Contents
Judgment of the Court (Fifth Chamber)26 February 2026note(Appeal — Competition — Agreements, decisions and concerted practices — Market for airfreight — Decision of the European Commission finding an infringement of Article 101 TFEU, Article 53 of the Agreement on the European Economic Area and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport — Coordination of elements of the price of air freight services (fuel surcharge, security surcharge and refusal to pay commission on surcharges) — Inbound freight services — Territorial jurisdiction of the Commission — Qualified effects — Single and continuous infringement — Conduct adopted in the context of a commercial alliance — Account taken — Regulation (EC) No 1/2003 — Article 25 — Limitation period for the Commission’s powers to impose penalties — Plea based on the limitation period — Plea involving a matter of public policy)In Case C‑379/22 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 9 June 2022,Singapore Airlines Ltd, established in Singapore (Singapore),Singapore Airlines Cargo Pte Ltd, established in Singapore,represented by J.-P. Poitras, avocat, J. Ruiz Calzado, abogado, and J. Wileur, avocat,the other party to the proceedings being:European Commission, represented by A. Dawes and C. Urraca Caviedes, acting as Agents, and by C. Brown, Barrister,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 11 April 2024,after hearing the Opinion of the Advocate General at the sitting on 5 September 2024,gives the following
Judgment
1By their appeal, Singapore Airlines Ltd and Singapore Airlines Cargo Pte Ltd seek to have set aside the judgment of the General Court of the European Union of 30 March 2022, Singapore Airlines and Singapore Airlines Cargo v Commission (T‑350/17, ‘the judgment under appeal’, EU:T:2022:186), by which the General Court dismissed their action for annulment of Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 [TFEU], Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case AT.39258 – Airfreight) (‘the decision at issue’), in so far as it concerns them, and a reduction of the fine imposed on them by that decision.
Legal context
The EC-Switzerland Air Transport Agreement
2The Agreement between the European Community and the Swiss Confederation on Air Transport, signed in Luxembourg on 21 June 1999 and approved on behalf of the European Community by Decision 2002/309/EC, Euratom of the Council, and of the Commission as regards the Agreement on Scientific and Technological Cooperation, of 4 April 2002 on the conclusion of seven Agreements with the Swiss Confederation (OJ 2002 L 114, p. 1) (‘the EC-Switzerland Air Transport Agreement’), entered into force on 1 June 2002. Articles 8 and 9 of that agreement correspond, mutatis mutandis, to Articles 101 and 102 TFEU, respectively.
3Under Article 11 of that agreement:1. The provisions of Articles 8 and 9 shall be applied … by the Community institutions in accordance with Community legislation as set out in the Annex to this Agreement, taking into account the need for close cooperation between the Community institutions and the Swiss authorities.2. The Swiss authorities shall rule, in accordance with the provisions of Articles 8 and 9, on the admissibility of all agreements, decisions and concerted practices … concerning routes between Switzerland and third countries.’
4Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1) was made applicable under that agreement, with effect from 5 December 2007, by Decision No 1/2007 of the joint Community/Switzerland Air Transport Committee set up under the Agreement between the European Community and the Swiss Confederation on Air Transport of 5 December 2007 replacing the Annex to the Agreement between the European Community and the Swiss Confederation on Air Transport (OJ 2008 L 34, p. 19). On that date, it replaced Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ 1987 L 374, p. 1), which had been contained in the annex to the EC-Switzerland Air Transport Agreement since it entered into force.
The FEU Treaty
5Article 101(1) TFEU provides:‘The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:(a) directly or indirectly fix purchase or selling prices or any other trading conditions;(b) limit or control production, markets, technical development, or investment;(c) share markets or sources of supply;…’
The EEA Agreement
6Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3; ‘the EEA Agreement’) corresponds, mutatis mutandis, to Article 101 TFEU.
7Regulation No 1/2003, as amended by Council Regulation (EC) No 411/2004 of 26 February 2004 (OJ 2004 L 68, p. 1), was incorporated into the EEA Agreement by, on the one hand, Decision of the EEA Joint Committee No 130/2004 of 24 September 2004 amending Annex XIV (Competition), Protocol 21 (On the implementation of the competition rules applicable to undertakings) and Protocol 23 (Concerning the cooperation between surveillance authorities) to the EEA Agreement (OJ 2005 L 64, p. 57), which entered into force on 19 May 2005, and, on the other hand, Decision of the EEA Joint Committee No 40/2005 of 11 March 2005 amending Annex XIII (Transport) and Protocol 21 (on the implementation of competition rules applicable to undertakings) to the EEA Agreement (OJ 2005 L 198, p. 38), which entered into force on the same day.
Regulation No 1/2003
8Article 7(1) of Regulation No 1/2003 provides:‘Where the [European] Commission, acting on a complaint or on its own initiative, finds that there is an infringement of Article [101 TFEU] or of Article [102 TFEU], it may by decision require the undertakings and associations of undertakings concerned to bring such infringement to an end. For this purpose, it may impose on them any behavioural or structural remedies which are proportionate to the infringement committed and necessary to bring the infringement effectively to an end. Structural remedies can only be imposed either where there is no equally effective behavioural remedy or where any equally effective behavioural remedy would be more burdensome for the undertaking concerned than the structural remedy. If the Commission has a legitimate interest in doing so, it may also find that an infringement has been committed in the past.’
9Article 23 of that regulation, entitled ‘Fines’, states, in paragraphs 2 and 3 thereof:2.The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:(a) they infringe Article [101] or Article [102 TFEU]; ……For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year.…3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’
10Under Article 25 of that regulation:1.The powers conferred on the Commission by Articles 23 and 24 shall be subject to the following limitation periods:(a) three years in the case of infringements of provisions concerning requests for information or the conduct of inspections;(b) five years in the case of all other infringements.2. Time shall begin to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time shall begin to run on the day on which the infringement ceases.3.Any action taken by the Commission or by the competition authority of a Member State for the purpose of the investigation or proceedings in respect of an infringement shall interrupt the limitation period for the imposition of fines or periodic penalty payments. The limitation period shall be interrupted with effect from the date on which the action is notified to at least one undertaking or association of undertakings which has participated in the infringement. Actions which interrupt the running of the period shall include in particular the following:(a) written requests for information by the Commission or by the competition authority of a Member State;(b) written authorisations to conduct inspections issued to its officials by the Commission or by the competition authority of a Member State;(c) the initiation of proceedings by the Commission or by the competition authority of a Member State;(d) notification of the statement of objections of the Commission or of the competition authority of a Member State.4. The interruption of the limitation period shall apply for all the undertakings or associations of undertakings which have participated in the infringement.5. Each interruption shall start time running afresh. However, the limitation period shall expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the Commission having imposed a fine or a periodic penalty payment. That period shall be extended by the time during which limitation is suspended pursuant to paragraph 6.6. The limitation period for the imposition of fines or periodic penalty payments shall be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice.’
11Article 32(c) of that regulation provided that the latter ‘[did not] apply to air transport between Community airports and third countries’.
12That provision was deleted, with effect from 1 May 2004, by Article 3 of Regulation No 411/2004.
Background to the dispute and the decision at issue
13The background to the dispute and the decision at issue, as set out in paragraphs 1 to 59 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.
14Singapore Airlines and its subsidiary, Singapore Airlines Cargo, are air transport companies active in the market for airfreight services.
15At the time of the relevant facts in the decision at issue, they were part of a commercial alliance called WOW (‘the WOW alliance’), which also included Deutsche Lufthansa AG, SAS Cargo Group A/S and Japan Airlines International Co. Ltd.
16In 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
17On 7 December 2005, the European Commission received an application for immunity under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3), lodged by Deutsche Lufthansa and two of its subsidiaries, Lufthansa Cargo AG and Swiss International Air Lines AG. The application alleged that anticompetitive contacts were being maintained between a number of carriers with regard to elements of the price of services provided in the market for airfreight, namely the introduction of ‘fuel’ and ‘security’ surcharges and the refusal on the part of those carriers to pay the freight forwarders a commission on the surcharges (‘the refusal to pay commission’).
18On 14 and 15 February 2006, the Commission carried out unannounced inspections at the premises of a number of carriers.
19Following those inspections, a number of carriers, including Singapore Airlines and Singapore Airlines Cargo, submitted an application for immunity under the notice on immunity from fines and reduction of fines in cartel cases, referred to in paragraph 17 of the present judgment.
20On 19 December 2007, the Commission addressed a statement of objections to 27 carriers, including Singapore Airlines and Singapore Airlines Cargo, all of which subsequently submitted written observations. An oral hearing was held from 30 June to 4 July 2008.
The initial decision
21On 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 Singapore Airlines and Singapore Airlines Cargo, in respect of which no infringement was found, however, with regard to air transport between airports within the European Union and air transport on routes between airports within the European Union and Swiss airports (‘EU-Switzerland routes’).
22The 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
23By judgment of 16 December 2015, Singapore Airlines and Singapore Airlines Cargo Pte v Commission (T‑43/11, EU:T:2015:989), the General Court annulled the initial decision in so far as it concerned Singapore Airlines and Singapore Airlines 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.
24The General Court found that that decision was vitiated by a defective statement of reasons.
The decision at issue
25On 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.
26On 17 March 2017, the Commission adopted the decision at issue, which was addressed to 19 carriers, including Singapore Airlines and Singapore Airlines Cargo.
27That 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.
28In 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.
29In 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.
30In 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.
31First, in recitals 822 to 832 of the decision at issue, which make up Subsection 5.2 of that decision, headed ‘Jurisdiction of the Commission’, the Commission observed, in essence, that it would not apply, first of all, Article 101 TFEU to agreements and practices prior to 1 May 2004 concerning routes between airports within the European Union and airports outside the EEA (‘EU-third country routes’); next, Article 53 of the EEA Agreement to agreements and practices prior to 19 May 2005 concerning EU-third country routes and routes between airports in countries that are Contracting Parties of the EEA Agreement but are not EU Member States and airports in third countries (‘non-EU EEA-third country routes’); and, last, Article 8 of the EC-Switzerland Air Transport Agreement to agreements and practices prior to 1 June 2002 concerning EU-Switzerland routes. It stated, in recital 832 of that decision, that the latter decision did ‘not purport to find an infringement of Article 8 of the [EC-Switzerland Air Transport Agreement] concerning freight services on routes between Switzerland and third countries’.
32Second, in recitals 1036 to 1046 of the decision at issue, which make up Subsection 5.3.8 of that decision under the heading ‘The applicability of Article 101 of the TFEU and Article 53 of the EEA Agreement to inbound routes’, the Commission set out the grounds on which it rejected the arguments, put forward by various incriminated carriers, that it had exceeded the limits of its territorial jurisdiction under the rules of public international law by finding and penalising an infringement of those two provisions on routes from third countries to the EEA (‘inbound routes’ and, as regards freight services offered on those routes, ‘inbound freight services’).
33In particular, in recital 1045 of the decision at issue, the Commission stated that anticompetitive practices with regard to inbound freight services were ‘liable to have immediate, substantial and foreseeable effects within the EU [and the] EEA, as the increased costs of air transport to the EEA, and consequently higher prices of imported goods, are by their very nature liable to have effects on consumers in the EEA’. It added that, in the case at hand, those practices were liable to have such effects on the provision of airfreight services by other carriers within the EEA, between the different hubs in the EEA used by carriers from third countries and the airports of destination of those shipments in the EEA, to which the third-country carrier did not fly.
34Furthermore, 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.
35Subsection 5.3 of the decision at issue, relating to the application in the case at hand of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Freight Agreement, comprises recitals 833 to 1052 of that decision. First, in recital 846 of that decision, the Commission found that the incriminated carriers had coordinated their conduct or influenced price setting, ‘ultimately amounting to price fixing with regard to’ the fuel surcharge, the security surcharge and the payment of commission on surcharges to freight forwarders. In recital 861 of that decision, the Commission found that the ‘overall scheme to coordinate the pricing behaviour for [freight] services’ revealed by its investigation demonstrated the existence of a ‘complex infringement consisting of various actions which [could] be either classified as an agreement or concerted practice, within which the competitors knowingly substituted practical cooperation between them for the risks of competition’.
36Second, 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.
37Third, in recital 903 of the decision at issue, the Commission found that the anticompetitive conduct in question had the object of restricting competition at least in the European Union, the EEA and Switzerland. In recital 917 of that decision, the Commission added, in essence, that there was, therefore, no need to take into account the actual effects of that conduct.
38Fourth, in recitals 922 to 971 of that decision, the Commission examined whether the contacts within the WOW alliance (‘the WOW contacts’) could be regarded as legitimate and justified by that alliance. After noting, in recital 924 of the decision at issue, that it could not be permitted that an alliance framework was legally used as a cover for a broader anticompetitive cooperation than that which had been put in place through the implementation of the alliance agreement, it found, in recital 947 of that decision, that none of the initiatives claimed to have been taken in the context of the WOW alliance justified general price coordination within that alliance, in particular the general coordination of surcharges. It inferred therefrom, in recital 971 of that decision, that the coordination of the surcharges between the members of that alliance had been conducted outside the legitimate framework of that alliance and could not be justified by it.
39Fifth, 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.
40Sixth, 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.
41Section 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.
42In recital 1169 of that decision, the Commission found that the duration of the infringement to be taken into account in so far as concerned Singapore Airlines ran from 4 January 2000 until 14 February 2006.
43In 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).
44Articles 1, 3 and 4 of the operative part of the decision at issue are worded as follows:‘Article 1By coordinating their pricing behaviour in the provision of airfreight services on a global basis with respect to the fuel surcharge, the security surcharge and the payment of commission payable on surcharges, the following undertakings have committed the following single and continuous infringement of Article 101 [TFEU], Article 53 of [the EEA Agreement] and Article 8 of [the EC-Switzerland Air Transport Agreement] as regards the following routes and for the following periods.(1) The following undertakings have infringed Article 101 [TFEU] and Article 53 of [the] EEA Agreement as regards [intra-EEA routes], for the following periods:…(r) Singapore Airlines Cargo … from 1 July 2001 until 14 February 2006;(s) Singapore Airlines … from 4 January 2000 until 14 February 2006.(2) The following undertakings infringed Article 101 [TFEU] as regards [EU-third country routes], for the following periods:…(q) Singapore Airlines Cargo … from 1 May 2004 until 14 February 2006;(r) Singapore Airlines … from 1 May 2004 until 14 February 2006.(3) The following undertakings infringed Article 53 of the EEA Agreement as regards [non-EU EEA-third country routes], for the following periods:…(q) Singapore Airlines Cargo … from 19 May 2005 until 14 February 2006;(r) Singapore Airlines … 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:…(r) Singapore Airlines Cargo … from 1 June 2002 until 14 February 2006;(s) Singapore Airlines … from 1 June 2002 until 14 February 2006.…Article 3For the single and continuous infringement referred to in Article 1 …, the following fines are imposed:…(s) Singapore Airlines Cargo … and Singapore Airlines …: EUR 74800000.…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
45By application lodged at the Registry of the General Court on 1 June 2017, Singapore Airlines and Singapore Airlines Cargo brought an action for annulment of the decision at issue in so far as it concerns them and, in the alternative, for a reduction of the fine imposed on them.
46In support of that action, Singapore Airlines and Singapore Airlines Cargo relied on five pleas for annulment and one plea seeking a reduction of the fine.
47Among those pleas, the first alleged errors of law and fact in connection with the finding of a single and continuous infringement, in particular in so far as the Commission had found in the decision at issue that there had been an infringement covering inbound routes. Furthermore, by their second plea, which alleged errors of law and fact in connection with the finding of the aspect of the infringement relating to the refusal to pay commission on surcharges, Singapore Airlines and Singapore Airlines Cargo complained, inter alia, that the Commission had failed to establish, in the decision at issue, that the contacts relating to the refusal to pay commission constituted a restriction of competition by object. In addition, by their third plea, they claimed that the Commission had erred in law and in its assessment of the facts in its analysis of the conduct within the WOW alliance.
48By the judgment under appeal, the General Court rejected all the pleas for annulment as well as the claim for a reduction of the fine. It consequently dismissed the action.
Forms of order sought by the parties to the appeal
49By their appeal, Singapore Airlines and Singapore Airlines Cargo claim that the Court should:– set aside the judgment under appeal in whole or in part;– annul the decision at issue in its entirety or, in the alternative, in so far as:– Article 1(2)(q) and (r) and Article 1(3)(q) and (r) of that decision are based on the Commission having jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services and, consequently, reduce the fine to EUR 64600000 or to such other amount as the Court of Justice deems appropriate,– that decision finds that conduct adopted in the context of the WOW alliance forms part of a single and continuous infringement and, accordingly, further reduce the fine by 15% on the basis of the General Court’s analysis of limited participation or any other basis that the Court of Justice deems appropriate, and/or– the decision at issue finds that the conduct linked to the refusal to pay commission forms part of a single and continuous infringement and, consequently, further reduce the fine by 15% in accordance with the approach to limited participation taken in both the decision at issue and the judgment under appeal or by such other amount as the Court of Justice deems appropriate;– annul Article 1(1)(r) and (s) and Article 1(4)(r) and (s) of the decision at issue and further reduce the fine by 15%, applying the same methodology as that used by the General Court to reduce the respective fines imposed in the cases that gave rise to the judgments of 30 March 2022, Japan Airlines v Commission (T‑340/17, EU:T:2022:181), and of 30 March 2022, Cathay Pacific Airways v Commission (T‑343/17, EU:T:2022:184);– order the Commission to pay the costs incurred by the appellants before the Court of Justice and the remaining two thirds of the costs incurred by the appellants before the General Court.
50The Commission contends that the Court should, principally, dismiss the appeal and order Singapore Airlines and Singapore Airlines Cargo to pay the costs and, in the alternative, if the appeal is upheld, refer the case back to the General Court and reserve the costs.
The appeal
51In support of their appeal, Singapore Airlines and Singapore Airlines Cargo raise four grounds of appeal. The first ground of appeal alleges errors of law in the assessment of the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services. The second ground of appeal alleges errors of law in the assessment of the conduct linked to the WOW alliance. The third ground of appeal alleges errors of law in the classification of the contacts relating to the payment of commission on surcharges as a restriction of competition ‘by object’. By their fourth ground of appeal, Singapore Airlines and Singapore Airlines Cargo criticise the General Court for not raising of its own motion the plea based on the limitation period for the Commission’s powers to impose penalties in respect of an infringement concerning intra-EEA routes and EU-Switzerland routes.
The first ground of appeal, concerning the Commission’s jurisdiction to apply Article 101 TFEU with regard to inbound routes
52The first ground of appeal consists of seven parts. By the first part, Singapore Airlines and Singapore Airlines Cargo submit that the General Court misinterpreted their plea concerning the Commission’s jurisdiction in respect of inbound routes and, therefore, distorted their application initiating proceedings. By the second part, they claim that the General Court erred in law by treating the test based on the qualified effects of anticompetitive practices in the European Union (‘the qualified effects test’) as a stand-alone and sufficient test for assessing the Commission’s jurisdiction in respect of inbound routes. By the third part, they complain that the General Court erred in its analysis of the anticompetitive effects of the conduct at issue. By the fourth part, they submit that the General Court erred in law in finding that the Commission was not required to define the relevant market to assess its jurisdiction under Article 101(1) TFEU. By the fifth part, which it is appropriate to examine last, they claim that the General Court erred in law in finding that the Commission could establish its jurisdiction over inbound freight services on the basis of the effects of the single and continuous infringement taken as a whole. By the sixth part, they submit that the General Court erred in law in finding that there were immediate, substantial and foreseeable qualified effects. Last, the seventh part alleges that the General Court substituted its own assessment of the qualified effects for that of the Commission.
The first part, alleging that the General Court misinterpreted the plea relating to the Commission’s jurisdiction with regard to inbound routes and distorted the application initiating proceedings
–Arguments of the parties
53Singapore Airlines and Singapore Airlines Cargo claim that the General Court misinterpreted the plea which they had raised before it concerning the Commission’s jurisdiction, by assessing that jurisdiction in the light of public international law, not Article 101(1) TFEU, and thus distorted their arguments to the effect that the Commission did not have jurisdiction over conduct adopted outside the EEA.
54They submit that, even though they maintained, in support of their action for annulment of the decision at issue, that the Commission had jurisdiction only in the event of the sale of a product within the territory of the European Union or the EEA and could not, therefore, have jurisdiction in respect of agreements or concerted practices described in the decision at issue as involving restrictions of competition on the markets for the sale of airfreight services from airports outside the European Union or the EEA, the General Court did not examine the Commission’s jurisdiction under Article 101(1) TFEU, but focused on the Commission’s jurisdiction in the light of public international law. They add that compliance with public international law is a necessary but not sufficient condition for the Commission to have jurisdiction over conduct adopted outside the European Union or the EEA.
55The Commission contends that this part is unfounded.
–Findings of the Court
56In essence, Singapore Airlines and Singapore Airlines Cargo claim that the General Court did not assess their arguments as set out in the second part of the first plea in the application initiating proceedings before the General Court, relating to the Commission’s lack of jurisdiction with regard to inbound routes, which led it to examine the Commission’s jurisdiction only in the light of public international law, without ascertaining whether the Commission had jurisdiction in the light of Article 101(1) TFEU.
57It should be noted that, in paragraph 30 of their application initiating proceedings, Singapore Airlines and Singapore Airlines Cargo maintained that the key features of the freight markets were that the actual sale of those services ‘invariably takes place at the airport of origin’ and that those markets ‘are “unidirectional”’, services to airports in the European Union constituting ‘product markets distinct from those for air [freight] services outbound to third countries, because purchasers of [freight] services do not buy return trips for their shipments’. Furthermore, while claiming, in paragraph 33 of that application, that the test for the Commission’s territorial jurisdiction based on the place in which the anticompetitive practices are implemented (‘the implementation test’) serves to determine whether an agreement or concerted practice has the object or effect of restricting competition within the internal market, they added, in paragraph 34 of that application, that ‘even if a qualified effects test is an alternative basis for establishing jurisdiction under Article 101 [TFEU], however, the Commission has not [provided] the necessary factual [evidence] to support jurisdiction on that basis’. Accordingly, it is apparent from the very wording of that application that Singapore Airlines and Singapore Airlines Cargo stated in their pleadings that the qualified effects test could justify the Commission’s jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement. They claimed, however, that it was not possible to apply that principle to inbound routes, without sufficient evidence to establish the existence of qualified effects of the conduct at issue.
58Consequently, by holding, in paragraph 95 of the judgment under appeal, that Singapore Airlines and Singapore Airlines Cargo submitted, in essence, that the Commission, having failed to provide the necessary factual evidence to support jurisdiction on the basis of the qualified effects test, could not derive from that test jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes, and by examining, in order to assess the Commission’s jurisdiction in respect of inbound routes, whether the Commission had established to the requisite legal standard that the qualified effects test was satisfied, the General Court did not in any way distort the arguments of Singapore Airlines and Singapore Airlines Cargo, as recalled in the preceding paragraph of the present judgment, to which it responded in the judgment under appeal.
59Therefore, the first part of the first ground of appeal must be rejected as unfounded.
The second part, alleging that the General Court erred in law in finding that the qualified effects test was a stand-alone and sufficient test for assessing the Commission’s jurisdiction with regard to inbound routes
–Arguments of the parties
60Singapore Airlines and Singapore Airlines Cargo complain that the General Court established the qualified effects test as a stand-alone and sufficient test for assessing the Commission’s jurisdiction under Article 101(1) TFEU, even though that approach does not reflect the limits imposed by the very wording of that article on that jurisdiction to penalise conduct on markets outside the European Union.
61They submit that the Commission thus declined to make findings with regard to the anticompetitive effects of the conduct at issue, stating explicitly that it would make no assessment of those effects, and declared that it had jurisdiction to assess conduct linked to pricing on markets outside the EEA, on the ground that such conduct satisfied the implementation test or the qualified effects test. According to the appellants, the latter test, on which the General Court relied exclusively, does not replace the assessment of the effects of that conduct on competition in the internal market, which are distinct from potential price increases on that market that might result indirectly from a restriction of competition outside that market.
62Furthermore, the appellants claim that, while demonstrating anticompetitive effects requires the Commission to define the relevant market, examine in detail the relevant economic and legal context and identify the counterfactual scenario, the General Court’s interpretation of the qualified effects test exempts the Commission from conducting any analysis on those points.
63The Commission contends that the second part should be rejected.
–Findings of the Court
64In the first place, it should be noted that, as Singapore Airlines and Singapore Airlines Cargo submit, the General Court stated, in paragraph 114 of the judgment under appeal, that where conduct had been found by the Commission, as in the present case, to reveal a degree of harmfulness to competition in the internal market or within the EEA such that it could be classified as a restriction of competition ‘by object’ within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement, the application of the qualified effects test cannot require the demonstration of the actual effects which classification of conduct as a restriction of competition ‘by effect’ within the meaning of those provisions presupposes.
65Similarly, it stated, in paragraph 118 of that judgment, that interpreting the qualified effects test as requiring proof of the actual effects of the conduct at issue even where there is a restriction of competition ‘by object’, would amount to making the Commission’s jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement subject to a condition which has no basis in the wording of those provisions.
66The General Court inferred, in paragraph 119 of that judgment, that Singapore Airlines and Singapore Airlines Cargo could neither (i) validly claim that the Commission erred in finding that the qualified effects test was satisfied, even though it stated, in recitals 917, 1190 and 1277 of the decision at issue, that it was not required to make an assessment of the anticompetitive effects of the conduct at issue in the light of the anticompetitive object thereof, nor (ii) deduce from those recitals that the Commission did not carry out any analysis of the effects produced by that conduct in the internal market or within the EEA for the purposes of applying that test.
67However, as the grounds set out in the second place in paragraph 119 already state, it cannot be inferred from those paragraphs disputed by Singapore Airlines and Singapore Airlines Cargo 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.
68It is in fact clear from an overall reading of paragraphs 114 to 127 of the judgment under appeal that, in the disputed paragraphs, the General Court merely concerned itself with rejecting the line of argument, summarised in paragraph 95 of that judgment, which Singapore Airlines and Singapore Airlines Cargo had submitted. Thus, in those paragraphs, the General Court set out the reasons why Singapore Airlines and Singapore Airlines Cargo were wrong to maintain that the statement made by the Commission, in the grounds of the decision at issue relating, in respect of recital 917 thereof, to the classification of the restriction of competition at issue and, in respect of recitals 1190 and 1277 thereof, to the calculation of the fine, that it was not necessary to demonstrate actual anticompetitive effects given that the anticompetitive object of the conduct complained of had been established, meant that the Commission had, on account of that anticompetitive object, failed to assess whether that conduct had produced the qualified effects required to establish the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services.
69On the one hand, by essentially replying that the qualified effects test, which serves as the basis of the Commission’s extraterritorial jurisdiction, is separate from the question whether the cartel at issue can be classified as a restriction of competition, within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement, the General Court did not err in law. As the Advocate General also observes in point 42 of his Opinion, the qualified effects test, which can serve as the basis under public international law for the extraterritorial application, by the Commission, of EU and EEA competition rules, is not the same as the substantive test relating to the restriction of competition, by object or by effect, within the internal market of the European Union or the EEA, to which the Commission’s jurisdiction to find and penalise, under EU law, an infringement of those competition rules is subject.
70On 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 107 to 162 of the judgment under appeal concerning the coordination in relation to inbound freight services taken in isolation, and in paragraphs 163 to 177 of that judgment concerning the single and continuous infringement taken as a whole.
71In those circumstances, Singapore Airlines and Singapore Airlines Cargo misread the judgment under appeal when they submit that the General Court considered that it was possible, for the purpose of establishing, on the basis of the qualified effects test, the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to conduct adopted outside the territory of the EEA, to dispense with demonstrating such effects where that conduct may be characterised as a restriction of competition by object. The line of argument set out in paragraph 61 of the present judgment must, accordingly, be rejected as unfounded.
72In the second place, as regards the line of argument set out in paragraph 62 of the present judgment, which is based on the rules of evidence associated with demonstrating a restriction of competition by effect for the purpose of applying the substantive test for a restriction of competition within the internal market of the European Union or the EEA, within the meaning of Article 101(1) TFEU and Article 53 of the EEA Agreement, it should be noted that, in so far as Singapore Airlines and Singapore Airlines Cargo complain that the General Court found that the Commission was not required to define the relevant market, that line of argument is, in essence, identical to that put forward in the third part of the first ground of appeal and will therefore be examined below. In so far as, by that line of argument, Singapore Airlines and Singapore Airlines Cargo claim that the General Court’s interpretation of the qualified effects test in the judgment under appeal has the effect of exempting the Commission from conducting any detailed examination of the actual effects of the conduct at issue, it should be noted that, for the reasons set out in paragraph 69 of the present judgment, the demonstration of qualified effects for the purpose of determining the Commission’s extraterritorial jurisdiction under public international law does not follow the same evidentiary rules as those applicable to demonstrating that conduct satisfies the tests laid down in Article 101 TFEU and Article 53 of the EEA Agreement for classification as a restriction of competition, ‘by object’ or ‘by effect’, within the internal market of the European Union or the EEA.
73Singapore Airlines and Singapore Airlines Cargo rely on requirements that do not concern the demonstration of qualified effects, but rather, exclusively, the analysis of the anticompetitive effects of an agreement for the purpose of determining whether the substantive test of restriction of competition, by object or by effect, is satisfied.
74It follows that that line of argument is unfounded.
75Consequently, the second part of the first ground of appeal must be rejected as unfounded.
The third part, alleging that the General Court erred in its analysis of the anticompetitive effects of the conduct at issue
–Arguments of the parties
76Singapore Airlines and Singapore Airlines Cargo submit that, after stating in paragraph 114 of the judgment under appeal that an analysis of anticompetitive effects was not necessary, the General Court nevertheless carried out such an analysis in paragraph 126 of that judgment, and that that analysis is incorrect for the following reasons.
77First, by finding that the conduct at issue was liable to have an impact in the internal market in so far as freight forwarders were likely to pass on price increases to their own customers, that is to say, shippers, who could be established in that market, the General Court substituted a new legal basis for that of the decision at issue, according to which the Commission expressly stated, in recital 917 thereof, that the case was based on the anticompetitive object of the conduct in question and that it did not therefore carry out any assessment of the anticompetitive effects.
78Second, Singapore Airlines and Singapore Airlines Cargo again submit that the analysis of effects under the qualified effects test is no substitute for the evidence-based assessment required to establish anticompetitive effects under Article 101(1) TFEU.
79Third, they maintain that the introduction of a new assessment of anticompetitive effects in the internal market without giving them the opportunity to comment infringes their rights of defence.
80Fourth, they claim that the restrictive effects on competition between freight forwarders, identified by the General Court in paragraph 126 of the judgment under appeal, are inherently unlikely, since, if all freight forwarders are affected in the same way by the same price increase, competition between them is not restricted. In the absence of any investigation by the Commission or the General Court of how freight forwarder markets actually operate, the grounds of the judgment under appeal relating to those effects are based on an insufficient examination of the facts and are vitiated by an error in the legal characterisation.
81The Commission contends that the third part of the first ground of appeal is unfounded.
–Findings of the Court
82In the first place, it is, admittedly, clear from the case-law that the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings under Articles 101 and 102 TFEU, which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the applicant at first instance and taking into account all the elements submitted by the latter. However, in the context of that review, the Courts of the European Union may in no circumstances substitute their own reasoning for that of the author of the contested act (judgment of 4 July 2024, Westfälische Drahtindustrie and Pampus Industriebeteiligungen v Commission, C‑70/23 P, EU:C:2024:580, paragraph 38 and the case-law cited).
83The 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).
84However, 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).
85In the present case, it is apparent from the General Court’s findings in paragraphs 46 and 104 of the judgment under appeal that the first ground on which the Commission relied in recital 1045 of the decision at issue, in order to find that the qualified effects test was satisfied in the present case, relates to the ‘increased costs of air transport to the EEA, and consequently [to the] higher prices of imported goods, [which were] by their very nature liable to have effects on consumers in the EEA’ (‘the effect on the prices of imported goods’), a ground to which the General Court referred as ‘the effect at issue’.
86As regards the factors referred to in the judgment under appeal in order to establish the relevance of the effects of the coordination in relation to inbound freight services, it is apparent, in particular, from paragraph 124 of that judgment that the General Court relied on recitals 14, 17 and 70 of the decision at issue and on the parties’ replies to the measures of organisation of procedure that it had taken in order, inter alia, to clarify the role of freight forwarders with regard to those services. The General Court thus noted, in that paragraph, that the carriers sold their freight services exclusively or almost exclusively to freight forwarders and that, as regards those services, the sale took place at the origin of the routes in question, outside the EEA, where those freight forwarders were established.
87In addition, in paragraphs 131 to 134, 137 and 140 of the judgment under appeal, the General Court again referred to recitals 14, 17 and 70 of the decision at issue and also referred to the reasoning contained in recitals 846, 874, 879, 899, 909, 1031, 1199 and 1208 of that decision, by which the Commission described the nature of the conduct at issue, which it classified as horizontal price-fixing relating to the fuel surcharge, the security surcharge and the refusal to pay commission.
88It was therefore on the basis of an overall reading of the recitals of the decision at issue dedicated to the nature of the conduct at issue, to the characteristics of the provision and pricing of airfreight services, to the role of freight forwarders and to the impact of an increase in surcharges on the cost of freight services and, subsequently, on the cost of imported goods, that the General Court held, in paragraph 178 of the judgment under appeal, that the Commission had established to the requisite standard that it was foreseeable that the conduct at issue would produce a substantial and immediate effect in the EEA.
89However, first, in holding, in paragraph 126 of the judgment under appeal, that, ‘provided that the freight forwarders pass any additional costs resulting from the cartel at issue on to the price of their service packages, it is in particular on competition that occurs between freight forwarders in order to attract those shippers as customers that the single and continuous infringement, in so far as it concerns inbound routes, is liable to have an impact and, consequently, it is in the internal market or within the EEA that the effect at issue is liable to materialise’, the General Court did not rely on a factual analysis of the cartel at issue that did not appear in the decision at issue. The fact that the factors taken into account in that paragraph by the General Court were not expressly referred to by the Commission in the grounds of that decision devoted to establishing its territorial jurisdiction cannot reverse that finding, having regard to the case-law recalled in paragraph 83 of the present judgment. That in fact requires only that the General Court’s assessment concern the assessments contained in the act under its review. Furthermore, as is clear from paragraphs 104 and 120 of the judgment under appeal, the first sentence of recital 1045 of the decision at issue contained, albeit succinctly, an assessment of the consequences of the conduct at issue, with regard to the total price of freight services, that were liable to result from the cartel at issue, taking into account the intervention of freight forwarders. It follows that the analysis carried out by the General Court in paragraph 126 of the judgment under appeal relates to the assessment carried out in the decision at issue, corroborating the findings made by the Commission in that decision. In addition, that analysis is intended to respond to the arguments put forward by Singapore Airlines and Singapore Airlines Cargo which, as the General Court noted in paragraphs 121 and 122 of that judgment, maintained that the effect at issue was irrelevant, on the ground, first, that it related to economic harm rather than a restriction of competition and, second, that it took place only in third countries where the freight forwarders were established.
90Second, for the reasons set out in paragraphs 69 and 72 of the present judgment, the line of argument put forward by Singapore Airlines and Singapore Airlines Cargo to the effect that the General Court substituted the analysis of the qualified effects for the analysis required to establish anticompetitive effects under Article 101(1) TFEU and Article 53 of the EEA Agreement is unfounded.
91Third, as regards the complaint based on an alleged infringement of the rights of the defence on account of the General Court’s introduction of a new assessment of the anticompetitive effects of the cartel at issue in the internal market, without Singapore Airlines and Singapore Airlines Cargo having been given the opportunity to comment, it is sufficient to note that, as stated in paragraph 88 of the present judgment, the General Court relied, in the judgment under appeal, on factors, circumstances and criteria that were already set out in the relevant recitals of the decision at issue. It follows that Singapore Airlines and Singapore Airlines Cargo cannot validly rely on an infringement of their rights of defence, since, contrary to what they claim, the reasoning in the judgment under appeal was not substituted for the reasoning set out in the decision at issue.
92Fourth, in so far as Singapore Airlines and Singapore Airlines Cargo again call into question the General Court’s finding, in paragraph 126 of the judgment under appeal, that the single and continuous infringement, in so far as it concerns inbound routes, is liable to have an impact on competition that occurs between freight forwarders, it should be recalled that, in accordance with the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is to be limited to points of law.
93The General Court, therefore, alone has jurisdiction to establish and assess the relevant facts and to evaluate the evidence. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. 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).
94Under the guise of an allegation of a manifest error of assessment in the examination of the facts and an error of law in the legal characterisation of those facts, Singapore Airlines and Singapore Airlines Cargo are in fact seeking to call into question the assessment of the facts and evidence made by the General Court in paragraphs 124 to 127 of the judgment under appeal, without alleging distortion of those facts and that evidence. The line of argument set out in paragraph 80 of the present judgment is, consequently, inadmissible.
95In the light of the foregoing considerations, the third part of the first ground of appeal must be rejected as in part inadmissible and in part unfounded.
The fourth part, alleging that the General Court erred in law by exempting the Commission from defining the relevant market in order to assess its jurisdiction
–Arguments of the parties
96By the fourth part of the first ground of appeal, Singapore Airlines and Singapore Airlines Cargo criticise the General Court for finding that the Commission was not required to define the relevant market in order to assess its jurisdiction under Article 101(1) TFEU. Thus, while acknowledging, in paragraph 329 of the judgment under appeal, the importance of defining the market in order to assess the Commission’s jurisdiction, the General Court considered that such definition was not necessary in the present case on the incorrect ground that Singapore Airlines and Singapore Airlines Cargo had not claimed before it that such definition was necessary, whereas, in their application initiating proceedings, they had clearly criticised the lack of any proper definition of the relevant market in the decision at issue.
97The Commission disputes the arguments put forward by Singapore Airlines and Singapore Airlines Cargo, contending, inter alia, that paragraph 329 of the judgment under appeal does not in any way concern the Commission’s jurisdiction as regards inbound freight services.
–Findings of the Court
98It should be noted at the outset that, as the Commission submits, this complaint, which relates to paragraph 329 of the judgment under appeal, is aimed at grounds of that judgment that concern the characterisation of a single and continuous infringement, not the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services. The complaint must therefore be rejected as ineffective, since it cannot in any event vitiate the reasoning used by the General Court in the judgment under appeal for the purpose of assessing the Commission’s jurisdiction under Article 101 TFEU.
99To that extent, the line of argument made by Singapore Airlines and Singapore Airlines Cargo that the General Court erred in finding, in paragraph 329 of the judgment under appeal, that they had not claimed that it was necessary to define the relevant market, cannot, even if it were accepted as valid, have any effect on the lawfulness of the judgment under appeal.
100Under the second sentence of Article 170(1) of the Rules of Procedure of the Court of Justice, the subject matter of the proceedings before the General Court may not be changed in the appeal. The jurisdiction of the Court of Justice in an appeal is confined to a review of the findings of law on the pleas and arguments debated before the General Court. A party cannot therefore put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court, since that would amount to allowing that party to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court (judgments of 14 October 2010, Deutsche Telekom v Commission, C‑280/08 P, EU:C:2010:603, paragraph 34, and of 27 June 2024, Biogaran v Commission, C‑207/19 P, EU:C:2024:553, paragraph 52 and the case-law cited).
101Consequently, the fourth part of the first ground of appeal must be rejected.
The sixth part, alleging that the General Court erred in law in finding that there were immediate, substantial and foreseeable qualified effects
–Arguments of the parties
102Singapore Airlines and Singapore Airlines Cargo submit that the General Court erred in law in finding that there were immediate, substantial and foreseeable effects under the qualified effects test. They submit that, although the decision at issue contains no analysis in that regard, the General Court attempted to remedy that failure to state reasons by providing its own justification as to why the qualified effects test was satisfied, but its analysis is incorrect.
103The appellants claim that, according to the case-law, it is foreseeable that conduct will have immediate or direct effects in the EEA only if the scope of the conduct covers the EEA, if the conduct affects competitors in the EEA or if the conduct concerns a market that is global. In the present case, since the price coordination involves competitors and customers established outside the EEA, it cannot have direct and foreseeable effects in the EEA. Moreover, the General Court itself acknowledged, in paragraph 120 et seq. of the judgment under appeal, that any effects in the EEA of the conduct at issue could only be indirect.
104They add that the General Court’s attempted justification, based on there being a causal link stemming from the foreseeability of freight forwarders passing on price increases to shippers, relies on a concept which, having been developed in the law on liability, is unsuitable for determining the limits of the Commission’s territorial jurisdiction in competition matters. In any event, the finding in the judgment under appeal that there is a causal link in the present case is vitiated by a failure to state reasons, since the finding in paragraph 158 of the judgment under appeal that the intervention of freight forwarders results from the ‘normal functioning of the market’ is not supported by any evidence.
105In addition, the appellants submit that the General Court reversed the burden of proving the foreseeable nature of the effects, in particular by holding, in paragraph 134 of the judgment under appeal, that Singapore Airlines and Singapore Airlines Cargo had not demonstrated that a ‘waterbed effect’ was so probable as to render the effect at issue unforeseeable, and, in paragraph 138 of that judgment, that they had not put forward any evidence demonstrating that the circumstances of the present case were not conducive to passing on the additional costs resulting from the single and continuous infringement on inbound routes to shippers downstream.
106They add that the reasoning in the judgment under appeal as regards the substantial nature of the effects is equally open to criticism, in so far as the General Court merely explained, in paragraphs 151 and 152 of that judgment, that the surcharges represented during the infringement period a significant proportion of the total price of freight services, assessed at 14.5%, whereas it is common ground that the freight forwarders were not established in the EEA and that, as regards shippers established in the EEA, the judgment under appeal contains no analysis of whether freight services represented a significant proportion of the costs incurred by the latter.
107Last, Singapore Airlines and Singapore Airlines Cargo claim that neither the decision at issue nor the judgment under appeal took account of the economic evidence provided by them during the administrative procedure.
108The Commission contends that this part is unfounded.
–Findings of the Court
109In the first place, it should be recalled that the qualified effects test, like the test based on the place in which anticompetitive practices are implemented, pursues the objective of preventing conduct which, while not adopted within the European Union – or, as the case may be, within the EEA – has anticompetitive effects ‘liable’ to have an impact on the EU or EEA markets. The qualified effects test thus allows the application of EU or EEA competition law to be justified under public international law when it is foreseeable that the conduct in question will have an immediate and substantial effect in the European Union or in the EEA. In that regard, it is sufficient to take account of the probable effects of conduct on competition in order for the requirement of foreseeability to be satisfied. Furthermore, it is sufficient that the conduct in question is ‘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).
110Thus, as Singapore Airlines and Singapore Airlines Cargo maintain, in order to establish that the qualified effects test has been satisfied, the Commission must establish that the practices concerned have foreseeable, immediate and substantial effects in the European Union or, as in the present case, in the EEA, which criteria the General Court recalled, moreover, in paragraphs 108 and 128 of the judgment under appeal. However, contrary to what Singapore Airlines and Singapore Airlines Cargo claim by way of their line of argument set out in the present part of their first ground of appeal, the General Court did not, in paragraphs 121 to 127 of the judgment under appeal, depart from that test by considering that only indirect effects were sufficient to characterise the existence of qualified effects, for the purposes of the case-law recalled in the preceding paragraph of the present judgment.
111As is clear from an overall reading of paragraphs 103, 104, 107 and 120 to 128 of the judgment under appeal, paragraph 120 is among the paragraphs relating to the General Court’s assessment of the relevance of 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 had been satisfied in the case at hand. As recalled in paragraph 85 of the present judgment, that ground was based on the effect on the prices of imported goods, which Singapore Airlines and Singapore Airlines Cargo claimed was not amongst the effects produced by the conduct in question which the Commission was entitled to take into account for the purposes of applying the qualified effects test.
112Since paragraphs 120 to 127 of the judgment under appeal do not relate to the question whether that effect on the prices of imported goods had the required foreseeability, substantiality and immediacy, it cannot be held that, in those paragraphs, the General Court considered that indirect effects were sufficient to characterise the existence of qualified effects within the EEA. Being thus based on a misreading of the judgment under appeal, the first part of the line of argument put forward in support of the present part of the ground of appeal must be rejected as unfounded.
113In the second place, in so far as Singapore Airlines and Singapore Airlines Cargo dispute whether there actually was an effect on the prices of imported goods, as set out in those paragraphs of the judgment under appeal, it should be recalled that, in accordance with paragraph 92 of the present judgment and the case-law referred to in paragraph 93 thereof, an appeal is to be limited to points of law.
114In the present case, Singapore Airlines and Singapore Airlines Cargo claim, in essence, that the price coordination involved competitors and customers established outside the internal market or the EEA, which prevents the possibility, in the present case, of finding that there were effects on which the Commission could rely for the purposes of applying the qualified effects test.
115In doing so, Singapore Airlines and Singapore Airlines Cargo challenge the findings made by the General Court in paragraphs 124 to 127 of the judgment under appeal. However, in those paragraphs, the General Court confined itself to setting out and assessing the facts, as these were apparent from recitals 14, 17 and 70 of the decision at issue and from the parties’ replies to the measures of organisation of procedure that the General Court had adopted, for the sole purpose of ascertaining whether the effect on the prices of imported goods – on which the Commission had relied as a ground allowing it to apply the qualified effects test – had been established, without effecting any kind of legal classification of those facts. In fact, as the General Court stated, inter alia, in paragraph 128 of the judgment under appeal, it is only thereafter that it determined whether that effect could fall under the concept of ‘qualified effects’, for the purposes of the case-law cited in paragraph 109 of the present judgment.
116It is therefore clear that, by way of that line of argument, Singapore Airlines and Singapore Airlines Cargo are asking that the Court of Justice carry out a fresh assessment of the facts already assessed by the General Court in paragraphs 124 to 127 of the judgment under appeal, which falls outside the scope of the jurisdiction on appeal of the Court of Justice, in accordance with the case-law cited in paragraph 100 of the present judgment, since no distortion of those facts has been raised. That line of argument must consequently be rejected as inadmissible.
117In the third place, in so far as Singapore Airlines and Singapore Airlines Cargo claim that neither the decision at issue nor the judgment under appeal took account of the economic evidence provided by Singapore Airlines and Singapore Airlines Cargo and by other air carriers during the administrative procedure, it should be noted that that line of argument, to the extent that it is directed not against the judgment under appeal, but rather the decision at issue, must be rejected as inadmissible (see, by analogy, judgment of 29 June 2023, TUIfly v Commission, C‑763/21 P, EU:C:2023:528, paragraph 53 and the case-law cited). To the extent that it is directed against the judgment under appeal, it is sufficient to recall that it is for the General Court to assess the evidence adduced before it and that, in the present case, it is apparent from paragraph 138 of the judgment under appeal that, when the General Court carried out that assessment, it noted that Singapore Airlines and Singapore Airlines Cargo had not put forward any evidence demonstrating that the circumstances of the present case were not conducive to passing on the additional costs resulting from the single and continuous infringement on inbound routes to shippers downstream.
118In the fourth place, in so far as, by that line of argument, as set out in paragraphs 102 to 107 of the present judgment, the intention of Singapore Airlines and Singapore Airlines Cargo is to call into question the foreseeable and substantial nature of those effects, for the purposes of the case-law cited in paragraph 109 of the present judgment, it should be observed that the question whether the effect on the prices of imported goods was, in particular, foreseeable and substantial, as required by that case-law, was examined by the General Court in paragraphs 129 to 144 and paragraphs 145 to 155 of the judgment under appeal, respectively.
119As regards, first, the foreseeable nature of the effect on the prices of goods imported into the EEA, the General Court noted, in paragraphs 131 to 133 of the judgment under appeal, that the fuel surcharge, the security surcharge and the refusal to pay commission constituted, as was apparent from recitals 846, 909, 1199 and 1208 of the decision at issue, collusive horizontal price-fixing behaviour, in respect of which, according to the case-law of the Court of Justice, it is established that it leads inter alia to price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers, and it was therefore 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. It added that, as was apparent from recitals 874, 879 and 899 of the decision at issue, the refusal to pay commission was liable to reinforce such an increase, since it amounted to a concerted refusal to grant freight forwarders rebates on surcharges, by which the incriminated carriers ‘ensured’ that pricing uncertainty, which could have arisen from competition on commission payments, ‘remained suppressed’ and thus aimed to eliminate competition in respect of surcharges.
120The General Court also noted, in paragraph 134 of the judgment under appeal, that, as was apparent from recital 17 of that decision, the price of freight services is made up 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.
121The General Court also examined, in paragraphs 136 to 139 of the judgment under appeal, whether it was foreseeable for the incriminated carriers that freight forwarders would pass on that increase to their own customers, namely shippers, through an increase in the price of freight-forwarding services. It considered that such an increase was ‘reasonably foreseeable’, the price of freight services being, for freight forwarders and as was apparent, in essence, from recitals 14 and 70 of that decision, a variable cost, the increase in which, in principle, has the effect of increasing the marginal cost in relation to which the freight forwarders determine their own prices. In paragraphs 140 and 141 of that judgment, it also found that, as was apparent from recitals 70 and 1031 of that decision, ‘the cost of goods the integrated transportation of which is generally organised by freight forwarders on behalf of shippers incorporates the price of freight-forwarding services, and in particular the cost of freight services’, so that ‘it was therefore 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 [goods] imported’ into the EEA.
122Thus, taking into account the likely effects of that infringement on competition, the General Court held, in accordance with the case-law referred to in paragraph 109 of the present judgment, that the Commission had established that the effect on the prices of imported goods had the required foreseeability.
123As the Advocate General also observed in point 73 of his Opinion, any loss the incurrence of which the cartel members ought reasonably to take into consideration on the basis of practical experience must be regarded as foreseeable within the meaning of that case-law, unlike loss which results from an entirely extraordinary train of events. As already noted in paragraph 119 of the present judgment and as the General Court also recalled in paragraph 131 of the judgment under appeal, relying in that regard on paragraph 51 of the judgment of 11 September 2014, CB v Commission (C‑67/13 P, EU:C:2014:2204), it is established that collusive behaviour, such as that leading to horizontal price-fixing by cartels, leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers.
124Accordingly, the General Court gave reasons for its assessment of the foreseeable nature of the effect on the prices of goods imported into the EEA.
125Furthermore, contrary to what Singapore Airlines and Singapore Airlines Cargo claim, in accordance with the case-law referred to in paragraph 109 of the present judgment, the General Court was not required to verify specifically whether and to what extent the freight forwarders had actually passed on that price increase to the shippers, or whether and to what extent the shippers had actually passed on that increase in transport costs to final customers.
126Last, the General Court did not reverse the burden of proof.
127In that regard, 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).
128That 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.
129In the present case, as has been stated in paragraph 120 of the present judgment, the General Court found, in paragraph 134 of the judgment under appeal, that unless it were considered that an increase in the fuel surcharge and the security surcharge would, as a result of a sufficiently probable waterbed effect, be offset by a corresponding reduction in rates and other surcharges, such an increase was, in principle, liable to lead to an increase in the total price of inbound freight services. Admittedly, it added that Singapore Airlines and Singapore Airlines Cargo had failed to demonstrate that a waterbed effect was so probable as to render the effect at issue unforeseeable. However, as is apparent from paragraph 119 of the present judgment, that assessment is preceded, in paragraphs 131 to 133 and in the first sentence of paragraph 134 of the judgment under appeal, by an examination at the conclusion 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, together with the refusal to pay commission, would lead to an increase in the total price of inbound freight services.
130Thus it was only once it had found that, in the decision at issue, the Commission had established the foreseeability of such an increase to the requisite standard that the General Court examined whether Singapore Airlines and Singapore Airlines Cargo had adduced evidence to challenge that assessment.
131In the light of the case-law referred to in paragraph 127 of the present judgment, the General Court did not reverse the burden of proof in finding that, since the Commission had established that the increase in the total price of inbound freight services was foreseeable on account of the fuel surcharge and the security surcharge, it was for Singapore Airlines and Singapore Airlines Cargo to adduce evidence to the contrary before it and, moreover, that, since they had not adduced such evidence, Singapore Airlines and Singapore Airlines Cargo had failed to demonstrate that the Commission was incorrect to consider that the increase in the total price of inbound freight services was foreseeable.
132Similarly, the General Court did not disregard the rules regarding the allocation of the burden of proof by holding, in paragraph 138 of the judgment under appeal, that Singapore Airlines and Singapore Airlines Cargo had not put forward any evidence demonstrating that the circumstances of the present case were not conducive to passing on the additional costs resulting from the single and continuous infringement on inbound routes to shippers downstream. It was only after finding, in paragraph 137 of that judgment, that the price of inbound freight services constituted an input for freight forwarders and that, as a variable cost, the increase therein, in principle, had the effect of increasing the marginal cost in relation to which the freight forwarders determined their own prices that the General Court inferred, in paragraph 139 of that judgment, that it was reasonably foreseeable for the incriminated carriers that freight forwarders would pass on such additional costs to shippers through an increase in the price of freight-forwarding services. Thus, after examining the influence exercised by the intervention of freight forwarders on the causal link between the cartel at issue and the effect on the prices of imported goods, the General Court considered that the passing on of the additional costs was foreseeable. In that assessment, the General Court noted, inter alia, in paragraphs 158 to 160 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. In those circumstances, the General Court did not reverse the burden of proof in finding that it was for Singapore Airlines and Singapore Airlines Cargo to adduce evidence to the contrary aimed at invalidating such findings.
133As regards, second, the substantial nature of the effect on the prices of goods imported into the EEA, the General Court found, in essence, as is apparent from paragraphs 147 and 155 of the judgment under appeal, that it had been established to the requisite standard by the Commission in the decision at issue, in the light of all the relevant circumstances. It relied, in that regard, first of all, in paragraph 148 of that judgment, on the duration of the single and continuous infringement in so far as it concerned EU-third country routes and non-EU EEA-third country routes, as was apparent from recital 1146 of the decision at issue, and on the duration of all the incriminated carriers’ participation, with the exception of Lufthansa Cargo and Swiss International Airlines, as was apparent from recitals 1215 and 1217 of that decision. Next, in paragraph 149 of that judgment, the General Court found, as regards the scope of the infringement, that it was apparent from recital 889 of the decision at issue that the fuel surcharge and the security surcharge were ‘measures of general application’ that ‘[were] not route specific [and] were intended to be applied on all routes, on a worldwide basis, including routes to … the EEA’. Last, in paragraph 150 of that judgment, as regards the nature of the infringement, it noted that it was apparent from recital 1030 of the decision at issue that the object of the single and continuous infringement was to restrict competition between the incriminated carriers, inter alia on EEA-third country routes. It added that, in recital 1208 of that decision, the Commission had concluded that the fixing of various elements of the price, including particular surcharges, constituted one of the most harmful restrictions of competition and that it had therefore found that the single and continuous infringement merited the application of a gravity factor ‘at the higher end of the scale’ provided for in the 2006 Guidelines referred to in paragraph 43 of the present judgment. Paragraphs 151 to 154 of the judgment under appeal contain, as their wording indicates, grounds included purely for the sake of completeness.
134Singapore Airlines and Singapore Airlines Cargo have not put forward any specific argument capable of establishing that the grounds set out by the General Court in paragraphs 164 to 183 of the judgment under appeal are vitiated by errors of law, since they merely argue, in general terms, that the surcharges are only a component of the price of freight services, that they represent, moreover, only 14.5% of the price of freight services and that the General Court did not analyse whether freight services represented a significant proportion of the costs of shippers established in the EEA. That criticism is therefore limited to calling into question the General Court’s assessment of the facts and does not establish that the General Court erred in law in holding that the substantial nature of the effect on the prices of imported goods had been established.
135It follows from the foregoing that the line of argument advanced by Singapore Airlines and Singapore Airlines Cargo, as set out in paragraphs 102 to 107 of the present judgment, in so far as it is inadmissible on the grounds set out in paragraphs 114 to 117 of that judgment, must be rejected as unfounded.
136Consequently, the sixth part of the first ground of appeal must be rejected as in part inadmissible and in part unfounded.
The seventh part, alleging that the General Court incorrectly substituted its own assessment of the qualified effects for that of the Commission
–Arguments of the parties
137Singapore Airlines and Singapore Airlines Cargo submit that the General Court substituted its assessment of the qualified effects for that of the Commission. They claim that, although the Commission dedicated only recital 1045 of the decision at issue to that assessment, the General Court, on the contrary, examined that issue in 70 paragraphs of the judgment under appeal and thus substituted its own reasoning for that of the Commission, in ‘at least five instances’ in the judgment under appeal.
138First, they submit that, in paragraphs 122 to 127 of the judgment under appeal, the General Court held that the cartel at issue was liable to have anticompetitive effects in the internal market, in particular on ‘competition that occurs between freight forwarders in order to attract [the] shippers as customers’, whereas the decision at issue does not contain any finding as to the potential impact of that cartel on competition between freight forwarders in the internal market, and, on the contrary, the Commission expressly states, in that decision, that it does not intend to carry out any assessment of the anticompetitive effects of that cartel.
139Second, they argue that the General Court examined the foreseeability of the effects, whereas the decision at issue does not contain any assessment thereof. In addition, in paragraph 134 of that judgment, the General Court ruled out the existence of a ‘waterbed effect’ by holding that Singapore Airlines and Singapore Airlines Cargo had not demonstrated that such an effect ‘was so probable as to render the effect at issue unforeseeable’, whereas the Commission examined the waterbed effect only in the grounds of the decision at issue relating to the calculation of the fine and rejected that effect on a different basis.
140Third, they submit that, in paragraphs 148 to 174 of the judgment under appeal, the General Court examined whether the effect was substantial on the basis of the infringement’s duration, its scope, its nature, the proportion represented by surcharges in the total price of the freight services, the proportion represented by freight services in the total price of imported goods, and, last, market shares. Such an analysis does not appear in the decision at issue.
141Fourth, they maintain that, even though the decision at issue does not contain any analysis of the immediacy of the effects of the conduct at issue in the European Union or in the EEA, the General Court carried out that analysis, explaining the reasons why it considered that that conduct produced immediate effects despite the intervention of freight forwarders in the causal chain.
142Fifth and last, they submit that, in paragraph 177 of the judgment under appeal, the General Court stated that the Commission was entitled to find, in recital 1046 of the decision at issue, that the qualified effects test was satisfied as regards the single and continuous infringement taken as a whole, whereas that recital does not contain such a conclusion since the Commission merely states, in that recital, that it had concluded that there was a single and continuous infringement.
143According to the Commission, the seventh part of the first ground of appeal is unfounded.
–Findings of the Court
144As a preliminary point, it should be noted, as regards the admissibility of the arguments of Singapore Airlines and Singapore Airlines Cargo, that, in accordance with settled case-law, it is apparent from the second subparagraph of Article 256(1) 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 that an appeal must indicate precisely the contested elements of the judgment under appeal and the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed as inadmissible (judgment of 26 June 2025, EVH and Others v Commission, C‑464/23 P, C‑465/23 P, C‑467/23 P, C‑468/23 P and C‑470/23 P, EU:C:2025:478, paragraph 42 and the case-law cited).
145A ground of appeal supported by an argument that is not sufficiently clear and precise to enable the Court of Justice to exercise its powers of judicial review, in particular because essential elements on which the ground of appeal relies are not indicated sufficiently coherently and intelligibly in the text of the appeal, which is worded in a vague and ambiguous manner in that regard, does not satisfy those requirements and must be declared inadmissible. The Court of Justice has also held that an appeal lacking any coherent structure which simply makes general statements and contains no specific indications as to the points of the decision under appeal which may be vitiated by an error of law must be dismissed as clearly inadmissible (judgment of 26 June 2025, EVH and Others v Commission, C‑464/23 P, C‑465/23 P, C‑467/23 P, C‑468/23 P and C‑470/23 P, EU:C:2025:478, paragraph 43 and the case-law cited).
146It should be noted that, in the present case, in so far as, by their line of argument, Singapore Airlines and Singapore Airlines Cargo claim, by way of a general statement, that the General Court substituted its own reasoning for that of the Commission, presenting five cases of substitution which, according to the appellants, are merely examples illustrating, in a non-exhaustive manner, a more general error of law, they do not satisfy the case-law referred to in paragraphs 144 and 145 of the present judgment.
147It follows that that line of argument is admissible only in so far as it concerns the five legal arguments relating to the clearly identified paragraphs of the grounds of the judgment under appeal.
148In the first place, it must be stated that, in so far as they complain that the General Court substituted its own reasoning for that of the Commission by relying, in paragraphs 122 to 127 of the judgment under appeal, on the effects that the conduct at issue may have on competition that occurs between freight forwarders in order to attract shippers as customers, Singapore Airlines and Singapore Airlines Cargo merely put forward, once again, the same complaint as that raised in the third part of the first ground of appeal. Accordingly, for the same reasons as those set out in paragraphs 82 to 89 of the present judgment, such a complaint cannot succeed.
149In the second place, as regards the complaint made against paragraphs 129 to 144 of the judgment under appeal, by which the General Court assessed the condition relating to the foreseeability of the effect of the conduct at issue on imported goods, it must be observed that in those paragraphs, the General Court referred to recitals 14, 17, 70, 846, 874, 879, 899, 909, 1031, 1045, 1199 and 1208 of the decision at issue, while addressing the line of argument put forward by Singapore Airlines and Singapore Airlines Cargo in support of their claim that that condition had not been satisfied in the present case. It is therefore on the basis of an overall reading of those recitals of the decision at issue and on the basis of its assessment of the line of argument put forward by Singapore Airlines and Singapore Airlines Cargo that, in paragraph 144 of the judgment under appeal, the General Court found that the Commission had established the required foreseeability of that effect to the requisite standard.
150Moreover, by its considerations relating to the lack of evidence of a ‘waterbed’ effect, set out in paragraph 134 of the judgment under appeal, the General Court merely responded to the arguments raised before it by Singapore Airlines and Singapore Airlines Cargo.
151In the third place, as regards the substantial nature of that effect, it is apparent from an overall reading of the grounds of the judgment under appeal which address that matter and, in particular, paragraphs 148 to 150 thereof, that the General Court made that assessment by relying in particular on recitals 889, 1146 and 1208 of the decision at issue, by which the Commission found that the fuel surcharges and the security surcharges were of general application, that the single and continuous infringement consisted of fixing various elements of the price, and accordingly, it represented one of the most harmful restrictions of competition, and that the single and continuous infringement lasted 21 months in so far as it concerned EU-third country routes and 8 months in so far as it concerned non-EU EEA-third country routes, that being also the duration of all the incriminated carriers’ participation, with the exception of two of them. The General Court therefore took into consideration, for the purpose of assessing the substantial nature of the effect on the prices of imported goods, the factual and legal elements identified by the Commission in the decision at issue.
152In the fourth place, as regards the immediacy of that effect, it should be recalled that the General Court relied on recital 1045 of the decision at issue, by which the Commission had noted that the anticompetitive practices with regard to inbound freight services were liable to have immediate effects. By holding, in paragraph 158 of the judgment under appeal, that, contrary to what Singapore Airlines and Singapore Airlines Cargo had, in essence, maintained, the intervention of freight forwarders was not in itself such as to break the causal chain between the conduct at issue and that effect, the General Court thus did not substitute its own reasoning for that of the decision at issue, but rejected the appellants’ line of argument that freight forwarders could not pass on to their own customers the increase in the cost of freight services, and confirmed the reasoning of that decision.
153In the fifth place, the complaint directed against paragraph 177 of the judgment under appeal concerns the finding of qualified effects in respect of the single and continuous infringement taken as a whole and will therefore be examined in the assessment of the arguments contained in the fifth part.
154It follows that, subject to that caveat, the seventh part of the first ground of appeal must be rejected as in part inadmissible and in part unfounded.
The fifth part, relating to the effects of the single and continuous infringement taken as a whole
–Arguments of the parties
155Singapore Airlines and Singapore Airlines Cargo submit that the General Court erred in law in holding that the Commission was entitled to rely on the existence of a worldwide cartel and on the effects of the single and continuous infringement taken as a whole without having to demonstrate that the practices implemented outside the EEA satisfied the requirements of Article 101(1) TFEU and Article 53 of the EEA Agreement.
156First, they submit that practices which restrict competition only on a market outside the EEA cannot be regarded as having the object or effect of restricting competition in the internal market on the pretext that they are associated with a broader cartel that includes other conduct that did have the object or effect of restricting competition in the internal market.
157Second, they claim that the General Court failed to take account of the fact that, in the decision at issue, the Commission did not find that there was a worldwide cartel, in the traditional sense of an agreement between major competitors to fix prices on a worldwide basis, but used the concept of a ‘worldwide cartel’ for the sole purpose of identifying a single and continuous infringement. The concept of a ‘single and continuous infringement’ is a ‘procedural device’ whereby multiple agreements or practices concerned, each of which infringe Article 101(1) TFEU, are combined to constitute a single infringement for the purpose of allocating liability among participants and determining the geographic scope and duration of the cartel. Only an agreement or concerted practice which, in itself, has the object or effect of restricting competition in the internal market can form part of a single and continuous infringement, so that the General Court’s analysis, which relies on the ‘fact’ that practices are part of such an infringement to establish that they infringe Article 101(1) TFEU, contains the logical fallacy of a ‘circulus in probando’.
158Third, they submit that the approach of accepting that conduct related to pricing in markets outside the EEA is subject to Article 101(1) TFEU solely on the basis that it is an integral part of a worldwide price-fixing cartel constituting a single and continuous infringement is problematic, since it makes it possible to apply EU law to conduct that occurs in third countries and has no connection with the EEA.
159Fourth, they claim that the General Court was incorrect to refer, in order to justify that approach, to the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), whereas the facts that gave rise to that judgment were characterised by a documented overall strategy adopted by a single undertaking to eliminate the only competitor in a global market that included the European Union. By contrast, in the present case, the concerted practices on inbound routes are different from the other instances of conduct at issue, relating to sales made in inbound markets. In addition, the Court of Justice focused, in that judgment, on the application of the qualified effects test to justify the Commission’s jurisdiction under international law and not on the application of the tests under Article 102 TFEU or Article 101(1) TFEU. Last, the tests for the application of those two articles are different.
160The Commission contends that this part of the ground of appeal must be rejected as unfounded.
–Findings of the Court
161As is clear in particular from paragraph 95 of the judgment under appeal, Singapore Airlines and Singapore Airlines Cargo confined themselves, before the General Court, to disputing the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to the conduct at issue in so far as it related to inbound freight services.
162In that connection, 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 177 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.
163Moreover, as is clear from the examination of the first four parts and the sixth and seventh parts of the first ground of appeal, the General Court neither erred in law nor substituted its own grounds for those of the Commission in finding to that effect in paragraph 162 of the judgment under appeal.
164In those circumstances, it must be held that this fifth part of the first ground of appeal is aimed at grounds of the judgment under appeal included purely for the sake of completeness. It must, as a consequence, be rejected as ineffective, in accordance with the settled case-law according to which 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).
165Consequently, the first ground of appeal must be rejected in its entirety.
The second ground of appeal, relating to the assessment of the conduct linked to the WOW alliance
166The second ground of appeal consists of two parts, alleging, first, an error of law and a failure to state reasons in the examination of the evidence adduced by Singapore Airlines and Singapore Airlines Cargo relating to the nature and scope of the WOW alliance and, second, errors of law in the legal analysis of the conduct within that alliance.
The first part, relating to the examination of the evidence concerning the nature and scope of the WOW alliance
–Arguments of the parties
167Singapore Airlines and Singapore Airlines Cargo submit that the General Court erred in law by failing to examine whether, in the decision at issue, the Commission had taken into account all the relevant evidence necessary for a proper assessment of the conduct within the WOW alliance.
168Singapore Airlines and Singapore Airlines Cargo observe that, both during the administrative procedure and during the proceedings before the General Court, they had emphasised that contacts between partners in a legitimate and pro-competitive alliance, such as the WOW alliance, had to be assessed differently from similar contacts between competitors which are not partners within a joint venture. They state that, in the course of the proceedings that gave rise to the judgment of 16 December 2015, Singapore Airlines and Singapore Airlines Cargo Pte v Commission (T‑43/11, EU:T:2015:989), they described the development of the WOW alliance on the basis of a document, called the ‘WOW Annex’, produced as Annex A.26 to the application before the General Court, which demonstrated that the description of that alliance in the initial decision was inaccurate. Even though that annex was sent to the Commission when the administrative procedure was reopened following the General Court’s annulment of the initial decision, the Commission did not take that new evidence into account and merely reproduced its original analysis. They claim that, although they produced the WOW Annex before the General Court, it concluded, in the judgment under appeal, that the conduct in the WOW alliance could be regarded as forming part of a single and continuous infringement, without analysing that new evidence in all its complexity.
169According to Singapore Airlines and Singapore Airlines Cargo, the General Court thus erred in law by disregarding their claims before it and by failing to verify whether the material relied on by the Commission constituted all the relevant information to be taken into consideration in order to establish whether the conduct at issue could be regarded as a restriction of competition by object. Failing that verification, the General Court erred in law by carrying out an incorrect legal analysis of the WOW alliance. They add that its judgment is also vitiated by a failure to state reasons.
170Furthermore, they submit that it is apparent from paragraph 466 of that judgment, which refers to the WOW Annex, that the General Court did not correctly analyse or understand the implications of the Commission’s previous decisions with regard to full-cooperation airline alliances. In particular, it failed to take account of the fact that the unique regulatory situation of the airline industry requires the maintenance of separate brands and corporate identities despite the implementation of a full-cooperation alliance.
171The Commission contends that that line of argument is inadmissible in so far as it concerns its own assessment of the WOW Annex and that, as to the remainder, it is unfounded, since the General Court carried out a thorough examination of the arguments put forward by Singapore Airlines and Singapore Airlines Cargo at first instance.
–Findings of the Court
172It is clear from settled case-law that the review of legality provided for in Article 263 TFEU entails the EU judicature conducting a review, in respect of both the law and the facts, of the contested decision in the light of the arguments relied on by the applicant, which means that it has the power to assess the evidence, annul the decision and alter the amount of the fine (judgment of 26 January 2017, Duravit and Others v Commission, C‑609/13 P, EU:C:2017:46, paragraph 30 and the case-law cited).
173Furthermore, although the Commission has a measure of discretion with regard to economic matters, particularly in areas giving rise to complex economic assessments, that does not mean that the EU judicature must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must the EU judicature establish whether the evidence relied on is factually accurate, reliable and consistent, but it must also establish whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see, to that effect, judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 46 and the case-law cited).
174In the present case, first, it is apparent from paragraphs 460 to 470 of the judgment under appeal that the General Court examined the arguments and evidence relied on by the appellants in the second part of their third plea in their application initiating proceedings, alleging errors of fact and of assessment as regards the nature of the WOW alliance and its implementation. It noted, in that regard, in paragraphs 461, 462 and 470 of the judgment under appeal respectively, that Singapore Airlines and Singapore Airlines Cargo did not rely on the existence of a general integrated pricing policy actually implemented within the WOW alliance, that they had failed to demonstrate that the examples of commercial integration which they cited in their pleadings implied general coordination on tariffs or surcharges and that they themselves agreed that the more extensive attempts to integrate in the context of the WOW Inc. and WOW USA projects had not been successful. Furthermore, in paragraph 466 of the judgment under appeal, the General Court expressly referred to the WOW Annex, as Singapore Airlines and Singapore Airlines Cargo themselves acknowledge.
175The appellants are therefore incorrect to claim that, in so far as it endorsed the Commission’s analysis in the decision at issue, the General Court necessarily failed to examine their arguments and to assess the evidence which they had relied on. In reality, by their line of argument, they are asking the Court of Justice to carry out a fresh assessment of that evidence, from which the General Court, in its unfettered discretion, inferred that the appellants had not demonstrated that the level of commercial integration implemented in the WOW alliance was more extensive than the Commission had found in the decision at issue.
176In that regard, it should be borne in mind that, in the exercise of its power to assess evidence, the General Court is not only entitled to weigh the evidence, by attributing decisive weight to one category of evidence, but also to attribute limited probative value to other evidence or to attribute no probative value to it, in compliance with the rules applicable to the taking of evidence and the burden of proof (order of 5 October 2023, OM v Commission, C‑98/23 P, EU:C:2023:749, paragraph 30 and the case-law cited).
177Second, as regards the argument alleging a failure to state reasons in the judgment under appeal, resulting from the General Court’s failure to examine whether, in the decision at issue, the Commission had taken into account all the evidence relating to the WOW alliance, including the WOW Annex, it is sufficient to note that the General Court expressly referred to the WOW Annex in paragraph 466 of the judgment under appeal and set out the reasons why the new evidence produced at the hearing did not establish that the commercial integration implemented in the WOW alliance was more extensive than was apparent from the decision at issue. Accordingly, the argument alleging a failure to state reasons in the judgment under appeal must be rejected.
178Third, in so far as, by their line of argument, Singapore Airlines and Singapore Airlines Cargo claim that paragraph 466 of the judgment under appeal shows that the General Court did not correctly analyse or understand the implications of previous decisions regarding full-cooperation airline alliances, and their implications for the conduct within the WOW alliance, it must be noted that, in that paragraph, the General Court merely responded to their line of argument, based on the existence of product harmonisation, by assessing the probative value, or lack thereof, of the evidence produced in support of that line of argument and, in particular, the WOW Annex, produced in support of the application initiating proceedings. It follows that that line of argument, which seeks to call into question the General Court’s unfettered assessment of the facts and evidence without making any claim of distortion, is inadmissible.
The second part, relating to the legal analysis of the conduct within the WOW alliance
–Arguments of the parties
179Singapore Airlines and Singapore Airlines Cargo submit that, by failing to carry out the required judicial review of all the evidence relating to the WOW alliance, the General Court made several errors of law in its assessment of the conduct linked to that alliance.
180They submit that the General Court thus endorsed the legal approach taken by the Commission in assessing such alliances between carriers, set out in the decision at issue, even though that approach is incorrect. That error of law is illustrated in particular by the analysis, in paragraphs 482, 483 and 496 to 498 of the judgment under appeal, of the creation of an ‘atmosphere of trust’ within the alliance and by the finding that that conduct constituted evidence of a restriction of competition by object under Article 101(1) TFEU. They argue that the General Court did not understand the legal conditions for applying that article to genuine cooperative interactions among members of an alliance, such as the WOW alliance, and the implications of the Commission’s previous decisions regarding full-cooperation alliances.
181In addition, the appellants claim that the General Court erred in stating, in paragraph 481 of the judgment under appeal, that the Commission was not required to examine in detail whether the context of the WOW alliance could remove from the conduct at issue the degree of harm required for it to be classified as a restriction of competition ‘by object’. They submit that, in reality, the entire purpose of full-cooperation alliances is precisely to substitute cooperation for competition, as the Commission has acknowledged in its previous decision-making practice in relation to airline alliances. A correct analysis of the factual and legal context, as required by the judgment of 11 September 2014, CB v Commission (C‑67/13 P, EU:C:2014:2204), should have led the General Court to recognise that there was no form of tariff coordination that was unrelated to the implementation of full cooperation.
182Similarly, they argue that the General Court erred in law in upholding, in paragraphs 461 to 469 of the judgment under appeal, the Commission’s argument that a general pricing policy was necessary to justify coordination on tariffs including surcharges.
183Last, Singapore Airlines and Singapore Airlines Cargo submit that, since the Commission expressly acknowledged that the WOW alliance was lawful as such, including its price coordination component, it was sufficient to ascertain whether the agreement satisfied the requirements of Article 101(3) TFEU, which refers to ‘any agreement’ and not to specific forms of cooperation in a broader agreement, contrary to the approach adopted in the decision at issue and in the judgment under appeal. Furthermore, the indispensability of the restrictions of competition resulting from the agreement is required in relation to the objectives of the agreement and not in relation to those objectives ‘as implemented’, again contrary to the approach in the decision at issue.
184The Commission contends that this part of the ground of appeal is unfounded.
–Findings of the Court
185It should first be noted that, as already observed in paragraphs 174 to 176 of the present judgment, in so far as Singapore Airlines and Singapore Airlines Cargo generally dispute, by their line of argument, the factual context assessed by the General Court on the basis of the evidence adduced before it, that line of argument seeks to obtain from the Court of Justice an assessment of the facts found by the General Court, without claiming any distortion. To that extent, that line of argument is therefore inadmissible.
186Second, Singapore Airlines and Singapore Airlines Cargo put forward general considerations with regard to the scope of ‘full-cooperation’ alliances, whereas the General Court correctly relied on an analysis of the specific characteristics of the WOW alliance and the particular factual and legal context of that alliance, noting that the Commission had found that none of the initiatives taken in that context justified general coordination on surcharges.
187Moreover, in support of those general considerations, Singapore Airlines and Singapore Airlines Cargo cannot derive any argument from the Commission’s previous decision-making practice, which can only be indicative (see, to that effect, judgment of 13 July 2023, Commission v CK Telecoms UK Investments, C‑376/20 P, EU:C:2023:561, paragraph 164 and the case-law cited).
188Thus, even if the Commission considered, in a case concerning a given cartel, that it was required, in order to be able to classify that cartel as a restriction of competition ‘by object’, to carry out a more detailed analysis of the economic and legal context of which that cartel forms part than the analysis carried out in relation to a different cartel, such previous practice cannot suffice to establish that, in the case concerning that different cartel, the Commission’s analysis of the economic and legal context of that cartel is insufficient.
189Third, contrary to the arguments put forward by Singapore Airlines and Singapore Airlines Cargo, the General Court did not, in paragraphs 461 to 469 of the judgment under appeal, lay down a general rule that a general pricing policy was always necessary in order to approve a ‘full-cooperation’ alliance. On the contrary, after recalling that, in recitals 947 to 952 of the decision at issue, the Commission had concluded that cooperation within the WOW alliance had remained limited and had never reached the stage of an integrated sales and pricing policy, the General Court merely examined, in response to the second part of the third plea put forward before it, whether the evidence put forward by Singapore Airlines and Singapore Airlines Cargo was such as to call into question the merits of those conclusions.
190Fourth, in so far as Singapore Airlines and Singapore Airlines Cargo submit that, given that the Commission expressly acknowledged that the WOW alliance was lawful as such, the assessment of the interactions among the members of the alliance had to follow the ‘standard’ approach consisting of verifying whether the agreement satisfied the requirements of Article 101(3) TFEU, it should be noted that it is not apparent from paragraph 453 of the judgment under appeal that the General Court found that the WOW alliance was lawful as such. Moreover, it follows from paragraphs 447 and 449 of that judgment that the General Court approved the Commission’s approach, set out in recitals 922 to 924 of the decision at issue, which was to consider that determining whether the WOW contacts were relevant for the purpose of establishing that Singapore Airlines and Singapore Airlines Cargo participated in the single and continuous infringement was independent of the question of whether the WOW alliance was compatible with Article 101 TFEU, the only important factor being the extent to which the WOW contacts ‘[went] beyond’ what was provided for in the alliance agreement and did not form part of the cooperation that was actually implemented in the alliance. Those grounds of the judgment under appeal, which are not criticised by Singapore Airlines and Singapore Airlines Cargo, are sufficient to justify the General Court’s decision.
191It follows that the second part of the second ground of appeal and, accordingly, that ground of appeal in its entirety must be rejected as, in part, inadmissible, in part, ineffective and, in part, unfounded.
The third ground of appeal, alleging errors of law in the classification of the contacts relating to the refusal to pay commission as a restriction by object
192By their third ground of appeal, Singapore Airlines and Singapore Airlines Cargo claim that the General Court incorrectly classified the contacts between carriers relating to the refusal to pay commission as a restriction of competition by object.
193That ground of appeal consists of three parts, alleging, first, errors of law in the assessment of the content of those contacts, second, errors of law in the assessment of the objectives of those contacts and, third, errors of law in the assessment of the legal and economic context of those contacts.
Arguments of the parties
–The first part, alleging errors of law in the assessment of the content of the contacts relating to the refusal to pay commission
194By the first part, Singapore Airlines and Singapore Airlines Cargo, which submit that the concept of ‘restriction of competition by object’ must be interpreted strictly, complain that the General Court erred in its assessment of the content of the contacts at issue by endorsing, in paragraphs 418 and 419 of the judgment under appeal, the Commission’s conclusion that the conduct at issue was akin to a horizontal price-fixing cartel and in finding, in paragraph 420 of that judgment, that the Commission had been correct to find that the commissions payment of which the freight forwarders claimed, were ‘in fact discounts on the surcharges’.
195According to Singapore Airlines and Singapore Airlines Cargo, that reasoning does not address the line of argument put forward by them before the General Court, according to which the conduct at issue was not simply a refusal to pay discounts, but rather a response by airlines to the coordinated claim made by freight forwarders to a legal right to payment of a discount.
196They submit that, on the basis of an analysis that was conducted without any assessment of the evidence, the General Court thus erred in considering that any coordination that removes uncertainty in the market in respect of pricing matters constitutes a restriction of competition by object. They argue that coordination between competitors regarding their response to actual or threatened litigation does not involve a restriction of price competition, even though it could have an indirect effect on prices. Thus, in the present case, the contacts between airlines concerning the refusal to pay commission on surcharges constituted coordination in litigation management, since those contacts were triggered by the freight forwarders’ claim to a legal right to payment of commission, based on the national laws governing the activities of commercial agents, and therefore coordination between the airlines that were or could be prosecuted was justified.
197The Commission contends that this part of the ground of appeal is inadmissible, since it seeks to call into question findings of fact, and that it is, in any event, unfounded in so far as it seeks artificially to separate the coordination relating to the refusal to pay commission from the other aspects of the coordination on surcharges.
–The second part, alleging errors of law in the assessment of the objectives of the contacts relating to the refusal to pay commission
198Singapore Airlines and Singapore Airlines Cargo submit that the General Court erred in law in its assessment of the objectives of the contacts relating to the refusal to pay commission on surcharges.
199They submit that it follows from the case-law that, once an undertaking identifies a legitimate or pro-competitive objective for its conduct that is prima facie plausible, that conduct cannot be classified, without further examination, as a restriction of competition by object. Thus, even if it were accepted that the coordination relating to the payment of commission on surcharges was a priori anticompetitive, it would be necessary to take into consideration the pro-competitive objective, namely the organisation of an effective response to the freight forwarders’ claim.
200Singapore Airlines and Singapore Airlines Cargo submit, consequently, that the General Court could not confine itself to highlighting, in paragraphs 419 and 425 of the judgment under appeal, the link between the refusal to pay commission and the coordination relating to surcharges taken as a whole, when the contacts relating to the refusal to pay commission pursued more direct and fundamental objectives, consisting of organising a common response to the freight forwarders’ claim. Conflating the objectives of that specific conduct with those of the single and continuous infringement taken as a whole constitutes a ‘circulus in probando’, precluding any fair and objective assessment of the evidence relating to that conduct, irrespective of the assessment of the evidence relating to the other, separate, elements of the single and continuous infringement.
201The Commission contends that, for the same reasons as the first part, this second part is inadmissible and, in any event, unfounded.
–The third part, alleging errors of law in the assessment of the legal and economic context of the contacts relating to the refusal to pay commission
202Singapore Airlines and Singapore Airlines Cargo claim that the General Court erred in law in its assessment of the legal and economic context of the contacts relating to the refusal to pay commission on surcharges. They submit that the finding, in paragraph 425 of the judgment under appeal, that the Commission had conducted an adequate assessment of the relevant legal and economic context is incorrect, in so far as the Commission did not identify the ‘dominant feature’ of that context, namely the coordinated initiative of associations of freight forwarders and individual freight forwarders to obtain recognition of a legal right to payment of a standard commission in compensation for the collection of surcharge revenue.
203They add that the Commission also failed to take into consideration certain key features of the legal context, such as the dubious legal basis for the freight forwarders’ claims, the role of the standard contractual terms applicable in the sector under consideration and the actual or threatened issuance of invoices based on a supposed legal right. Therefore, the General Court’s conclusion that the examination of the facts in the decision at issue constituted a sufficient basis for assessing the economic context of the impugned conduct is legally incorrect.
204The Commission responds that this part of the ground of appeal is unfounded.
Findings of the Court
–Preliminary observations
205It should be borne in mind, as a preliminary point, that, according to the case-law of the Court of Justice, the essential legal criterion for ascertaining whether an agreement, whether horizontal or vertical, involves a ‘restriction of competition by object’ is the finding that such an agreement reveals in itself a sufficient degree of harm to competition for it to be considered that it is not necessary to assess its effects (see, to that effect, judgments of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 57, and of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 106 and the case-law cited).
206In order to determine, in a given case, whether that criterion is satisfied, it is necessary to examine, first, the content of the agreement, decision or practice in question, second, the economic and legal context of which it forms part and, third, its objectives. When determining that context, it is also necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question (judgments of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 53, and of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraphs 165 and 166).
207The Court has also held that, in respect of agreements or collusive practices which constitute particularly serious infringements of competition, the analysis of the economic and legal context of which the agreement or practice forms part may be limited to what is strictly necessary in order to establish the existence of a restriction of competition by object (see, to that effect, judgments of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraphs 28 and 29 and the case-law cited, and of 26 October 2023, EDP – Energias de Portugal and Others, C‑331/21, EU:C:2023:812, paragraphs 98 to 102).
208Those types of agreements or collusive practices include horizontal price-fixing agreements (see, to that effect, judgments of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 82, and of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 163), and horizontal cartels providing for price fixing fall within the category of agreements expressly prohibited by Article 101(1)(a) TFEU.
209In the present case, it must be noted that, by their third ground of appeal, Singapore Airlines and Singapore Airlines Cargo do not call into question those principles, which the General Court set out in paragraphs 412 to 417 of the judgment under appeal, but dispute the classification of the refusal to pay commission as a restriction of competition by object, maintaining that the General Court erred in law in its analysis of the content and the objectives of that conduct, as well as the economic and legal context of which it formed part. It must therefore be ascertained whether the General Court relied on an incorrect analysis of those aspects.
–The first part
210It should be noted, first, that, under the guise of errors of assessment made by the General Court with regard to the content of the conduct at issue, Singapore Airlines and Singapore Airlines Cargo are in fact challenging the factual assessments made by the General Court in paragraphs 350, 351 and 420 of the judgment under appeal. It thus found, in essence, in paragraph 350 of that judgment, that the refusal to pay commission was not merely the response of carriers to the attempt of freight forwarders as a group to assert a right to a payment of commissions for surcharge collection. In paragraph 351 of the judgment under appeal, it stated, in that regard, that the carriers had not merely established a common position in order to defend it in a coordinated manner before the competent courts or to promote it collectively before the public authorities and other professional associations, but that, on the contrary, they had acted in concert by agreeing, at a multilateral level, to refuse to negotiate the payment of commission with freight forwarders and to grant them discounts on the surcharges. Last, in paragraph 420 of the judgment under appeal, the General Court held that the Commission was correct to find, in recital 879 of the decision at issue, that the commissions payment of which the freight forwarders claimed, were ‘in fact discounts on the surcharges’.
211Those findings, by which the General Court rejected the line of argument put forward by Singapore Airlines and Singapore Airlines Cargo, according to which the contacts relating to the payment of commission had to be regarded as coordination intended to respond to actual or threatened litigation, constitute findings of fact which cannot be reviewed by the Court of Justice in an appeal, save where the clear sense of the evidence has been distorted, pursuant to paragraph 92 of the present judgment and the case-law referred to in paragraph 93 hereof. Singapore Airlines and Singapore Airlines Cargo have not alleged any distortion of the facts and evidence by the General Court.
212Second, in so far as, by that line of argument, Singapore Airlines and Singapore Airlines Cargo submit, in essence, that the judgment under appeal is vitiated by a failure to state reasons in so far as the General Court did not respond to their argument that the conduct at issue was a response by carriers to the coordinated claim of freight forwarders to a legal right to payment of a discount, it is sufficient to note that, by the grounds set out in paragraphs 350, 351 and 420 of the judgment under appeal, referred to in paragraph 210 of the present judgment, the General Court responded to and rejected the arguments put forward by Singapore Airlines and Singapore Airlines Cargo claiming that the refusal to pay commission could not be regarded as a coordinated refusal to pay discounts, and thus gave reasons for its judgment.
213In those circumstances, the first part of the third ground of appeal must be rejected as in part inadmissible and in part unfounded.
–The second part
214The line of argument made by Singapore Airlines and Singapore Airlines Cargo is based on the premiss that the contacts between air carriers relating to the refusal to pay commission pursued a pro-competitive objective. They claim, to that effect, that it was apparent from the evidence set out in the application initiating proceedings that the contacts concerning commissions were a response to the concerted attempt by freight forwarders to obtain recognition of a legal right to those commissions and infer therefrom that the clear objective was to mount an effective response.
215It is thus apparent that, under the guise of a complaint alleging an error of law in the assessment of the objectives of the contacts relating to the refusal to pay commission, the line of argument made by Singapore Airlines and Singapore Airlines Cargo is intended, in reality, to call into question the General Court’s unfettered assessment of the facts and evidence as to the scope of those contacts. As already stated in paragraph 210 of the present judgment, following its assessment of the facts and evidence, the General Court found, in essence, that the refusal to pay commission had to be analysed not as a coordinated response of the carriers to the attempt of freight forwarders as a group to assert a right to payment of commissions, but as a concerted refusal to grant them discounts on surcharges. That line of argument is, to that extent, inadmissible.
216In so far as, by that line of argument, Singapore Airlines and Singapore Airlines Cargo criticise the General Court for characterising the conduct relating to the refusal to pay commission on the basis of the other constituent elements of the single and continuous infringement, without investigating the objectives of that specific conduct, irrespective of the assessment of the other elements of that infringement, it must be stated that that line of argument is based on a selective reading of the judgment under appeal. It is apparent from paragraph 419 of that judgment that the conclusion that the refusal to pay commission was liable to reinforce the coordination relating to the surcharges was inferred from the fact that that conduct amounted, in itself, to a concerted refusal to grant freight forwarders discounts on surcharges, by which the incriminated carriers aimed to eliminate competition in respect of surcharges.
217It follows that the second part of the third ground of appeal is in part inadmissible and in part unfounded. It must therefore be rejected.
–The third part
218In paragraph 426 of the judgment under appeal, the General Court noted that, following a sufficient analysis of the relevant economic and legal context, the Commission had correctly found, in recitals 903 and 910 of the decision at issue, that the agreements and practices at issue had the object of restricting competition, including in so far as they concerned the refusal to pay commission.
219Although Singapore Airlines and Singapore Airlines Cargo dispute the General Court’s conclusion, maintaining that the analysis carried out by the Commission did not make it possible to identify the ‘dominant feature’ of the legal and economic context and that the Commission failed to recognise certain features of that context, it must nevertheless be stated that they confine themselves to inferring the inadequacy of the analysis of that context from the fact that it was not held that the contacts relating to the refusal to pay commission responded to the coordinated initiative by associations of freight forwarders and individual freight forwarders to obtain recognition of a legal right to payment of a standard commission, without providing any evidence to establish that the General Court failed to assess the degree of economic harm of the conduct at issue by carrying out an insufficient analysis of the legal or economic context.
220In the judgment under appeal, after recalling, in paragraphs 409 to 413, the substance of the case-law cited in paragraphs 205 to 208 of the present judgment, the General Court held, in paragraph 420 of its judgment, that the Commission had been correct to find, in recital 879 of the decision at issue, that the commissions payment of which the freight forwarders claimed, were ‘in fact discounts on the surcharges’. Furthermore, before reaching, in paragraph 426 of the judgment under appeal, the conclusion that the examination of the relevant economic and legal context carried out by the Commission was sufficient, the General Court noted, in paragraph 425 of that judgment, that, in recitals 909 and 916 of the decision at issue, the Commission had explained that price was the main instrument of competition, that the agreements and practices at issue were intended to remove pricing uncertainty in the airfreight market and thus to ensure that discipline was maintained in the market and that increases arising from the fuel indices were applied in full and in a coordinated way.
221In that paragraph 425, the General Court also found that that analysis was based, inter alia, on Section 4 of the decision at issue, which described, in particular, the basic principles and structure of the cartel at issue, and that that analysis also had to be read in the light of the description of the freight sector and the applicable pricing arrangements in Section 2.1 of that decision.
222The General Court thus relied, in the light of the case-law referred to in paragraphs 205 and 206 of the present judgment, on relevant factors in order to assess whether a specific instance of conduct constitutes a restriction of competition by object.
223Consequently, Singapore Airlines and Singapore Airlines Cargo have not demonstrated that the General Court erred in law in analysing the economic and legal context of which the agreements and practices at issue form part in order to determine whether that conduct revealed a sufficient degree of harm to competition to be classified as a restriction of competition by object.
224It follows from all of the foregoing that the third part of the third ground of appeal must be rejected as unfounded. Consequently, the third ground of appeal must be rejected in its entirety.
The fourth ground of appeal, relating to the limitation period
Arguments of the parties
225Singapore Airlines and Singapore Airlines Cargo complain that the General Court failed to raise of its own motion the Commission’s lack of power to impose penalties on them for the infringements relating to intra-EEA routes and EU-Switzerland routes as a consequence of the expiry of the limitation period.
226In support of their ground of appeal, Singapore Airlines and Singapore Airlines Cargo state that, in three other judgments concerning the same cartel, the General Court found that the Commission’s exercise of its power to impose penalties in respect of that conduct was time-barred as from 14 February 2016, that is to say, on a date prior to the date on which the decision at issue was adopted, and concluded that, by penalising, in that decision, the carriers concerned for that conduct, the Commission had infringed the rules on limitation laid down in Article 25 of Regulation No 1/2003.
227Singapore Airlines and Singapore Airlines Cargo, which, unlike the air carriers at issue in those three cases, did not raise the plea based on the limitation period before the General Court, submit that it should nevertheless be raised by the Court of Justice of its own motion, given that it is a plea involving a matter of public policy.
228To that effect, they submit, first, that it follows from settled case-law that the lack of jurisdiction of the institution which adopted the contested measure constitutes a ground for annulment involving a matter of public policy which must be raised by the EU judicature of its own motion.
229Second, whether the limitation period laid down in Article 25 of Regulation No 1/2003 had expired was assessed and confirmed by the General Court in the three judgments concerning those other air carriers. In order to avoid unequal treatment between carriers in comparable situations, the General Court should have raised the matter of the limitation period of its own motion in favour of Singapore Airlines and Singapore Airlines Cargo, which would be placed in the same procedural situation as the carriers which relied on the limitation period and which, following the finding that the Commission’s powers to impose penalties were time-barred in respect of the conduct relating to the intra-EEA routes and EU-Switzerland routes, benefited from a reduction of the fines which had been imposed on them.
230Third, the appellants submit that the expiry of the limitation period is necessarily a matter of public policy in competition cases in so far as proceedings brought in that field are regarded as ‘criminal’, having regard to the size of the fines which may be imposed on undertakings, and are, consequently, subject to the guarantees provided for in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (ECHR). The criminal nature of proceedings for penalising infringements of the competition rules is borne out by the fact that the national legislatures made the expiry of limitation periods in criminal matters a matter of public policy which must be raised by the national courts of their own motion.
231They argue that the nature of the plea based on the limitation period as a matter of public policy may also be inferred from the objective of legal certainty pursued by Article 25 of Regulation No 1/2003. Since the limitation period thus fulfils the same function of legal certainty as the periods for bringing proceedings, it should be recognised as a matter of public policy in the same way as those periods.
232The Commission contends that this ground of appeal must be rejected as unfounded.
Findings of the Court
233As a preliminary point, it must be noted that, as Singapore Airlines and Singapore Airlines Cargo correctly submit, by the judgments of 30 March 2022, Japan Airlines v Commission (T‑340/17, EU:T:2022:181), of 30 March 2022, Cathay Pacific Airways v Commission (T‑343/17, EU:T:2022:184), and of 30 March 2022, Latam Airlines Group and Lan Cargo v Commission (T‑344/17, EU:T:2022:185), relating to the same cartel and delivered on the same day as the judgment under appeal, the General Court, before which air carriers brought actions for annulment based on the limitation period for the Commission’s powers to impose penalties in respect of the unlawful conduct relating to the intra-EEA and EU-Switzerland routes, held that the Commission had failed to observe the limitation period laid down in Article 25 of Regulation No 1/2003 by adopting, on 17 March 2017, a decision imposing penalties on the air carriers concerned for that unlawful conduct.
234It is also common ground that, unlike those carriers, Singapore Airlines and Singapore Airlines Cargo did not raise before the General Court the plea alleging that the limitation period had expired.
235It must therefore be examined whether that plea constitutes a plea involving a matter of public policy which the General Court should have raised of its own motion.
236In the first place, it should be noted that, as is expressly stated in the title of Chapter VII of Regulation No 1/2003 and the wording of Article 25 of that regulation, which appears in that Chapter VII, the periods within which the Commission’s powers to impose penalties are to be exercised are classified as ‘limitation periods’.
237It should be noted, in that regard, that the classification as ‘limitation periods’ is confirmed by other language versions of that regulation, in particular the Spanish- (‘prescripción’), French- (‘prescription’), Italian- (‘prescrizione’), Lithuanian- (‘senaties terminai’) and Portuguese-language (‘prescrição’) versions of that regulation.
238Since the nature of a time limit is to be determined with reference to the general context in which it occurs and with regard to its objective (judgment of 12 December 2002, Belgium v Commission, C‑5/01, EU:C:2002:754, paragraph 52 and the case-law cited), it should also be noted that the nature of the time limit laid down in Article 25 of Regulation No 1/2003 is supported by a contextual and teleological interpretation of that provision.
239In that context, it must be pointed out that Article 26 of Regulation No 1/2003, which, together with Article 25 thereof, constitutes Chapter VII of that regulation, also classifies as a ‘limitation period’ the period after the expiry of which the Commission may no longer enforce decisions taken pursuant to Articles 23 and 24 of that regulation. In addition, both Article 25 of that regulation and Article 26 thereof lay down precisely all the rules applicable to the time limits which they establish, providing not only for the duration of those time limits but also the date from which they are to run and the grounds for interrupting and suspending them. Those rules correspond to the legal rules on limitation.
240As regards the objective of the time limits that circumscribe the Commission’s powers, it must be noted that Article 25 of Regulation No 1/2003 reproduces, in essence, the provisions of Articles 1 to 3 of Regulation (EEC) No 2988/74 of the Council of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ 1974 L 319, p. 1). Reference must therefore be made, when interpreting those time limits, to the preamble to that regulation and, in particular, to the second recital thereof. That recital states that ‘it is necessary in the interests of legal certainty that the principle of limitation be introduced and that implementing rules be laid down’ and that ‘the interests of undertakings and associations of undertakings on the one hand, and the requirements imposed by administrative practice, on the other hand, should be taken into account’. It is thus apparent from that recital that the EU legislature intended to circumscribe the Commission’s powers by introducing the mechanism of extinctive limitation periods, with the aim, in particular, of protecting the rights of undertakings on which the Commission intends to impose fines or periodic penalty payments.
241It therefore follows from the wording of Regulation No 1/2003, its context and the objectives which it pursues that the time limits laid down in Chapter VII thereof constitute limitation periods.
242It is apparent from settled case-law that compliance with a limitation period may not be raised by the EU judicature of its own motion but must be raised by the party affected (judgments of 14 June 2016, Marchiani v Parliament, C‑566/14 P, EU:C:2016:437, paragraph 94 and the case-law cited, and of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 99 and the case-law cited).
243That conclusion cannot be invalidated by the argument put forward by Singapore Airlines and Singapore Airlines Cargo that the plea based on the limitation period for the Commission’s powers to impose penalties should be treated in the same way as a plea of lack of competence, given that, after the expiry of the limitation period, the Commission was no longer competent to impose a fine on them.
244Although Article 25 of Regulation No 1/2003 requires the Commission to impose a penalty for a particular infringement within a certain period, beginning to run on the day on which that infringement was committed or, in the case of a continuing or repeated infringement, on the day on which the infringement ceased, that provision has neither the object nor the effect of divesting the Commission of its power to impose penalties in respect of infringements other than that covered by the limitation period. Furthermore, with regard to the latter infringement, it follows from Article 7(1) of Regulation No 1/2003 that the fact that the Commission no longer has the power to impose penalties on the perpetrators of that infringement because the limitation period has expired does not, in itself, preclude the adoption of a decision finding that that infringement was committed, provided, however, that the Commission demonstrates, in such a case, a legitimate interest in adopting a decision finding such an infringement. The Commission therefore remains competent, subject to demonstrating a legitimate interest, to make a finding of infringement where the limitation period has expired. In those circumstances, the fact that the Commission’s powers to impose penalties are time-barred cannot be equated with a lack of competence on the part of that institution.
245Nor can Singapore Airlines and Singapore Airlines Cargo validly rely on a breach of the principle of equal treatment resulting from the fact that their own procedural position is no different from that of the air carriers which were successful before the General Court in claiming that the Commission’s action was partially time-barred. Since the plea based on limitation is not a matter of public policy and it is for the undertaking affected to raise it, the fact that the General Court found that the limitation period had expired in respect of the undertakings which raised that plea cannot constitute an unjustified difference in treatment to the detriment of Singapore Airlines and Singapore Airlines Cargo. Contrary to what the appellants claim, that difference in treatment results exclusively from the objective circumstance that they refrained from raising the plea alleging that the limitation period had expired, whereas they could have done so under the same conditions as the other air carriers which raised that plea (see, to that effect, judgment of 14 November 2017, British Airways v Commission, C‑122/16 P, EU:C:2017:861, paragraph 98).
246Furthermore, as the Advocate General observed, in essence, in points 164 and 165 of his Opinion, the fact that the fines imposed under Article 23(2) of Regulation No 1/2003 should be classified as ‘criminal’ within the meaning of Article 6 ECHR, does not permit the inference that the plea based on the limitation period for the Commission’s powers to impose penalties is a plea involving a matter of public policy, as alleged by the appellants. Such a classification does not mean, in itself, that the limitation period for the Commission’s power to impose penalties under Article 25 of Regulation No 1/2003 pursues an objective in the public interest going beyond the protection of the undertakings concerned.
247The claim that the purpose of a limitation period is to ensure legal certainty and that, therefore, it should be treated in the same way as a procedural time limit in accordance with the settled case-law, relied on by Singapore Airlines and Singapore Airlines Cargo, according to which the period for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU is a matter of public policy, so that it is for the EU judicature to ascertain, of its own motion, whether it has been complied with, also does not permit the inference that the plea alleging that the period laid down in Article 25 of Regulation No 1/2003 had expired is a plea involving a matter of public policy, as purported by the appellants.
248Procedural time limits are laid down with a view to ensuring due administration of justice, clarity and legal certainty. Thus, in particular, periods prescribed for bringing proceedings, such as that laid down in the sixth paragraph of Article 263 TFEU, and for bringing appeals, such as that laid down in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union, are intended to ensure that administrative decisions and decisions of the courts become final and so to protect public interests (judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 50). That is not the case with the limitation period laid down in Article 25 of Regulation No 1/2003, which, as stated in paragraph 240 of the present judgment, is principally intended to protect the undertakings concerned. Furthermore, the mere claim that the purpose of a limitation period is to ensure legal certainty cannot justify it being treated in the same way as a procedural time limit when those two time restrictions are inherently different (judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 49).
249It follows from all the foregoing considerations that the expiry of the limitation period for the Commission’s power to impose penalties, provided for in Article 25 of Regulation No 1/2003, does not constitute a plea involving a matter of public policy which the General Court should have raised of its own motion.
250Consequently, the fourth ground of appeal is unfounded.
251Since none of the grounds of appeal relied on by Singapore Airlines and Singapore Airlines Cargo has been upheld, the appeal must be dismissed in its entirety.
Costs
252In 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.
253Under 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.
254Since the Commission has applied for costs to be awarded against Singapore Airlines and Singapore Airlines Cargo and the latter have been unsuccessful, Singapore Airlines and Singapore Airlines Cargo 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 Singapore Airlines Ltd and Singapore Airlines Cargo Pte Ltd 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.