 and the case-law cited).
58However, where the General Court merely responds to the line of argument raised before it and explains the reasoning of that act, it cannot be considered that the General Court is substituting its own reasoning for that of the author of that act (see, to that effect, judgments of 12 June 2014, Deltafina v Commission, C‑578/11 P, EU:C:2014:1742, paragraph 56, and of 23 November 2023, Ryanair v Commission, C‑209/21 P, EU:C:2023:905, paragraph 49).
59In the present case, it is apparent from the General Court’s findings in paragraphs 44 and 107 of the judgment under appeal that the first ground on which the Commission relied, in recital 1045 of the decision at issue, in order to find that the qualified effects test was satisfied in the present case relates to the ‘increased costs of air transport to the EEA, and consequently [to] higher prices of imported goods, [which were] by their very nature liable to have effects on consumers in the EEA’, the ground to which the General Court referred as the ‘effect at issue’ (‘the effect on the prices of imported goods’), which, as the General Court pointed out in paragraph 112 of the judgment under appeal, British Airways disputed both as to its relevance and as to its foreseeability, substantiality and immediacy.
60Thus, as is clear from paragraphs 107 and 123 of the judgment under appeal, the first sentence of recital 1045 of the decision at issue contained, albeit succinctly, the factors that enabled the General Court to ascertain whether the Commission had established its extraterritorial jurisdiction in the light of the qualified effects test. It is those factors which, read in the light of the other relevant recitals of that decision, referred to in paragraphs 122, 129 to 132, 136, 139, 148 to 150, 153 and 154 of the judgment under appeal, enabled the General Court to verify that the Commission had indeed established the existence of such effects.
61It is also apparent from paragraphs 113 to 162 of the judgment under appeal that, in those paragraphs, the General Court merely responded to the line of argument put to it by British Airways and explained the statement of reasons for the decision at issue, in particular by drawing certain conclusions from the information contained in that decision.
62Therefore, in the light of the case-law referred to in paragraph 58 of the present judgment, the alleged substitution of reasoning has not been established and the first part of the first ground of appeal must be rejected.
The second part, alleging failure to identify a relevant and sufficient effect on competition in downstream goods markets
–Arguments of the parties
63British Airways submits that the General Court considered that it was not required to assess the effects on competition in downstream markets because either the Commission had found an infringement by object, which relieved the Commission of the obligation to establish the existence of qualified effects on competition within the EEA, or an increase in the prices of imported goods was capable of altering the dynamics of competition in downstream markets.
64According to British Airways, first, the qualified effects test applies both to infringements by object and to infringements by effect, so that the General Court was wrong to state, in paragraph 121 of the judgment under appeal, that the requirement of proof of qualified effects where there is a restriction of competition ‘by object’ has no basis in the wording of Article 101 TFEU and Article 53 of the EEA Agreement.
65Second, the qualified effects test cannot be satisfied on the basis of merely possible, speculative or hypothetical effects. On the contrary, it presupposes an analysis of the effects on competition in specific downstream goods markets, taking into account several factors, such as the nature of the goods at issue, the way in which the distribution of those goods was structured within the EEA or, again, the relative market share of goods imported by airfreight on inbound routes. The decision at issue expressly states, in recitals 917 and 1190, that the Commission refrained from examining such effects.
66The Commission disputes that line of argument, which it considers in part inadmissible and in part unfounded.
–Findings of the Court
67In the first place, it should be noted that the General Court stated, in paragraph 117 of the judgment under appeal, 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.
68Similarly, the General Court stated, in paragraph 121 of that judgment, as British Airways submits, that interpreting the qualified effects test, as the appellant appears to advocate, as requiring proof and quantification 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.
69The General Court inferred, in paragraph 122 of that judgment, that British Airways 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 of that conduct, 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 purposes of applying that test.
70However, as the grounds set out in the second place in paragraph 122 already show, it may not be inferred from those grounds that, in order to establish that the qualified effects test was satisfied in the present case, the General Court considered that it was sufficient that the cartel at issue could be classified as a restriction of competition by object.
71It is in fact clear from an overall reading of paragraphs 113 to 125 of the judgment under appeal that the General Court merely concerned itself with rejecting the line of argument, summarised at the end of paragraph 103 of the judgment under appeal, which British Airways had submitted to it. Thus, in those paragraphs, the General Court set out the reasons why the fact that, in the grounds of the decision at issue relating, in recital 917 of that decision, to the classification of the restriction of competition at issue and, in recitals 1190 and 1277 thereof, to the calculation of the fine, the Commission had indicated that the need to demonstrate actual anticompetitive effects was not required, given that the anticompetitive object of the conduct alleged had been established, did not in any way indicate that the Commission had, on account of that anticompetitive object, failed to assess whether that conduct had produced the qualified effects required to establish its jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services.
72On the one hand, by essentially replying that the qualified effects test, which serves as the basis of the Commission’s extraterritorial jurisdiction, is separate from the question whether the cartel at issue can be classified as a restriction of competition, within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement, the General Court did not err in law. As the Advocate General also observes in point 42 of his Opinion, the qualified effects test, which can serve as the basis under public international law for the extraterritorial application, by the Commission, of EU and EEA competition rules 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.
73On 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 126 to 162 of the judgment under appeal concerning the coordination in relation to inbound freight services taken in isolation, and in paragraphs 163 to 174 of that judgment concerning the single and continuous infringement taken as a whole.
74In those circumstances, British Airways misreads the judgment under appeal when it criticises the General Court for having considered that it was possible, for the purpose of establishing, on the basis of the qualified effects test, the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to conduct adopted outside the territory of the EEA, to avoid demonstrating such effects where that conduct can be classified as a restriction of competition by object. The line of argument set out in paragraph 64 of the present judgment must, accordingly, be rejected as unfounded.
75In 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 at issue 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).
76Thus, 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 in the EEA, which the General Court recalled, moreover, in paragraphs 111 and 126 of the judgment under appeal. However, contrary to what British Airways submits by its line of argument set out in paragraph 65 of the present judgment, the General Court did not, in paragraphs 118, 136 and 150 of the judgment under appeal, disregard that test by holding that merely possible, speculative or hypothetical effects were sufficient to establish the existence of qualified effects, within the meaning of the case-law referred to in the preceding paragraph of the present judgment.
77First, as regards the line of argument put forward by British Airways that the General Court considered that it was not required to assess the effects on competition in downstream markets, it must be borne in mind that, according to Article 169(2) of the Rules of Procedure of the Court of Justice, the pleas in law and legal arguments relied on in support of an appeal must identify precisely those points in the grounds of the decision of the General Court which are contested. In the present case, it should be noted that British Airways identifies in its appeal only paragraphs 114 and 115 of the judgment under appeal with the precision required by that provision. In the first of those paragraphs, the General Court merely reproduced the wording of paragraph 45 of the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), according to which the qualified effects test enables conduct whose anticompetitive effects are ‘liable to have an impact’ in the EU market to be caught. In the second of those paragraphs, the General Court cited paragraph 51 of that judgment, which states that it is sufficient to take account of the probable effects of conduct on competition in order for the requirement of foreseeability to be satisfied.
78In so far as it thus appears that, in paragraphs 114 and 115 of the judgment under appeal, the General Court merely recalled the principles set out in paragraphs 45 and 51, respectively, of the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), it does not follow from those paragraphs of the judgment under appeal that the General Court failed to verify whether the Commission had established to the requisite standard the existence of qualified effects of the conduct at issue on competition in the EEA. Accordingly, the line of argument put forward by British Airways referred to in the preceding paragraph of the present judgment is based on a misreading of the judgment under appeal.
79Second, in so far as British Airways claims that the General Court, like the Commission, failed to take account, in its analysis of competition in specific downstream goods markets, of several factors, such as those referred to in paragraph 65 of the present judgment, it should be borne in mind that the jurisdiction of the Court of Justice in the context of the examination of an appeal is limited to review of the findings of law on the pleas argued before the General Court. A party cannot, therefore, put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court since that would allow that party to bring before the Court of Justice, whose jurisdiction in appeal proceedings is limited, a wider case than that heard by 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).
80In the present case, as is apparent from paragraph 103 of the judgment under appeal, British Airways argued, inter alia, at first instance, in support of its fourth plea for annulment submitted to the General Court, that the assumed knock-on effects on transport tariffs could not be established on the basis of mere suppositions, but had to be proven, that the Commission’s reasoning depended on demonstrating qualified effects on a market other than the cartelised market and that it had to be demonstrated that the effects were substantial, immediate and foreseeable. The General Court examined those arguments in paragraphs 106 to 175 of the judgment under appeal.
81The line of argument set out in paragraph 65 of the present judgment, by contrast, constitutes a plea put forward for the first time in the present appeal. It must therefore be declared inadmissible.
82Third, in so far as British Airways claims that the decision at issue expressly states that the Commission was not required to examine the anticompetitive effects of the coordination of surcharges on the price of airfreight transport or the anticompetitive effects in downstream markets for final goods, it should be noted that that argument is directed not against the judgment under appeal but against the decision at issue and that it must, therefore, be rejected as being inadmissible (see, by analogy, judgment of 29 June 2023, TUIfly v Commission, C‑763/21 P, EU:C:2023:528, paragraph 53 and the case-law cited).
83Fourth, the line of argument that the qualified effects test cannot be satisfied by referring to merely possible, speculative or hypothetical effects does not identify the paragraphs of the judgment under appeal in which the General Court referred to such effects and therefore disregards the requirements arising from Article 169(2) of the Rules of Procedure. It follows that that line of argument is inadmissible.
84Fifth, British Airways cannot criticise the General Court in a general manner for having failed to examine whether the Commission had characterised effects having the requisite substantiality, foreseeability and immediacy, when it is apparent from paragraphs 144 to 155, 127 to 143 and 156 to 161 of that judgment that the General Court examined whether the effect on the prices of the imported goods had those characteristics in order to justify the Commission’s jurisdiction in respect of conduct which had not been adopted in the territory of the European Union or the EEA.
85It follows that the second part of the first ground of appeal is in part inadmissible and in part unfounded.
86In the light of the foregoing, the first ground of appeal must be rejected.
The second ground of appeal, alleging an error of law in the assessment of the causal link between the cartel at issue and the increase in the prices of goods imported into the EEA
Arguments of the parties
87By its second ground of appeal, British Airways submits that the General Court erred in finding that the prices of goods imported into the EEA would increase as a result of the conduct found on inbound routes.
88By the first part of that ground of appeal, British Airways submits that, in paragraph 132 of the judgment under appeal, the General Court reversed the burden of proof and distorted the clear sense of the evidence by holding that it was for it to demonstrate that a ‘waterbed effect’ was so probable as to render the effect on the prices of the imported goods unforeseeable. The General Court was also wrong, in paragraph 133 of the judgment under appeal, to impose on British Airways the burden of proving that the rates on inbound routes were sufficiently flexible to offset in good time any supra-competitive increase in surcharges by a corresponding reduction in those rates. Moreover, the General Court, for incorrect reasons, refused to take account of the evidence adduced by British Airways concerning that ‘waterbed effect’, which shows that those rates were inversely correlated with the surcharges during the relevant period.
89By the second part of that ground of appeal, British Airways criticises the General Court for failing to have regard to the rules on the burden of proof and for distorting some of the evidence by holding, in paragraph 137 of the judgment under appeal, that it was for the appellant to demonstrate that the circumstances of the present case were not conducive to the passing on of the additional costs resulting from the single and continuous infringement on inbound routes to shippers downstream and by stating, in paragraph 136 of that judgment, that it was apparent from recitals 14 and 70 of the decision at issue that the price of freight services constituted an input for freight forwarders, that is to say, a variable cost the increase of which had, in principle, the effect of increasing the marginal cost in relation to which those freight forwarders determine their own prices. Neither of the two recitals cited by the General Court concerns marginal or variable costs and nothing in the statement of reasons in the decision at issue concerning the qualified effects refers to such costs.
90By the third part of the second ground of appeal, British Airways submits that, as regards the passing on of the increase in the prices of airfreight services for shippers to the prices paid by consumers within the EEA, the General Court inferred from the evidence adduced before it findings that were entirely unfounded, ignored the evidence adduced by British Airways, and, moreover, cited, in paragraphs 139 and 141 of the judgment under appeal, recitals of the decision at issue which do not contain any relevant evidence as regards that passing on.
91By the fourth part of that ground of appeal, British Airways submits that the General Court erred in law in stating, in paragraph 140 of the judgment under appeal, that it was foreseeable for the incriminated carriers that the single and continuous infringement ‘would’ have the effect, in so far as it related to inbound routes, of increasing the price of imported goods, whereas such a conclusion was very different from that reached by the Commission, which merely found that the conduct at issue was ‘liable’ to have effects on the prices charged to consumers in the EEA.
92By the fifth part of that ground of appeal, British Airways criticises the General Court for having stated, in paragraph 130 of the judgment under appeal, that the infringement found by the Commission also included the refusal to pay commission, without taking account of the fact that it had also found that the Commission had erred in attributing liability to it for that element of the infringement.
93The Commission contends that the second ground of appeal should be rejected.
Findings of the Court
94In the first place, it should be borne in mind 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).
95That 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.
96In the present case, in paragraphs 129 to 131 of the judgment under appeal, the General Court found that the cartel concerning the fuel surcharge, the security surcharge and the refusal to pay commission amounted, as was apparent from recitals 846, 909, 1199 and 1208 of the decision at issue, to collusive horizontal-pricing behaviour, which, according to the case-law of the Court of Justice, is known to lead, in particular, to price increases resulting in poor allocation of resources to the detriment, in particular, of consumers. It therefore considered 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 found that such a refusal amounted to a concerted refusal to grant freight forwarders discounts on surcharges and thus sought to allow the incriminated carriers to ensure that pricing uncertainty, which could have arisen from competition on commission payments, ‘remained suppressed’ and thus to eliminate competition in respect of surcharges, as the Commission had noted in recitals 874 and 879 of the decision at issue.
97The General Court also noted, in paragraph 132 of the judgment under appeal, that the price of freight services consisted, as was apparent from recital 17 of the decision at issue, 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. Admittedly, the General Court added that British Airways 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 apparent from the preceding paragraph of the present judgment, that finding is preceded, in paragraphs 129 to 131 and in the first sentence of paragraph 132 of the judgment under appeal, by an analysis at the end of which the General Court inferred that it was foreseeable for the incriminated carriers that the horizontal fixing of the fuel surcharge and the security surcharge and the refusal to pay commission would lead to an increase in the total price of inbound freight services.
98Thus, it was only after analysing the decision at issue and finding that the Commission had sufficiently demonstrated that such an increase was foreseeable that the General Court examined whether British Airways had adduced evidence capable of rebutting that finding. British Airways having, in that regard, alleged the existence of a ‘waterbed effect’, the General Court found, in paragraph 133 of the judgment under appeal, that the chart annexed to British Airways’ reply to the statement of objections on which it relied in order to demonstrate that effect was in fact limited to showing a substantial negative correlation between the level of its surcharges and the level of its rates on outbound routes for the years 2001 to 2006, and did not in any way establish that it was sufficiently likely that an increase in the fuel surcharge and the security surcharge would be offset by a corresponding reduction in rates and other surcharges to such an extent that the effect on the prices of imported goods was unforeseeable. Thus, in examining whether British Airways had adduced evidence capable of rebutting that finding, based on the evidence relied on by the Commission, which it considered to be probative, the General Court complied with the case-law cited in paragraph 94 of the present judgment. Consequently, the argument put forward by British Airways alleging an unjustified reversal of the burden of proof, relied on in the context of the first part of the second ground of appeal, must be rejected as unfounded.
99Furthermore, it should be noted that, under 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 lies on points of law only.
100The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and to assess 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. The assessment of those facts and that evidence does not therefore constitute, save in the case of their distortion, a question of law subject, as such, to review by the Court of Justice in the context of an appeal (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).
101Under the guise of complaints alleging an error of law in the assessment of the various causal links and distortion of the evidence, British Airways is in fact seeking to call into question the General Court’s assessment of the facts and evidence in paragraph 133 of the judgment under appeal and asks the Court of Justice, in particular, to substitute its own assessment of the probative value of the chart annexed to its reply to the statement of objections for that carried out by the General Court in that paragraph, which, as is apparent from the case-law referred to in paragraph 100 of the present judgment, falls outside the jurisdiction of the Court of Justice in an appeal. Consequently, that part of the argument put forward in support of the first part of the present ground of appeal must be rejected as inadmissible.
102In the second place, first, the General Court did not fail to have regard to the rules on the burden of proof by holding, in paragraph 137 of the judgment under appeal, that British Airways did not adduce any evidence showing that the circumstances of the present case were not conducive to the passing on of the additional costs resulting from the single and continuous infringement on inbound routes to shippers downstream. It was only after finding, in paragraph 136 of that judgment, that the price of inbound freight services constituted an input for freight forwarders and that, as regards a variable cost, its increase had, in principle, the effect of increasing the marginal cost in the light of which those freight forwarders set their own prices that the General Court inferred, in paragraph 138 of that judgment, that it was reasonably foreseeable for the incriminated carriers that the freight forwarders would pass on such an additional cost to shippers by means of an increase in the price of freight forwarding services. Thus, after examining the influence exercised by the intervention of the freight forwarders on the causal link between the cartel at issue and the effect on the prices of imported goods, the General Court held that it was foreseeable that the additional costs would be passed on. In the context of that assessment, the General Court noted, inter alia, in paragraph 159 of the judgment under appeal, that the intervention of freight forwarders had not broken the causal chain since that intervention resulted objectively from the cartel at issue, in accordance with the normal functioning of the market. Seen in that context, paragraph 137 of the judgment under appeal can only be understood as meaning that British Airways had not adduced evidence capable of calling into question the factual evidence adduced by the Commission and that, therefore, in accordance with the case-law cited in paragraph 94 of the present judgment, the Commission had discharged its burden of proof.
103Second, the claim put forward by British Airways that the General Court made a ‘manifest error’ in finding, in paragraph 136 of the judgment under appeal, that it was apparent from recitals 14 and 70 of the decision at issue that the price of freight services represented an input for freight forwarders, constituting a variable cost, the increase of which, in principle, had the effect of increasing the marginal cost in the light of which those freight forwarders set their own prices, must be rejected. The General Court made clear, by the use of the expression ‘it is apparent’, that that finding did not consist of an identical reproduction of the wording of those recitals, but resulted from its own reading of those passages of the decision at issue. The General Court thus confined itself, in paragraph 136, to clarifying the statement of reasons for the decision at issue and to drawing certain conclusions from the evidence contained therein, without distorting it.
104In the third place, in the light of the principles recalled in paragraphs 98 and 100 of the present judgment, it must be held that the claim put forward by British Airways that the General Court disregarded the evidence adduced before it, in particular as regards the location of shippers in the country of departure, and asserted without analysis that the increase in the price of air freight services would have the effect of increasing the price of imported goods amounts to calling into question the General Court’s assessment of the evidence and thus to obtaining from the Court of Justice a fresh examination of the facts, without alleging that the General Court distorted that evidence. Consequently, that claim is inadmissible.
105In the fourth place, the General Court did not in any way substitute its own reasoning for that of the Commission by stating, in paragraph 140 of the judgment under appeal, that it was foreseeable for the incriminated carriers that the single and continuous infringement would have the effect, in so far as it related to inbound routes, of increasing the price of imported goods. That assessment of the foreseeability of the effects is in no way different from that carried out in recital 1045 of the decision at issue by the Commission, which referred, in accordance with the very wording of the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632, paragraph 45), recalled by the General Court in paragraph 114 of the judgment under appeal, to anticompetitive practices ‘liable’ to have effects on consumers within the EEA.
106In the fifth place, the claim put forward by British Airways that the General Court, in paragraph 130 of the judgment under appeal, failed to take account, when analysing the qualified effects, of its finding that the appellant could not be held liable for the infringement relating to the refusal to pay commission, is based on a confusion between the preliminary issue of the determination of the Commission’s jurisdiction in respect of conduct adopted outside the European Union or the EEA but capable of producing qualified effects in the internal market or in the EEA, and the question of attributing liability to British Airways for the single and continuous infringement referred to in the decision at issue, in its element relating to the refusal to pay commission. In paragraph 130 of the judgment under appeal, the General Court merely noted, in its analysis of the fourth plea relied on by British Airways, alleging that the Commission lacked jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services, that it was apparent from recitals 846, 909, 1199 and 1208 of the decision at issue that the conduct at issue related to the fuel surcharge, the security surcharge and the refusal to pay commission, without prejudging the participation of British Airways in that latter element of the single and continuous infringement.
107Since none of the parts of the second ground of appeal relied on by British Airways can be upheld, that ground of appeal must be rejected in its entirety.
The third ground of appeal, alleging an error of law resulting from the taking into account of the effects of the single and continuous infringement taken as a whole
Arguments of the parties
108By the third ground of appeal, British Airways submits that the General Court erred in law, in paragraphs 172 to 174 of the judgment under appeal, in taking into account, for the purposes of determining whether the qualified effects test was satisfied, the effects of the single and continuous infringement taken as a whole.
109First, British Airways criticises the General Court for concluding that the concept of a ‘single and continuous infringement’ altered the legal conditions for establishing qualified effects, whereas that concept is a procedural or evidential rule intended to alleviate the burden on the Commission to prove each particular aspect of an overall infringement.
110Second, British Airways submits that the General Court’s approach, according to which the Commission could have jurisdiction over conduct adopted in third countries where there is a link with an element of an infringement for which that institution has territorial jurisdiction, renders meaningless the strict principles governing the exercise of the Commission’s extraterritorial jurisdiction under EU competition law, since that means that, where the Commission has jurisdiction over certain aspects internal to the European Union of an international cartel, it acquires international jurisdiction over all aspects of the infringement, including those which do not have foreseeable, substantial or immediate effects on competition in the internal market of the European Union or the EEA.
111The Commission contends that the third ground of appeal should be rejected as ineffective and, in any event, unfounded.
Findings of the Court
112In so far as, by the third ground of appeal, British Airways criticises the judgment under appeal only in so far as the General Court held, in paragraphs 172 to 174 of that judgment, that the Commission was justified in examining the effects of the single and continuous infringement taken as a whole and in finding that the qualified effects test was satisfied as regards that infringement, it must be observed that, by its fourth plea for annulment submitted before the General Court, British Airways merely challenged 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.
113In that regard, the General Court found, in paragraph 162 of the judgment under appeal, that the Commission was entitled to find that the qualified effects test was satisfied as regards coordination in relation to inbound freight services taken in isolation, 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 163 to 174 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 having regard to the effects of the single and continuous infringement taken as a whole.
114In those circumstances, it must be held that the line of argument put forward by British Airways is aimed at grounds included in the judgment under appeal purely for the sake of completeness. It is in fact settled case-law that 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).
115The third ground of appeal must therefore be rejected as ineffective.
116As none of the grounds of appeal raised by British Airways has been upheld, the appeal must be dismissed in its entirety.
Costs
117In 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.
118Under 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.
119Since the Commission has applied for costs to be awarded against British Airways and the latter has been unsuccessful, the appellant 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 British Airways plc 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.