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 airfreight services (fuel surcharge, security surcharge and refusal to pay commission on surcharges) — Inbound freight services — Territorial jurisdiction of the Commission — Qualified effects — Requirement of substantiality — Requirement of immediacy — Single and continuous infringement)In Case C‑381/22 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 9 June 2022,Japan Airlines Co. Ltd, established in Tokyo (Japan), represented by J.-F. Bellis, avocat, R. Burton, Solicitor, and K. Van Hove, advocaat,the other party to the proceedings being:European Commission, represented by A. Dawes and C. Urraca Caviedes, acting as Agents, and by J. Holmes, Barrister-at-Law,THE COURT (Fifth Chamber),composed of I. Jarukaitis (Rapporteur), President of the Fourth Chamber, acting as President of the Fifth Chamber, E. Regan and D. Gratsias, Judges,Advocate General: A. Rantos,Registrar: R. Stefanova-Kamisheva, Administrator,having regard to the written procedure and further to the hearing on 22 April 2024,after hearing the Opinion of the Advocate General at the sitting on 5 September 2024,gives the following
Judgment
1By its appeal, Japan Airlines Co. Ltd seeks to have set aside the judgment of the General Court of the European Union of 30 March 2022, Japan Airlines v Commission (T‑340/17, ‘the judgment under appeal’, EU:T:2022:181), by which the General Court dismissed in part its action seeking, principally, annulment of Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 [TFEU], Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case AT.39258 – Airfreight) (‘the decision at issue’), in so far as it concerns Japan Airlines; and, in the alternative, a reduction of the fine imposed on Japan Airlines in 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, Regulation No 1/2003 replaced Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ 1987 L 374, p. 1), which had been referred to in the annex to the EC-Switzerland Air Transport Agreement since the latter’s entry into force.
The FEU Treaty
5Article 101(1) TFEU provides:‘The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:(a) directly or indirectly fix purchase or selling prices or any other trading conditions;(b) limit or control production, markets, technical development, or investment;(c) share markets or sources of supply;…’
The EEA Agreement
6Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3; ‘the EEA Agreement’) corresponds, mutatis mutandis, to Article 101 TFEU.
7Regulation No 1/2003, as amended by Council Regulation (EC) No 411/2004 of 26 February 2004 (OJ 2004 L 68, p. 1), was incorporated into the EEA Agreement, first, by Decision of the EEA Joint Committee No 130/2004 of 24 September 2004 amending Annex XIV (Competition), Protocol 21 (On the implementation of competition rules applicable to undertakings) and Protocol 23 (Concerning the cooperation between the surveillance authorities) to the EEA Agreement (OJ 2005 L 64, p. 57), which entered into force on 19 May 2005, and, second, by 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.
Background to the dispute and the decision at issue
8The background to the dispute and the decision at issue, as set out in paragraphs 1 to 61 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.
9Japan Airlines is an air transport company. At the material time, Japan Airlines was a subsidiary of Japan Airlines Corp., which has been absorbed by Japan Airlines, its legal successor. It is active on the market for airfreight services through one of its divisions, named JAL Cargo.
10In 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
11On 7 December 2005, the European Commission received an application for immunity under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3), lodged by Deutsche Lufthansa AG and two of its subsidiaries, Lufthansa Cargo AG and Swiss International Air Lines AG. The application alleged that anticompetitive contacts were being maintained between a number of carriers with regard to elements of the price of services provided in the market for airfreight, namely the introduction of ‘fuel’ and ‘security’ surcharges and the refusal on the part of those carriers to pay the freight forwarders a commission on the surcharges (‘the refusal to pay commission’).
12On 14 and 15 February 2006, the Commission carried out unannounced inspections at the premises of a number of carriers.
13Following those inspections, a number of carriers, including Japan Airlines, submitted an application for immunity under the notice on immunity from fines and reduction of fines in cartel cases, referred to in paragraph 11 of the present judgment.
14On 19 December 2007, the Commission addressed a statement of objections to 27 carriers, including Japan Airlines, all of which subsequently submitted written observations. An oral hearing was held from 30 June to 4 July 2008.
The initial decision
15On 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 Japan Airlines.
16The 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
17By judgment of 16 December 2015, Japan Airlines v Commission (T‑36/11, EU:T:2015:992), the General Court annulled the initial decision in so far as it concerned Japan Airlines. 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.
18The General Court found that that decision was vitiated by a defective statement of reasons.
The decision at issue
19On 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.
20On 17 March 2017, the Commission adopted the decision at issue, which was addressed to 19 carriers, including Japan Airlines.
21That 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.
22In 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.
23In 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.
24In 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.
25First, 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, together with EU-third country routes, ‘EEA-third country routes’); and, lastly, Article 8 of the EC-Switzerland Air Transport Agreement to agreements and practices prior to 1 June 2002 concerning routes between airports within the European Union and Swiss airports (‘EU-Switzerland routes’). It stated, in recital 832 of that decision, that 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’.
26Second, 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’).
27In particular, in recital 1045 of that decision, the Commission stated that anticompetitive practices with regard to inbound freight services were ‘liable to have immediate, substantial and foreseeable effects within the EU [and the] EEA, as the increased costs of air transport to the EEA, and consequently higher prices of imported goods, are by their very nature liable to have effects on consumers in the EEA’. It added that, in the case at hand, those practices were liable to have such effects on the provision of airfreight services by other carriers within the EEA, between the different hubs in the EEA used by carriers from third countries and the airports of destination of those shipments in the EEA, to which the third-country carrier did not fly.
28Furthermore, 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.
29Subsection 5.3 of the decision at issue, relating to the application in the case at hand of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Switzerland Air Transport Agreement, comprises recitals 833 to 1052 of that decision. First, in recital 846 of that decision, the Commission found that the incriminated carriers had coordinated their conduct or influenced price setting, ‘ultimately amounting to price fixing with regard to’ the fuel surcharge, the security surcharge and the payment of commission on surcharges to freight forwarders. In recital 861 of that decision, the Commission found that the ‘overall scheme to coordinate the pricing behaviour for [freight] services’ revealed by its investigation demonstrated the existence of a ‘complex infringement consisting of various actions which [could] be either classified as an agreement or concerted practice, within which the competitors knowingly substituted practical cooperation between them for the risks of competition.’
30Second, in recital 869 of the decision at issue, the Commission considered that ‘the conduct in question constitute[d] a single and continuous infringement of Article 101 [TFEU]’, stating, in recitals 870 to 902 of the decision, that the arrangements in question pursued a single anticompetitive aim of distorting competition in the freight sector within the EEA, concerned the provision of freight services and the pricing thereof, concerned the same undertakings, were of a single and continuous nature, and related to three elements, namely the fuel surcharge, the security surcharge and the refusal to pay commission. In that context, the Commission stated, in recital 881 of that decision, that Japan Airlines was involved in those three elements.
31Third, 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.
32Fourth, 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.
33Fifth, 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.
34Section 7 of the decision at issue, headed ‘Duration of the infringement’, contains recitals 1146 to 1169 of that decision. As is apparent from recital 1146 of that decision, the Commission found that the cartel at issue had started on 7 December 1999 and lasted until 14 February 2006. In recital 1146, it stated that that cartel had infringed:– Article 101 TFEU, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the European Union;– Article 101 TFEU, from 1 May 2004 to 14 February 2006, as regards air transport on EU-third country routes;– Article 53 of the EEA Agreement, from 7 December 1999 to 14 February 2006, as regards air transport between airports within the EEA;– Article 53 of the EEA Agreement, from 19 May 2005 to 14 February 2006, as regards air transport on non-EU EEA-third country routes;– Article 8 of the EC-Switzerland Air Transport Agreement, from 1 June 2002 to 14 February 2006, as regards air transport on EU-Switzerland routes.
35In recital 1169 of that decision, the Commission found that the duration of the infringement to be taken into account as regards Japan Airlines ran from 7 December 1999 until 14 February 2006.
36In 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). It applied, inter alia, on the basis of point 37 of those guidelines, a reduction of 50% to the basic amounts of the fines, as part of the services relating to inbound routes and routes from the EEA to third countries, with the exception of EU-Switzerland routes, were performed outside the territory covered by the EEA Agreement and part of the harm was therefore likely to have occurred outside that territory. In addition, pursuant to point 29 of those guidelines, it granted the incriminated carriers an additional reduction of 15% of the basic amounts, on the ground that some regulatory regimes had encouraged the cartel at issue.
37Articles 1, 3 and 4 of the operative part of the decision at issue are worded as follows:‘Article 1By coordinating their pricing behaviour in the provision of airfreight services on a global basis with respect to the fuel surcharge, the security surcharge and the payment of commission payable on surcharges, the following undertakings have committed the following single and continuous infringement of Article 101 [TFEU], Article 53 of [the EEA Agreement] and Article 8 of [the EC-Switzerland Air Transport Agreement] as regards the following routes and for the following periods.(1) The following undertakings have infringed Article 101 [TFEU] and Article 53 of [the] EEA Agreement as regards routes between airports within the EEA, for the following periods:…(h) [Japan Airlines], from 7 December 1999 until 14 February 2006;…(2) The following undertakings infringed Article 101 [TFEU] as regards [EU-third country routes], for the following periods:…(h) [Japan 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:…(h) [Japan 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:…(h) [Japan 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:…(h) [Japan Airlines]: EUR 35700000;…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
38By application lodged at the Registry of the General Court on 30 May 2017, Japan Airlines brought an action seeking the annulment of the decision at issue in so far as that decision concerned it, and, in the alternative, a reduction of the fine imposed on it by that decision.
39In support of its action, Japan Airlines had raised 10 pleas for annulment. Among those pleas, the first alleged breach of the principle ne bis in idem, infringement of Article 266 TFEU and expiry of the limitation period. The fifth alleged a lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services.
40By way of the judgment under appeal, the General Court annulled Article 1(1)(h) and (4)(h) of the decision at issue, in so far as it established that Japan Airlines had infringed Article 101 TFEU and Article 53 of the EEA Agreement as regards routes between airports within the EEA, and Article 8 of the EC-Switzerland Air Transport Agreement as regards routes between airports within the European Union and airports in Switzerland. It found that the Commission had infringed the rules on limitation by penalising the appellant for the single and continuous infringement in respect of those routes, but that that was not such as to entail the annulment of the decision at issue in its entirety, since Japan Airlines did not demonstrate that the Commission had erred in finding that it had participated in that infringement.
41In the exercise of its unlimited jurisdiction, the General Court also set the amount of the fine imposed on Japan Airlines at EUR 28875000. It observed, inter alia, that Japan Airlines had not achieved any turnover on the routes referred to in the annulled provisions of the decision at issue.
Forms of order sought by the parties to the appeal
42By its appeal, Japan Airlines submits that the Court should:– set aside the judgment under appeal in so far as the General Court held that Article 101 TFEU and Article 53 of the EEA Agreement apply to inbound freight services on EEA-third country routes;– annul the decision at issue in its entirety;– in the alternative, annul that decision in so far as it finds that Article 101 TFEU and Article 53 of the EEA Agreement apply to inbound freight services on EEA-third country routes, and reduce the fine to EUR 26775000 or to such other amount as the Court of Justice sees fit; and– order the Commission to pay the costs of both sets of court proceedings.
43The Commission contends that the Court should:– dismiss the appeal and order Japan Airlines to pay the costs;– in the alternative, if the Court of Justice were to uphold the appeal, refer the case back to the General Court and reserve the costs.
The appeal
44Japan Airlines puts forward two grounds in support of its appeal. The first ground of appeal alleges that the General Court erred in law in refusing to address the appellant’s plea which claimed that the decision at issue infringed Article 101 TFEU and Article 53 of the EEA Agreement by prohibiting conduct with respect to inbound freight services that do not restrict competition within the EEA and by incorrectly relying on a test derived from public international law, namely a test based on the qualified effects of anticompetitive practices in the European Union (‘the qualified effects test’), in order to establish the Commission’s jurisdiction under EU law. The second ground of appeal, put forward in the alternative, alleges infringement of Article 101 TFEU and Article 53 of the EEA Agreement in the application of the qualified effects test in finding that the Commission had jurisdiction to apply those provisions in relation to inbound freight services.
The first ground of appeal, concerning the test for establishing the Commission’s jurisdiction in relation to inbound freight services
Arguments of the parties
45By its first ground of appeal, Japan Airlines submits that the General Court erred in law in refusing to address the first part of the fifth plea at first instance, by which it challenged the Commission’s finding that the application of Article 101 TFEU to conduct relating to inbound routes was consistent with the test based on the place in which anticompetitive practices are implemented (‘the implementation test’).
46The justification put forward by the General Court for its refusal to examine that argument is, according to paragraph 79 of the judgment under appeal, that the implementation test and the qualified effects test constitute two alternative bases on which the Commission’s jurisdiction to apply Article 101 TFEU may be founded under international law. Since it is stated in paragraph 165 of that judgment that the conditions for applying the qualified effects test were met, the General Court found it unnecessary to examine the appellant’s plea challenging the application of the implementation test in the decision at issue.
47According to Japan Airlines, that reasoning is vitiated by two errors of law. In the first place, contrary to what the General Court implicitly suggests, the argument relating to the implementation test in the first part of the fifth plea at first instance was based not on public international law, but solely on EU law, namely the requirement laid down in Article 101 TFEU that the conduct at issue must restrict competition ‘within the internal market’. The General Court’s finding that the Commission allegedly had jurisdiction under public international law to adopt a decision with respect to inbound routes did not dispense it from the obligation to examine the argument that the Commission had no such jurisdiction under EU law.
48In the second place, it submits that, while the ‘qualified effects’ doctrine is undoubtedly a concept of public international law, the same cannot be said of the ‘implementation’ concept. The latter is a concept of EU law, developed by the Court of Justice in the judgment of 27 September 1988, Ahlström Osakeyhtiö and Others v Commission (89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:447), on the basis of an analysis of the wording of Article 85 EEC and, in particular, the requirement that competition must be restricted ‘within the common market’. In that judgment, the Court found that it was irrelevant for the application of Article 85 EEC – now Article 101 TFEU – whether or not a pricing agreement had been entered into in a third country as long as it concerned prices charged to customers in the European Community or, in other words, as long as the agreement was implemented in the European Community. The fact that the Court held in that judgment that such a determination of the territorial scope of Article 85 EEC was consistent with ‘the territoriality principle as universally recognised in public international law’ does not turn the implementation test into a concept of public international law.
49The appellant maintains that, while it is true that an examination of public international law is clearly relevant where the competence of an EU institution to adopt a particular act is disputed under that law, such an examination is of no assistance when it is the competence of that institution to adopt an act under EU law which is being challenged.
50Thus, it argues, if Article 101 TFEU did not allow the Commission to take action with respect to conduct concerning inbound routes since no sales of freight services to EEA customers were involved, that conclusion could not be called into question solely by virtue of the fact that such action would be permissible under public international law. However, in the present case, the General Court relied on public international law in order to find that the Commission had competence to penalise conduct which does not satisfy an essential condition for falling within the scope of Article 101 TFEU, namely a finding that such conduct restricts competition on the airfreight services market within the internal market. It submits that the General Court therefore erred in law in considering that public international law allowed the scope of Article 101 TFEU to be extended.
51In that context, Japan Airlines adds that, contrary to what the General Court states in paragraph 100 of the judgment under appeal, it never submitted that ‘the qualified effects test is enshrined in the wording of Article 101 TFEU’. On the contrary, in paragraph 31 of its reply before the General Court, it stated that ‘reliance on the concept of qualified effects cannot override the clear wording of Article 101 TFEU which only prohibits agreements which restrict competition “within the internal market”’.
52The Commission disputes that line of argument.
Findings of the Court
53In its judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), the Court of Justice, hearing a ground of appeal which criticised the General Court for having held that the Commission’s jurisdiction under public international law to find and punish, in accordance with Article 102 TFEU, conduct adopted outside the European Union could be established on the basis of either the implementation test or the qualified effects test, held, in paragraph 46 of that judgment, that the qualified effects test may, by itself, serve as a basis for the Commission’s jurisdiction.
54The Court reached that conclusion after recalling, in paragraphs 42 and 45 of that judgment, first, that the EU competition rules set out in Articles 101 and 102 TFEU are intended to prevent collective or unilateral conduct of undertakings limiting competition within the internal market and, second, that the implementation test and the qualified effects test pursue the same objective, namely preventing conduct which, while not adopted within the European Union, has anticompetitive effects liable to have an impact on the EU market.
55It follows that the implementation test and the qualified effects test are alternative and that solely one of those tests is, by itself, sufficient to justify under public international law the Commission’s jurisdiction to apply EU competition law to conduct adopted outside the European Union.
56Japan Airlines is therefore incorrect, first, in claiming that the General Court erred in law when it held, in paragraph 93 of the judgment under appeal, that the qualified effects test makes it possible to establish the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to anticompetitive conduct adopted outside the territory of the European Union or the EEA and, consequently, that the Commission was entitled to rely on that test in order to establish its jurisdiction over the cartel at issue in so far as it related to inbound freight services.
57Second, it follows that Japan Airlines is also incorrect to argue that the General Court erred in law in considering, in paragraph 79 of the judgment under appeal, that the qualified effects test was an alternative to the implementation test and in holding, therefore, in paragraph 165 of that judgment that, since it found 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, it was no longer necessary to examine Japan Airlines’s line of argument alleging errors in the application of the implementation test. The Commission’s jurisdiction under EU law to prevent conduct adopted outside the European Union or the EEA may be established even if it is not proved that the agreements or concerted practices in question have as their object or effect the prevention, restriction or distortion of competition within the internal market.
58Third, as regards Japan Airlines’s claim that, contrary to what is stated in paragraph 100 of the judgment under appeal, it never submitted that ‘the qualified effects test is enshrined in the wording of Article 101 TFEU’, that argument is ineffective. Even if the General Court had incorrectly attributed such an argument to Japan Airlines, that would have no bearing on the conclusion set out in the two preceding paragraphs concerning the main premiss on which Japan Airlines’s present ground of appeal is based, namely that the qualified effects test and the implementation test are not alternative tests.
59The first ground of appeal must therefore be rejected as in part ineffective and in part unfounded.
The second ground of appeal, concerning the application of the qualified effects test and the application of Article 101 TFEU and of Article 53 of the EEA Agreement to inbound freight services
60The second ground of appeal consists of two parts. By the first part, the appellant submits that the General Court erred in law in finding that, since the Commission had considered that the conduct at issue on inbound routes formed part of a worldwide cartel encompassing outbound routes, the effect of the worldwide cartel within the EEA was sufficient to satisfy the qualified effects test. By the second part, it submits that the General Court erred in law in applying the qualified effects test to the conduct on inbound routes taken in isolation.
61It is appropriate to examine the second part first.
The second part, alleging errors of law in the analysis of qualified effects
–Arguments of the parties
62In the first place, Japan Airlines submits that the General Court erred in law in finding that a restriction by object in itself produces a relevant effect for the purposes of the application of the qualified effects test and, in any event, in applying that legal test in order to identify a restriction of competition by object.
63In that regard, first, it maintains that the General Court erred when it held, in paragraph 103 of the judgment under appeal, that, in the circumstances of the case, once the Commission had categorised the conduct as a restriction of competition by object, that institution was no longer obliged to demonstrate that the conduct produced qualified effects within the EEA. Relying on the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), the General Court stated that it was not necessary to show that the conduct at issue had an actual anticompetitive effect within the EEA, but rather that it was sufficient to take account of the probable effects. However, the General Court held, in essence, that restrictions of competition by object, by their nature, give rise to probable effects on competition within the EEA.
64According to the appellant, it follows from the case-law of the Court of Justice that, in order for conduct to be categorised as a restriction by object, it is sufficient that it has the potential to produce negative effects on competition or that it is capable of producing such effects, which is a significantly lower legal standard than that resulting from the application of the qualified effects test.
65Second, Japan Airlines submits that, in any event, the General Court erred in holding, in paragraph 104 of the judgment under appeal, without making any further assessment, that conduct undertaken and implemented outside the EEA relating to services sold outside the EEA was sufficiently harmful to competition within the internal market to be considered a restriction of competition by object. It is clear from the case-law that, in determining whether conduct may be categorised as a restriction of competition by object, it is necessary to assess on a case-by-case basis, taking into account all relevant background circumstances, the restrictive effect of the conduct on competition within the EEA. It follows that it is also necessary to assess whether there is a causal link between the conduct and the alleged anticompetitive effect within the EEA. Yet, the General Court simply upheld the Commission’s finding that the conduct relating to inbound routes could be categorised as a restriction by object without a full assessment of the circumstances of the case, in particular the fact that the conduct was undertaken and implemented outside the EEA in relation to services sold outside the EEA.
66In that regard, Japan Airlines claims that it cannot be presumed that conduct undertaken and implemented outside the EEA in relation to services sold outside the EEA, even where it involves coordination on elements of price, gives rise to a sufficient anticompetitive effect within the internal market for such conduct to be categorised as a restriction of competition by object. Rather, it is necessary to establish the effect of such conduct, or at least to show that it is capable of revealing a sufficient anticompetitive effect within the internal market.
67It maintains that, by analogy, in the judgment of 28 April 1998, Javico (C‑306/96, EU:C:1998:173, paragraphs 20 and 21), the Court of Justice found that a ban on exporting to the European Union from a country outside the European Union did not constitute a restriction of competition by object, while the same export ban between Member States of the European Union did constitute such a restriction. The Court further considered that the ban on exporting from a third country could only come within the ambit of Article 101(1) TFEU if it were established, based on an assessment of all the relevant facts of the case, that the clause at issue had a sufficient anticompetitive effect within the European Union. That case-law makes clear that conduct which amounts to a restriction by object when it takes place within the European Union is not caught by Article 101(1) TFEU when it takes place outside the EEA, unless it appears from an assessment of all the relevant facts of the case that that conduct had sufficient anticompetitive effects within the European Union. In other words, a restriction by object becomes a restriction by effect when it takes place in an extraterritorial context. However, the Commission expressly stated in recital 917 of the decision at issue that it had made no assessment of anticompetitive effects. The General Court therefore erred in law when, in paragraph 104 of the judgment under appeal, it dismissed the relevance of the absence of that assessment.
68In the second place, Japan Airlines submits that, in any event, in its application of the qualified effects test, the General Court erred in finding that the Commission had satisfied that test, relying on reasoning and evidence on which the Commission had not relied in the decision at issue. In so doing, the General Court reversed the burden of proof.
69Thus, according to the appellant, while the Commission, in recital 1045 of the decision at issue, justified the application of the qualified effects test in a single sentence, the General Court, in paragraphs 116 to 153 of the judgment under appeal, sets out extensively its own reasoning, relating to the requirements of foreseeability, substantiality and immediacy, in order to justify the application of that test. In so doing, the General Court substituted its own reasoning for that of the Commission and therefore made a number of errors of law, including a breach of Japan Airlines’s rights of defence.
70In addition, it submits that the General Court reversed the burden of proof, first of all, in the examination of the requirement relating to foreseeability, when it stated, in paragraph 121 of the judgment under appeal, that Japan Airlines had failed to demonstrate that a ‘waterbed effect’ was so probable as to render the effect at issue unforeseeable and, moreover, in paragraph 125 of that judgment, that it 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. Furthermore, the General Court reversed the burden of proof in the examination of the requirement relating to substantiality when it stated, in paragraph 140 of that judgment, that Japan Airlines merely made assertions in disputing that the price of freight services was a significant cost element of the goods transported that had an impact on their sale. However, the appellant argues that it is not for Japan Airlines to prove that the Commission has jurisdiction.
71In the third place, Japan Airlines submits that the General Court erred in law in its application of the requirements relating to substantiality and immediacy.
72In that regard, first, it maintains that the General Court incorrectly applied the requirement of substantiality, since the elements on which it relied in paragraphs 132 to 142 of the judgment under appeal relate to the substantiality of the conduct on inbound routes in Japan rather than within the EEA. The factors on which the General Court relied, namely the duration, scope and nature of the conduct as well as the proportionate value of surcharges and the combined market share of the addressees of the decision at issue, are relevant for assessing whether the conduct has a substantial effect on the price of airfreight services in Japan. However, in its appraisal, the General Court failed to take into account the fact that any effect produced by the conduct at issue within the EEA is – according to its own reasoning set out in paragraphs 120 to 130 of the judgment under appeal – situated at least two steps downstream from the conduct in Japan, which would diminish the substantiality of the effect thus analysed.
73Second, as regards the requirement of immediacy, Japan Airlines maintains that the approach taken by the General Court in paragraphs 144 to 146 of the judgment under appeal renders that requirement meaningless, in that it amounts to holding that the intervention of independent third parties in determining whether or not to pass on the increase in cost elements downstream is not sufficient to break the causal chain. Such an approach results in an extremely broad application of the qualified effects test, which would make it possible to cover almost any conduct, including where a product is sold by several intermediaries before being placed on the market in the EEA. In order to preserve the relevance of the requirement of immediacy, it should not be possible for effects as remote as those at issue in the present case to be taken into account in the context of the application of the qualified effects test.
74The Commission contends that that second part is unfounded.
–Findings of the Court
75In the first place, it should be noted that the General Court stated, in paragraph 99 of the judgment under appeal, that, where conduct has been found by the Commission, as in the present case, to reveal a degree of harmfulness to competition in the internal market or within the EEA such that it could be classified as a restriction of competition ‘by object’ within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement, the application of the qualified effects test cannot require the demonstration of the actual effects which classification of conduct as a restriction of competition ‘by effect’ within the meaning of those provisions presupposes.
76Similarly, the General Court stated, in paragraph 103 of that judgment, that interpreting the qualified effects test, as Japan Airlines appeared to advocate, as requiring proof of the actual effects of the conduct at issue even where there is a restriction of competition ‘by object’ would amount to making the Commission’s jurisdiction to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement subject to a condition which has no basis in the wording of those provisions.
77On that basis, the General Court inferred, in paragraph 104 of that judgment, that Japan Airlines could neither (i) validly claim that the Commission erred in finding that the qualified effects test was satisfied, even though it had 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.
78However, as the grounds set out in the second part of paragraph 104 of the judgment under appeal already state, it cannot be inferred from those paragraphs contested by Japan Airlines that, for the purpose of establishing 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.
79It is in fact clear from an overall reading of paragraphs 95 to 115 of the judgment under appeal that, in the contested paragraphs, the General Court merely concerned itself with rejecting the line of argument, summarised in paragraph 82 of that judgment, which Japan Airlines had submitted. Thus, in those paragraphs, the General Court set out the reasons why Japan Airlines was wrong to maintain that the fact that, in the grounds of the decision at issue relating, as regards recital 917 of that decision, to the classification of the restriction of competition in question and, as regards recitals 1190 and 1277 thereof, to the calculation of the fine, the Commission had indicated that it was not necessary to demonstrate actual anticompetitive effects, given that the anticompetitive object of the conduct alleged 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 in order to establish its jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services.
80On 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.
81On 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 115 to 153 of the judgment under appeal concerning the coordination in relation to inbound freight services taken in isolation, and in paragraphs 154 to 164 of that judgment concerning the single and continuous infringement taken as a whole.
82In those circumstances, Japan Airlines misreads the judgment under appeal when it submits that the General Court held that, 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, it was possible to dispense with the demonstration of such effects where that conduct may be classified as a restriction of competition by object.
83The line of argument set out in paragraphs 62 to 64 of the present judgment must, accordingly, be rejected as unfounded. The same is therefore true of the line of argument set out in paragraphs 65 to 67 of the present judgment, since it is based on the premiss that, in the contested paragraphs of the judgment under appeal, the General Court incorrectly classified the cartel at issue as a restriction of competition by object, whereas, as is apparent from the foregoing analysis, the General Court, in those paragraphs, did not rule on that point; it merely recalled the considerations set out by the Commission in the decision at issue as regards the classification of the infringement and the calculation of the fine. Moreover, Japan Airlines did not even claim before the General Court that such a classification of the cartel at issue in the decision at issue was incorrect.
84In the second place, it should be noted that it is, admittedly, clear from the case-law that the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings under Articles 101 and 102 TFEU, which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the applicant at first instance and taking into account all the elements submitted by the latter. However, in the context of that review, the Courts of the European Union may in no circumstances substitute their own reasoning for that of the author of the contested act (judgment of 4 July 2024, Westfälische Drahtindustrie and Pampus Industriebeteiligungen v Commission, C‑70/23 P, EU:C:2024:580, paragraph 38 and the case-law cited).
85The General Court therefore cannot fill, by means of its own reasoning, a gap in the reasoning in that act in such a way that its examination does not relate to any assessment carried out in that act (judgment of 18 July 2013, UEFA v Commission, C‑201/11 P, EU:C:2013:519, paragraph 65 and the case-law cited).
86However, where the General Court merely responds to the line of argument raised before it and explains the reasoning of the act at issue, it cannot be considered that the General Court is substituting its own reasoning for that of the author of that act (see, to that effect, judgments of 12 June 2014, Deltafina v Commission, C‑578/11 P, EU:C:2014:1742, paragraph 56, and of 23 November 2023, Ryanair v Commission, C‑209/21 P, EU:C:2023:905, paragraph 49).
87In the present case, as is clear from paragraphs 89 and 105 of the judgment under appeal, the first sentence of recital 1045 of the decision at issue contained, albeit succinctly, the factors that enabled the General Court to ascertain whether the Commission had established its extraterritorial jurisdiction in the light of the qualified effects test. It is those factors which, read in the light of the other relevant recitals of that decision, referred to in paragraphs 110, 118 to 121, 124, 127, 135 to 137, 140 and 141 of the judgment under appeal, enabled the General Court to ascertain that the Commission had indeed established the existence of those effects. It is also clear from paragraphs 95 to 153 of the judgment under appeal that the General Court, in those paragraphs, merely responded to the line of argument raised before it by Japan Airlines and explained the reasoning of the decision at issue, in particular by drawing certain conclusions from the factors contained therein. Accordingly, having regard to the case-law recalled in the preceding paragraph of the present judgment, the claim that the General Court, in paragraphs 95 to 153 of the judgment under appeal, substituted its own grounds for that of the Commission has not been established.
88Moreover, as regards the claims of a breach of the rights of the defence, it suffices to observe that, since, contrary to what Japan Airlines maintains, the General Court did not substitute grounds by relying on a line of argument raised by the Commission in the course of the proceedings, but rather reproduced in the judgment under appeal the elements of reasoning contained in the decision at issue, Japan Airlines cannot validly claim that the General Court relied on case-law and an analysis in respect of which it allegedly did not have the opportunity to present its point of view.
89In addition, as regards the claim that the burden of proof was reversed, it should be recalled that, according to settled case-law, it is for the Commission to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement of competition law. By contrast, it is for the undertaking raising a defence against the finding of such an infringement to prove that that defence must be upheld. However, even though, according to those principles, the burden of proof is borne either by the Commission or by the undertaking concerned, the factual evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the rules on the burden of proof have been met (see, to that effect, judgment of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraph 120 and the case-law cited).
90That 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.
91As regards the complaint relating to paragraph 121 of the judgment under appeal, it must be observed that, in that paragraph, the General Court noted that the price of freight services consisted, as was apparent from recital 17 of the decision at issue, of rates and surcharges, including the fuel surcharge and the security surcharge, and that, unless it were considered that an increase in the fuel surcharge and the security surcharge would, as a result of a sufficiently probable ‘waterbed effect’, be offset by a corresponding reduction in those rates and other surcharges, such an increase was, in principle, liable to lead to an increase in the total price of inbound freight services. Admittedly, the General Court added that Japan Airlines had failed to demonstrate that a ‘waterbed effect’ was so probable as to render the effect on the prices of imported goods unforeseeable. However, that finding is preceded, in paragraphs 118 to 120 and in the first sentence of paragraph 121 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.
92Thus, it was only once it had assessed the decision at issue and found that the Commission had established the foreseeability of such an increase to the requisite standard that the General Court examined whether Japan Airlines had adduced evidence to rebut that finding. In those circumstances, the General Court did not reverse the burden of proof in holding that it was for Japan Airlines to adduce evidence to the contrary in order to rebut such findings. Therefore, the complaint relating to paragraph 121 of the judgment under appeal must be rejected as unfounded.
93As regards the complaint relating to paragraph 125 of the judgment under appeal, it should be noted that, in that paragraph, the General Court stated that Japan Airlines had not put forward any evidence demonstrating that the circumstances of the case were not conducive to passing on the additional costs resulting from the single and continuous infringement on inbound routes to shippers downstream. It had previously found, first of all, in paragraphs 118 to 122 of that judgment, that it was apparent from various elements in the decision at issue that the members of the cartel at issue could reasonably have foreseen that the single and continuous infringement would have the effect, in so far as it concerned inbound freight services, of increasing the price of freight services on inbound routes. It then observed, in paragraph 123 of that judgment, that the question was therefore whether it was foreseeable for the incriminated carriers that freight forwarders would pass on such additional costs to their own customers, namely shippers. In that respect, the General Court found, in paragraph 124 of the judgment under appeal, that it was apparent from recitals 14 and 70 of the decision at issue that the price of freight services constitutes an input for freight forwarders and that it is a variable cost, the increase in which, in principle, has the effect of increasing the marginal cost in the light of which the freight forwarders determine their own prices.
94It follows that, given that the General Court had previously found that the Commission had established to the requisite standard the facts noted by it in paragraphs 118 to 124 of the judgment under appeal, it cannot be held that, by making the finding set out in paragraph 125 of that judgment, the General Court unlawfully reversed the burden of proof. The complaint relating to paragraph 125 of that judgment must therefore be rejected as unfounded.
95As regards the complaint relating to paragraph 140 of the judgment under appeal, it suffices to observe that it was only after noting that it was apparent from recital 1031 of the decision at issue that the price of freight services was a significant cost element of the goods transported which had an impact on their sale that the General Court stated that Japan Airlines merely disputed that finding by making assertions. The complaint relating to paragraph 140 of that judgment must therefore be rejected as unfounded.
96Consequently, the line of argument set out in paragraphs 68 and 70 of the present judgment must be rejected as unfounded.
97In the third place, 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.
98Thus, when the General Court has found or assessed the facts, the Court of Justice has jurisdiction, under Article 256 TFEU, solely to review the legal characterisation of those facts and the legal conclusions which were drawn from them (see, to that effect, judgments of 28 May 1998, Deere v Commission, C‑7/95 P, EU:C:1998:256, paragraph 21, and of 11 January 2024, Planistat Europe and Charlot v Commission, C‑363/22 P, EU:C:2024:20, paragraph 50 and the case-law cited).
99By contrast, the General Court 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).
100In the present case, Japan Airlines complains, first of all, that the General Court took into account a series of factors in order to assess whether the substantiality of the effect on the prices of imported goods had been established, even though those factors are indicative of the substantiality of qualified effects in Japan but not within the EEA.
101In so doing, Japan Airlines challenges the findings made by the General Court in paragraphs 132 to 142 of the judgment under appeal. However, in those paragraphs, the General Court merely set out and assessed the facts, as they appeared from recitals 1146, 1215, 1217, 889 and 1030 of the decision at issue concerning the duration, scope and nature of the infringement, and, for the sake of completeness, from recitals 1031 and 1209 of that decision and from certain evidence concerning the proportion of the surcharges in the total price of freight services and the combined market share of the incriminated carriers.
102It is therefore clear that, by that line of argument, Japan Airlines, in so far as it submits that those factors do not permit a finding of a substantial effect within the EEA, is asking that the Court of Justice carry out a fresh assessment of the facts already assessed by the General Court in paragraphs 132 to 142 of the judgment under appeal, which falls outside the scope of the Court of Justice’s jurisdiction on appeal, in accordance with the case-law recalled in paragraph 99 of the present judgment, since no distortion of those facts has been alleged. That line of argument must consequently be rejected as inadmissible.
103As to the remainder, with regard to the requirement of immediacy, inasmuch as Japan Airlines complains that the General Court applied that requirement extensively in paragraphs 144 to 146 of the judgment under appeal, it need only be observed that its line of argument in that regard is based on a misreading of those paragraphs and that it must, therefore, be rejected as unfounded. Contrary to what Japan Airlines suggests, the General Court did not in any way rule out the possibility that the intervention of independent third parties in determining whether or not to pass on the increase in cost elements downstream might break the causal chain; rather, it held, as is apparent in particular from paragraph 146 of that judgment, that that was not the case where such an intervention objectively results from the cartel at issue, in accordance with the normal functioning of the market. Japan Airlines does not argue that that assessment is vitiated by an error of law.
104Consequently, the second part of the second ground of appeal must be rejected as, in part, inadmissible and, in part, unfounded.
The first part, alleging an error in law in that the General Court found that the effect of the worldwide cartel within the EEA was sufficient to satisfy the qualified effects test
–Arguments of the parties
105Japan Airlines submits, in the first place, that, in order to establish the Commission’s jurisdiction in the present case, each element of the single and continuous infringement must, in itself, fall within the scope of Article 101 TFEU.
106However, it argues, paragraphs 154 to 157 of the judgment under appeal imply that, in order for the Commission’s jurisdiction to be triggered, it is sufficient for that institution to find that conduct implemented outside the EEA and which, in itself, has no effects within the EEA is part of the same single and continuous infringement as conduct implemented or having effects within the EEA. The approach suggested by the General Court would enable the Commission, through the application of the test for a single and continuous infringement, to extend its jurisdiction to conduct that does not substantively fall within the scope of Article 101 TFEU. This risks giving the Commission potentially unlimited jurisdiction over conduct adopted anywhere in the world, provided that it considers that a given instance of conduct forms part of a single and continuous infringement, of which some – but not all – elements produce effects within the EEA.
107According to Japan Airlines, each element of a single and continuous infringement, in itself, must be capable of constituting an infringement of Article 101 TFEU. This is particularly important in cases such as the present one where the conduct relating to inbound routes, consisting in the fixing of surcharges for flights departing from outside the EEA, namely, in the case of Japan Airlines, Japan, (i) was not interdependent with the conduct relating to outbound routes, consisting in the fixing of surcharges for flights departing from within the EEA, (ii) was implemented entirely outside the EEA, (iii) did not in itself produce effects within the EEA, and (iv) therefore constituted a separate course of behaviour distinct from the conduct on outbound routes. The concept of a ‘single and continuous infringement’ cannot be used to circumvent the bounds of the Commission’s jurisdiction or to extend the scope of Article 101 TFEU to conduct which does not in itself fall within the Commission’s jurisdiction or satisfy the conditions for the application of that article.
108In the second place, Japan Airlines submits that, in any event, the General Court erred in holding, in paragraphs 158 to 164 of the judgment under appeal, that the Commission was entitled to find that the conduct relating to inbound routes in which that carrier was involved formed part of a single and continuous infringement with the conduct on outbound routes without first establishing that the conduct relating to inbound routes had a sufficient nexus with the EEA to be properly considered to pursue the same purpose as the conduct on outbound routes. Such an interpretation would allow the Commission to find that the coordination of surcharges on flights between Japan and the United States infringes Article 101 TFEU simply because such coordination pursues the same purpose as coordination on outbound routes between the EEA and third countries, namely that of restricting competition worldwide.
109Japan Airlines maintains that the purpose of each element of a single and continuous infringement must be to restrict competition within the EEA. In the present case, Japan Airlines’s conduct on inbound routes clearly pursued a different purpose from that pursued by the conduct on outbound routes, since its conduct on inbound routes concerned competition within the Japanese market. In that regard, the General Court incorrectly states, in paragraph 158 of the judgment under appeal, that Japan Airlines did not contest that the conduct in relation to inbound routes formed part of the single and continuous infringement found in the decision at issue. In fact, Japan Airlines had argued that its conduct could not even constitute an infringement because it fell outside the scope of Article 101 TFEU, as it did not restrict competition within the EEA.
110The Commission contends that that part of the ground of appeal is unfounded.
–Findings of the Court
111It must be observed that, by its fifth plea before the General Court, Japan Airlines confined itself to disputing the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to the conduct at issue in so far as it related to inbound freight services. In that connection, the General Court found, in paragraph 153 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 had been disputed – was established. It follows that it was for the sake of completeness that, in paragraphs 154 to 164 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.
112Moreover, as is clear from all of the foregoing examination relating to the second part of the second 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 153 of the judgment under appeal.
113In those circumstances, it must be held that the present part is aimed at grounds of the judgment under appeal included purely for the sake of completeness. According to settled case-law, complaints directed against grounds included in a decision of the General Court purely for the sake of completeness cannot lead to the decision being set aside and are therefore ineffective (judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 537, and of 4 October 2024, thyssenkrupp v Commission, C‑581/22 P, EU:C:2024:821, paragraph 263 and the case-law cited).
114It follows from the foregoing that the first part of the second ground of appeal must be rejected as ineffective.
115In the light of all the foregoing considerations, the second ground of appeal must be rejected in its entirety.
116As none of the grounds put forward by Japan Airlines in support of its appeal has been upheld, the appeal must be dismissed in its entirety.
Costs
117In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
118Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
119Since the Commission has applied for costs to be awarded against Japan Airlines and the latter has been unsuccessful, Japan Airlines must be ordered to bear its own costs and to pay those incurred by the Commission.
Operative part
On those grounds, the Court (Fifth Chamber) hereby:
1.Dismisses the appeal;
2.Orders Japan Airlines Co. 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.