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 taken as a whole — Substitution of grounds — Restriction of competition by object — Examination of the legal and economic context — Scope — Criteria for characterising a single and continuous infringement — Liability for all the forms of conduct comprising that infringement — Conditions — Duration of participation in such an infringement — Lack of evidence of participation in an element of that infringement during significant periods of time — Equal treatment)In Case C‑401/22 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 16 June 2022,Cargolux Airlines International SA, established in Sandweiler (Luxembourg), represented by E. Aliende Rodríguez, abogada,the other party to the proceedings being:European Commission, represented initially by A. Dawes, N. Khan and I. Söderlund, acting as Agents, and subsequently by A. Dawes and I. Söderlund, acting as Agents,THE COURT (Fifth Chamber),composed of I. Jarukaitis (Rapporteur), President of the Fourth Chamber, acting as President of the Fifth Chamber, E. Regan and D. Gratsias, Judges,Advocate General: A. Rantos,Registrar: R. Stefanova-Kamisheva, Administrator,having regard to the written procedure and further to the hearing on 17 April 2024,after hearing the Opinion of the Advocate General at the sitting on 5 September 2024,gives the following
Judgment
1By its appeal, Cargolux Airlines International SA (‘Cargolux’) seeks to have set aside the judgment of the General Court of the European Union of 30 March 2022, Cargolux Airlines v Commission (T‑334/17, ‘the judgment under appeal’, EU:T:2022:178), by which the General Court dismissed its action seeking, principally, annulment of Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 [TFEU], Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case AT.39258 – Airfreight) (‘the decision at issue’), in so far as it concerns Cargolux; and, in the alternative, annulment of the fine imposed on it by that decision or a reduction in its amount.
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.’
The FEU Treaty
4Article 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
5Article 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.
Background to the dispute and the decision at issue
6The background to the dispute and the decision at issue, as set out in paragraphs 1 to 60 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.
7Cargolux is an air transport company active in the market for airfreight services.
8In 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
9On 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’).
10On 14 and 15 February 2006, the Commission carried out unannounced inspections at the premises of a number of carriers.
11Following those inspections, a number of carriers, including Cargolux, submitted an application for immunity under the notice on immunity from fines and reduction of fines in cartel cases, referred to in paragraph 9 of the present judgment.
12On 19 December 2007, the Commission addressed a statement of objections to 27 carriers, including Cargolux, all of which subsequently submitted written observations. An oral hearing was held from 30 June to 4 July 2008.
The initial decision
13On 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 Cargolux.
14The 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
15By judgment of 16 December 2015, Cargolux Airlines v Commission (T‑39/11, EU:T:2015:991), the General Court annulled the initial decision in so far as it concerned Cargolux. 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.
16The General Court found that that decision was vitiated by a defective statement of reasons.
The decision at issue
17On 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.
18On 17 March 2017, the Commission adopted the decision at issue, which was addressed to 19 carriers, including Cargolux.
19That 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.
20In 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.
21In 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.
22In 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.
23First, 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, 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’.
24Second, 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’).
25In 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.
26Furthermore, 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.
27Subsection 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’.
28Second, 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 Cargolux was involved in those three elements.
29Third, 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.
30Fourth, 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.
31Fifth, 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.
32Section 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.
33In recital 1169 of that decision, the Commission found that the duration of the infringement to be taken into account in so far as concerned Cargolux ran from 22 January 2001 until 14 February 2006.
34In 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, since part of the services relating to inbound routes and outbound routes from the EEA to third countries, with the exception of EU-Switzerland routes, was 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, in accordance with point 29 of those guidelines, it granted the incriminated carriers an additional 15% reduction in the basic amounts, on the ground that certain regulatory regimes had encouraged the cartel at issue.
35Articles 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:…(f) [Cargolux] from 22 January 2001 until 14 February 2006;…(2) The following undertakings infringed Article 101 [TFEU] as regards [EU-third country routes], for the following periods:…(f) [Cargolux] 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:…(f) [Cargolux] 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:…(f) [Cargolux] 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:…(f) [Cargolux]: EUR 79900000;…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
36By application lodged at the Registry of the General Court on 31 May 2017, Cargolux brought an action for annulment, in whole or in part, of Article 1 of the decision at issue, in so far as it concerns it, and for annulment of the fine imposed on it in Article 3(f) of that decision or, in the alternative, for a reduction in its amount, and for the ‘[making of] the necessary consequential orders in respect of Article 4 [of that decision]’, in so far as it concerns Cargolux.
37In support of that action, Cargolux raised seven pleas for annulment together with nine arguments seeking annulment of the fine imposed on it or a reduction in its amount.
38Amongst those pleas, the third plea alleged an error of law and a manifest error of assessment in the application of Article 101 TFEU in relation to the finding of the existence of an infringement by object. The fourth plea alleged a manifest error of assessment and breach of an essential procedural requirement, of the duty to state reasons and of the rights of the defence in connection with the definition of the scope and parameters of the single and continuous infringement. By its fifth plea, Cargolux alleged errors of fact and manifest errors of assessment in the finding of an infringement of the competition rules and of its participation therein. By its sixth plea, it alleged a lack of jurisdiction on the Commission’s part to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services. Its seventh plea alleged errors in the calculation of the amount of the fine.
39Furthermore, the General Court raised a plea of its own motion alleging lack of jurisdiction on the part of the Commission in the light of the EC-Switzerland Air Transport Agreement to find and penalise an infringement of Article 53 of the EEA Agreement on routes between airports in the EEA Contracting Parties not being Member States and airports in Switzerland.
40The arguments in support of Cargolux’s application for a reduction in the amount of the fine were identical, in respect of eight of those arguments, to the arguments raised in support of its seventh plea for annulment. Cargolux added, in response to the General Court’s measures of organisation of procedure relating to the plea which the latter had raised of its own motion, a ninth argument, relating to sales on routes between airports in the EEA Contracting Parties not being Member States and airports in Switzerland.
41By way of the judgment under appeal, the General Court rejected all of those pleas, including the plea it had raised of its own motion. In particular, it found, in essence, in paragraph 401 of that judgment, that the scope of the contacts involving Cargolux which are referred to in recitals 250 and 350 of the decision at issue had to be qualified and, in paragraph 445 of that judgment, that the Commission had erred in finding, in recitals 750 and 880 of that decision, that Cargolux had participated in the meeting referred to in recital 387 thereof. It nevertheless found, in essence, in paragraph 447 of the judgment under appeal, that that did not justify granting Cargolux an additional reduction of the fine on account of mitigating circumstances. On conclusion of the exercise of its unlimited jurisdiction, the General Court, in paragraph 647 of the judgment under appeal, set the final amount of the fine to be imposed on Cargolux at EUR 79900000. Since that amount was identical to the amount of the fine imposed on Cargolux in the decision at issue, the General Court also rejected that undertaking’s claim seeking alteration of the amount of the fine.
Forms of order sought by the parties to the appeal
42By its appeal, Cargolux submits that the Court should:– set aside the judgment under appeal;– annul Article 1(1) to (4) of the decision at issue, in so far as it relates to Cargolux;– in the alternative, annul those provisions in part in so far as they relate to Cargolux and to the conduct related to the refusal to pay commission and/or the security surcharge, and/or annul Article 1(2) and (3) of that decision, in so far as it relates to Cargolux and to inbound routes and, in each case, reduce accordingly the fine imposed on Cargolux in Article 3(f) of that decision;– annul the fine imposed on Cargolux in Article 3(f) of the decision at issue or, in the alternative, substantially reduce it;– in the alternative, if the Court finds that the state of the proceedings does not permit final judgment to be given, refer the case back to the General Court;– order the Commission to pay the costs of the proceedings before the Court of Justice and the General Court; and– make any other order as may be appropriate in the circumstances of the case.
43The Commission contends that the Court should:– dismiss the appeal and order Cargolux to pay the costs;– in the alternative, if the Court were to uphold the appeal, refer the cases back to the General Court and reserve the costs.
The appeal
44In support of its appeal, Cargolux raises four grounds of appeal. By its first ground of appeal, Cargolux claims that the General Court erred in law by upholding the Commission’s jurisdiction to find and sanction an infringement of Article 101 TFEU and Article 53 of the EEA Agreement in respect of inbound routes. By its second ground of appeal, Cargolux submits that the General Court erred in law and infringed its rights of defence in upholding the Commission’s finding that the conduct in which Cargolux had participated constituted an infringement by object. Its third ground of appeal alleges that the General Court erred in law in setting out and applying the legal test for establishing the existence of a single and continuous infringement and in upholding the decision at issue in so far as it sanctions Cargolux for such an infringement. By its fourth ground of appeal, submitted in the alternative, Cargolux alleges that the General Court erred in law by finding it liable for all aspects of the single and continuous infringement, when its participation in that infringement was limited.
The first ground of appeal, relating to the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services
45Cargolux’s first ground of appeal consists of six parts. By the first part, it alleges that the General Court erred in law by applying the incorrect legal test to uphold the Commission’s jurisdiction to sanction conduct on inbound routes. By the second part, it submits that, in any event, the General Court erred in law in finding that the Commission had discharged its obligation to establish that the test based on the qualified effects of anticompetitive practices in the European Union (‘the qualified effects test’) was satisfied in the present case. By the third part, it submits that the General Court erred in law in finding that the Commission was able to assert jurisdiction over inbound freight services on the basis of the single and continuous infringement as a whole. By the fourth part, it submits that the General Court unlawfully reversed the burden of proof when it upheld the Commission’s jurisdiction. By the fifth part, it submits that the General Court unlawfully substituted its own reasoning relating to the Commission’s jurisdiction for that set out in the decision at issue. The sixth part alleges that the General Court erred in law and infringed the rights of the defence when it assessed the legality of the decision at issue on the basis of arguments and an analysis produced for the first time during the proceedings before it.
46It is appropriate to examine in turn the first, second, fourth to sixth and third parts.
The first part, relating to the test for asserting the Commission’s jurisdiction in respect of inbound freight services
–Arguments of the parties
47Referring to paragraphs 103 and 115 of the judgment under appeal, Cargolux submits that public international law is not the appropriate basis for asserting the Commission’s jurisdiction to catch conduct adopted outside the European Union or the EEA. It is the standard set out by EU law, in accordance with the wording of Article 101(1) TFEU, which must be complied with. The Commission is therefore required to prove 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’.
48That is the case where the test based on the place in which anticompetitive practices were implemented (‘the implementation test’), as defined 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, paragraph 12), is satisfied. To that end, it is necessary for sales to be made directly to purchasers in the European Union or for price increases within the internal market to be applied, and for there to be orders from customers established in the EEA. If those conditions are not met, it is necessary to prove that the conduct in question has the effect of restricting competition in the internal market in accordance with paragraphs 22 and 28 of the judgment of 28 April 1998, Javico (C‑306/96, EU:C:1998:173). The establishment of that proof goes beyond merely satisfying the qualified effects test under public international law.
49The judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), does not relieve the Commission of its obligation to comply with the requirements of Article 101 TFEU. The Court of Justice did not state in that judgment that the qualified effects test is sufficient to establish the Commission’s jurisdiction under EU law. That test serves only to determine whether the application of Article 101 TFEU is compatible with public international law.
50The conclusion in paragraph 183 of the judgment under appeal is therefore incorrect, since recitals 1042 to 1046 of the decision at issue do not satisfy the applicable legal test for establishing the Commission’s jurisdiction, on the basis of Article 101(1) TFEU, over conduct that took place outside the European Union. As stated in paragraph 131 of that judgment, almost all sales of inbound freight services were made outside the EEA. Proof that the conduct at issue had as its object the restriction of competition in the internal market has therefore not been adduced.
51Paragraph 121 of the judgment under appeal is also incorrect in that the General Court absolves the Commission from undertaking any analysis of anticompetitive effects in the internal market, in breach of the requirements arising from paragraph 15 of the judgment of 28 April 1998, Javico (C‑306/96, EU:C:1998:173), from which it is apparent, according to Cargolux, that anticompetitive conduct may be penalised under Article 101 TFEU only if it is capable of affecting trade between Member States, including where an infringement by object is involved. Paragraphs 20 and 21 of that judgment establish moreover that agreements intended to apply only in a territory outside the European Union do not have as their object the restriction of competition within the European Union, even if they were characterised as an infringement by object if they were applied within the European Union.
52The Commission disputes that line of argument.
–Findings of the Court
53In the first place, it should be recalled that, in 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 to find and penalise, under Article 102 TFEU, conduct adopted outside the European Union on the basis of rules of public international law could be established either in the light of the implementation test or in the light of the qualified effects test, held, in paragraph 46 of that judgment, that the qualified effects test may, on its own, establish a basis for the Commission’s jurisdiction.
54The Court reached that conclusion after recalling, in paragraphs 42 and 45 of that judgment, (i) 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 (ii) 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.
56Cargolux cannot therefore validly claim that the Commission’s jurisdiction under EU law to prevent conduct adopted outside the European Union or the EEA can be established only if it is proved that the agreements or concerted practices at issue have as their object or effect the prevention, restriction or distortion of competition within the internal market, which can be established only on the basis of the implementation test.
57It is also to no avail that Cargolux relies, in that regard, on paragraphs 20 to 22 and 28 of the judgment of 28 April 1998, Javico (C‑306/96, EU:C:1998:173). Those paragraphs relate not to the Commission’s jurisdiction to apply Article 101 or 102 TFEU to conduct adopted outside the European Union or the EEA, but to the substantive criterion governing the application of those provisions to specific conduct. They thus relate to the separate question of the anticompetitive nature of the agreements at issue in that case, and more specifically to the question whether the conduct considered in that case had the object or effect of appreciably restricting competition within the common market and was capable of affecting trade between Member States, and to the factors to be taken into account in making that assessment.
58The General Court therefore did not err in law in holding, in essence, in paragraphs 115 and 183 of the judgment under appeal, that the Commission was entitled to rely on the qualified effects test in order to establish its jurisdiction over the cartel at issue in so far as it related to inbound freight services.
59In the second place, in so far as, by the criticism levelled at paragraph 121 of the judgment under appeal, Cargolux claims, on the one hand, that the General Court wrongly absolved the Commission from undertaking an analysis of anticompetitive effects in the internal market, that criticism must, in so far as it is based on paragraph 15 of the judgment of 28 April 1998, Javico (C‑306/96, EU:C:1998:173), be rejected on a ground similar to that already set out in paragraph 57 of the present judgment. In paragraph 15 of that judgment, the Court of Justice merely recalled, in essence, that anticompetitive conduct may not be struck down under Article 101(1) TFEU unless it is capable of affecting trade between Member States.
60On the other hand, it is true that the General Court stated, in paragraph 121 of the judgment under appeal, that where conduct has been found by the Commission, as in the case at hand, to reveal a degree of harmfulness to competition in the internal market or within the EEA such that it could be classified as a restriction of competition ‘by object’ within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement, the application of the qualified effects test cannot require the demonstration of the actual effects which classification of conduct as a restriction of competition ‘by effect’ within the meaning of those provisions presupposes.
61However, it is clear from an overall reading of paragraphs 117 to 135 of the judgment under appeal that that paragraph 121 is part of the General Court’s analysis by which it merely concerned itself with rejecting the line of argument, summarised in paragraphs 105 to 108 of that judgment, which Cargolux had submitted. Thus, in paragraphs 117 to 135, the General Court set out the reasons why Cargolux could not reasonably argue that, by using the concept of restriction of competition ‘by object’, the Commission failed to carry out any analysis of the effects of the conduct at issue. In particular, the General Court rejected Cargolux’s arguments that the Commission, by stating, in recital 917 of the decision at issue, that it was not necessary to show actual anticompetitive effects, on account of the anticompetitive object of the conduct complained of, failed to assess whether that conduct had produced the qualified effects required to establish its jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to inbound freight services.
62By essentially replying that the qualified effects test, which serves as the basis for 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.
63Moreover, 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 136 to 171 of the judgment under appeal concerning the coordination in relation to inbound freight services taken in isolation, and in paragraphs 172 to 182 concerning the single and continuous infringement taken as a whole.
64In those circumstances, Cargolux is wrong to claim that the General Court erred in law by absolving the Commission from undertaking any analysis of the effects of the conduct at issue for the purposes of applying the qualified effects test.
65The first part of the first ground of appeal must therefore be rejected as unfounded.
The second part, relating to the qualified effects test
–Arguments of the parties
66Cargolux submits that the General Court, in any event, erred in law in finding that the Commission had discharged its obligation to establish that the qualified effects test was satisfied in the present case.
67First, the General Court relied on the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), in order to assert that the conduct in question had sufficiently probable effects in the EEA, failing to recognise the distinct circumstances of the case which gave rise to that judgment, which are far removed from the circumstances of the present case. The General Court was therefore wrong to conclude that the Commission had validly asserted jurisdiction on the basis of a number of factors, set out in paragraphs 131 to 134 of the judgment under appeal, which are tenuous and very far removed from the facts examined in that other case.
68Second, although, in paragraph 130 of the judgment under appeal, the General Court recognised that the qualified effects test must be applied in the light of the economic and legal context of the conduct at issue, it did not analyse that context. Its conclusion, based on paragraphs 142, 148 and 150 of the judgment under appeal, that the condition relating to foreseeability was satisfied is therefore wrong in law.
69Third, the case-law on which the General Court relies in paragraph 152 of that judgment in order to confirm the substantiality of the effect which it analysed concerns factual circumstances which are not comparable to Cargolux’s situation. The first judgment cited concerned conduct which lasted for 10 years and involved participants representing virtually the entire market, while the second judgment cited concerned conduct which lasted 9 and a half years and involved price-fixing and coordinated output limitation. By contrast, Cargolux’s conduct lasted only 21 months for EU-third country routes and 8 months for non-EU EEA-third country routes and the parties involved accounted for only 34% of the market.
70Fourth, the General Court was not justified in finding that the conduct concerning inbound routes satisfied the requirement of immediacy. In that regard, the General Court erred in finding, in paragraph 170 of that judgment, that the judgment of 27 February 2014, InnoLux v Commission (T‑91/11, EU:T:2014:92), was irrelevant. No evidence that inbound freight services sold to freight forwarders were intended for ultimate sale in the EEA is cited in the judgment under appeal, paragraph 132 of that judgment merely stating that it was ‘at the very least likely’ that shippers were established in the EEA. Consequently, Cargolux’s sale of inbound freight services to freight forwarders outside the EEA is akin to the sale of cartelised products to third parties outside the EEA, as in the case that gave rise to that judgment in InnoLux v Commission. The link between the conduct in question and the alleged effect in the EEA is therefore insufficient to establish that that requirement of immediacy is satisfied, unless the Commission is allowed to assert its jurisdiction over any infringing conduct occurring outside the EEA.
71The Commission contends that this part of the ground of appeal is in part unfounded and in part inadmissible.
–Findings of the Court
72In the first place, it should be noted that paragraphs 131 to 134 of the judgment under appeal are part of the General Court’s examination, set out in paragraphs 117 to 135 of that judgment, relating to the assessment of the relevance of the first of the three grounds on which the Commission relied in recitals 1045 and 1046 of the decision at issue as the basis for its finding that the qualified effects test had been satisfied in the case at hand. That ground consisted in ‘the increased costs of air transport to the EEA, and consequently higher prices of imported goods, [which were] by their very nature liable to have effects on consumers in the EEA’ (‘the effect on the prices of imported goods’), a ground to which the General Court referred as ‘the effect at issue’, and which Cargolux argued, as is apparent from paragraph 116 of the judgment under appeal, 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.
73It is true that, in that context, the General Court stated, inter alia, in paragraph 119 of the judgment under appeal, that the application of the qualified effects test does not require it to be established that the conduct at issue has actually produced effects in the internal market or within the EEA. On the contrary, the General Court pointed out, referring to paragraph 51 of the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), that it is sufficient to take account of the probable effects of that conduct on competition.
74However, first, the General Court thus merely recalled the case-law of the Court of Justice relating to the qualified effects test, without erring in law. In accordance with that case-law, the qualified effects test thus allows the application of EU or EEA competition law to be justified under public international law when it is foreseeable that the conduct in question will have an immediate and substantial effect in the European Union or in the EEA. In that regard, it is sufficient to take account of the probable effects of conduct on competition in order for the requirement of foreseeability to be satisfied. Furthermore, it is sufficient that the conduct in question be ‘liable’ to have an immediate effect in the European Union or in the EEA in order for the requirement of immediacy to be satisfied (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14, EU:C:2017:632, paragraphs 49, 51 and 52).
75Contrary to what Cargolux suggests, by its general wording, the guidance set out in paragraphs 49, 51 and 52 of the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), recalled in the preceding paragraph of the present judgment, is intended to apply not only to the specific circumstances of the case which gave rise to the judgment in Intel v Commission, but also whenever it is necessary to assess whether the Commission has jurisdiction to apply, inter alia, Article 101 TFEU and Article 53 of the EEA Agreement to conduct outside the EEA.
76Second, it is true that, in paragraph 131 of the judgment under appeal, the General Court noted that it was 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 it had adopted that the carriers sell their freight services exclusively or almost exclusively to freight forwarders. It added that, as regards inbound freight services, almost all of those sales take place at the point of origin of the routes in question, outside the EEA, where those freight forwarders are established, noting, in that regard, that it was apparent from the application before the General Court that, between 1 May 2004 and 14 February 2006, Cargolux had achieved only a negligible proportion of its sales of inbound freight services from customers based in the EEA.
77It observed, however, in paragraph 132 of that judgment, that freight forwarders purchased those services as intermediaries, in order to consolidate them into a package of services, the purpose of which is, by definition, to organise the integrated transport of goods to the territory of the EEA on behalf of shippers, which could, as was apparent from recital 70 of the decision at issue, in particular be the purchasers or owners of the goods transported and that it was therefore at the very least likely that they were established in the EEA.
78The General Court inferred from this, in paragraph 133 of that judgment, 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 was in particular on the 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 concerned inbound routes, was liable to be felt. In that paragraph, it noted that, consequently, it was in the internal market or within the EEA that the effect on the prices of imported goods was liable to materialise.
79It concluded, in paragraph 134 of that judgment, that the additional cost which shippers might have had to pay and the higher prices of goods imported into the EEA which may have resulted therefrom are among the effects produced by the conduct at issue on which the Commission was entitled to rely for the purposes of applying the qualified effects test.
80It then stated, in paragraph 135 of the judgment under appeal, that the question was therefore whether that effect had the required foreseeability, substantiality and immediacy, which it examined in paragraphs 136 to 171 of that judgment.
81It follows from the foregoing that it is not in the light of the circumstances of the case which gave rise to the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), but rather in the light of the general criteria laid down in that judgment and of the specific circumstances of the present case that the General Court held that the effect on the prices of imported goods was an effect of the cartel at issue which the Commission was entitled to take into account for the purposes of applying the qualified effects test.
82The line of argument set out in paragraph 67 of the present judgment must, accordingly, be rejected as unfounded.
83In the second place, as regards the condition relating to foreseeability, it should be noted that, in paragraphs 142, 148 and 150 of the judgment under appeal, which form part of the General Court’s analysis relating to the foreseeability of the effect on the prices of imported goods, the General Court stated, first of all, that the members of the cartel at issue could reasonably have foreseen that the effect of the single and continuous infringement, in so far as it concerned inbound freight services, would be an increase in the price of freight services on inbound routes. Next, it considered, in the light of what it had found in paragraphs 143 to 147 of that judgment, that it was foreseeable for the incriminated carriers that the single and continuous infringement would, in so far as it related to inbound routes, have the effect of increasing the price of imported goods. Lastly, pointing out that the effect on the prices of imported goods was part of the normal course of events and economic rationale, it added that it was not in any way necessary for Cargolux to have precise knowledge of the functioning of the downstream markets in order to be able to predict that effect.
84In paragraph 144 of the judgment under appeal, the General Court found that it was apparent from recitals 14 and 70 of the decision at issue that the price of freight services constituted an input for freight forwarders, and that it was a variable cost the increase in which, in principle, has the effect of increasing the marginal cost in the light of which freight forwarders set their own prices. It added, in paragraph 145 of that judgment, that Cargolux 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 inferred from this, in paragraph 146 of that judgment, that, in those circumstances, 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. It also noted, in paragraph 147 of that judgment, that it was apparent from recitals 70 and 1031 of the decision at issue that 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 which are a constituent element thereof.
85Furthermore, the General Court, in paragraphs 138 to 142 of the judgment under appeal, set out the reasons why, in the light of the factors set out in the decision at issue and relating, in particular, to the nature of the conduct in question and the way in which the price of freight services is composed, the members of the cartel at issue could reasonably have foreseen that the effect of the single and continuous infringement, in so far as it concerned inbound freight services, would be an increase in the price of freight services on inbound routes, so that it remained to be assessed, as it stated in paragraph 143 of that judgment, whether it was foreseeable for the incriminated carriers that freight forwarders would pass on such additional costs to their own customers, namely shippers.
86It must therefore be held, in the light of those factors, that, by referring in particular to the nature of the conduct in question, the functioning of the market, the way in which the relevant prices are composed and the relations between the various market participants, the General Court, in any event, in the context of its analysis concluding that the effect on the prices of imported goods was foreseeable, took account of the economic and legal context in which the conduct in question took place.
87The line of argument set out in paragraph 68 of the present judgment must, accordingly, be rejected as unfounded.
88In the third place, as regards the condition relating to ‘substantiality’, it should be noted that the General Court’s assessment of whether the Commission had established to the requisite standard that the effect on the prices of imported goods was substantial, as required by the case-law recalled in paragraph 74 of the present judgment, also referred to by the General Court in paragraph 115 of the judgment under appeal, is set out, principally, in paragraphs 152 to 157 of that judgment, paragraphs 158 to 161 of that judgment containing, moreover, grounds which the General Court described as being included for the sake of completeness.
89In that regard, in paragraph 152 of the judgment under appeal, the General Court rightly stated that the assessment of whether the effects produced by the conduct at issue are substantial must be carried out in the light of all the relevant circumstances of the case, including, inter alia, the duration, nature and scope of the infringement. It added that other circumstances, such as the size of the undertakings which participated in that conduct, may also be relevant.
90There is nothing in those paragraphs to indicate that those circumstances are relevant only for conduct of a certain duration or involving a certain proportion of market participants. The line of argument set out in paragraph 69 of the present judgment must, accordingly, be rejected as unfounded.
91In the fourth place, as regards the requirement of immediacy, it must be noted, first, that, in paragraph 170 of the judgment under appeal, the General Court stated that Cargolux was not justified in relying on paragraph 87 of the judgment of 27 February 2014, InnoLux v Commission (T‑91/11, EU:T:2014:92), on the ground that the facts of the case that gave rise to that judgment differed fundamentally from those of the present case, which it then set out in paragraph 170. However, as paragraph 169 of the judgment under appeal indicates, in paragraph 170, the General Court merely rejected Cargolux’s argument seeking to call into question the conclusion reached by the General Court, in paragraph 168 of that judgment, that the effect on the prices of imported goods had the required immediacy, that conclusion already being sufficiently based on paragraphs 163 to 167 of the judgment under appeal, which are not disputed by Cargolux. That paragraph 170 must therefore be regarded as being included for the sake of completeness.
92Consequently, the arguments relating to paragraph 170 of the judgment under appeal must be rejected as ineffective, in accordance with the settled case-law of the Court of Justice, 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).
93Second, in so far as, by its line of argument set out in paragraph 70 of the present judgment, Cargolux disputes generally the General Court’s assessment of whether the effect on the prices of imported goods was immediate in the light, in particular, of the factors which it set out in paragraph 132 of the judgment under appeal, it must be noted that, in paragraph 132, the General Court stated that, although freight forwarders buy inbound freight services, it is in order to consolidate them in a package of services the very purpose of which is to organise the integrated transport of goods to the territory of the EEA on behalf of shippers.
94It must therefore be stated that, by that line of argument, Cargolux seeks to call into question the General Court’s assessment of the facts in paragraph 132, without, however, claiming that they were distorted.
95However, 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.
96The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced before 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 (judgment 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).
97That line of argument must consequently be rejected as inadmissible.
98In the light of all of the foregoing, the second part of the first ground of appeal must be rejected as in part inadmissible, in part unfounded and in part ineffective.
The fourth part, relating to an unlawful reversal of the burden of proof
–Arguments of the parties
99Cargolux claims that the General Court, in paragraphs 145 and 167 of the judgment under appeal, unlawfully reversed the burden of proof. First, in its analysis of the condition relating to whether the effect on the prices of imported goods was foreseeable, the General Court criticised Cargolux for failing to adduce evidence demonstrating that passing on the additional costs downstream was unlikely. Moreover, in the context of its analysis relating to the requirement that that effect be immediate, the General Court criticised Cargolux for not having established or even alleged that the foreseeable passing on of the additional costs to shippers in the EEA was wrongful or extraneous to the normal functioning of the market. However, it is not for Cargolux to prove the Commission’s jurisdiction.
100The Commission replies that this part of the ground of appeal must be rejected.
–Findings of the Court
101It should be borne in mind that, according to settled case-law, it is for the Commission to adduce evidence capable of demonstrating to the requisite legal standard the existence of 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).
102That 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.
103In the present case, as regards, first, the complaint relating to paragraph 145 of the judgment under appeal, it should be noted that, in that paragraph, the General Court stated that Cargolux did 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 had previously found, first of all, in paragraphs 138 to 142 of that judgment, that it was apparent from various factors in the decision at issue that the members of the cartel at issue could reasonably have foreseen that the effect of the single and continuous infringement, in so far as it concerned inbound freight services, would be an increase in the price of freight services on inbound routes.
104It then noted, in paragraph 143 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 regard, it had found, in paragraph 144 of that judgment, 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 freight forwarders set their own prices.
105It follows that, given that the General Court had found beforehand that the Commission had established the circumstances which the General Court had set out in paragraphs 138 to 144 of the judgment under appeal to the requisite standard, it cannot be held that, by its finding in paragraph 145 of the judgment under appeal, the General Court unlawfully reversed the burden of proof. The complaint directed against paragraph 145 must therefore be rejected as unfounded.
106As regards, second, the complaint directed at paragraph 167 of the judgment under appeal, it should be noted that, in that paragraph, the General Court found that Cargolux did not establish, or even allege, that the foreseeable passing on of the additional costs to shippers located in the EEA is wrongful or extraneous to the normal functioning of the market.
107The General Court made that finding after noting, in paragraphs 163 to 166 of that judgment, in particular in paragraph 165 thereof, that, in the present case, the intervention of freight forwarders in respect of which it was foreseeable that, with complete independence, they would pass on to shippers the additional costs that they had had to pay was indeed capable of having contributed to the occurrence of the effect on the prices of imported goods, but that that intervention was not in itself such as to break the causal chain between the conduct at issue and that effect and thus deprive it of its immediacy.
108In those circumstances, in the light of those factors, which are not disputed in the appeal, and having regard to what has been recalled in paragraph 101 of the present judgment, it cannot be held that, in paragraph 167, the General Court unlawfully reversed the burden of proof. The complaint directed against paragraph 167 is therefore also unfounded.
109The fourth part of the first ground of appeal must therefore be rejected as unfounded.
The fifth part of the first ground of appeal, relating to a substitution of grounds
–Arguments of the parties
110Cargolux submits that the General Court erred in law by substituting its own reasoning for that of the Commission in its review of the Commission’s application of the qualified effects test. It constructed its own reasoning on the basis of factors not taken into account by the Commission and considerations which were not among those on which the Commission relied in the decision at issue. In particular, the constituent elements of that test were not examined in that decision. Thus, only two recitals of that decision relate to that test, whereas the General Court devoted 69 paragraphs of the judgment under appeal to it. Cargolux refers, in particular, to paragraph 165 of the judgment under appeal, which concerns the passing on of the additional costs to shippers in the EEA, whereas recital 1045 of the decision at issue concerns only consumers in the EEA. Similarly, paragraphs 155 to 161 of that judgment refer to parts of that decision which do not concern the application of that test. It is irrelevant that the General Court responded to the arguments put forward by Cargolux, since it is demonstrated that, in the decision at issue, there was an absence of analysis of the constituent elements of the qualified effects test.
111The Commission contends that this part of the ground of appeal is unfounded.
–Findings of the Court
112It 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).
113The 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).
114However, 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).
115In the present case, it is true that the General Court did not base the finding made in paragraph 165 of the judgment under appeal on a recital of the decision at issue. However, as is apparent from an overall reading of the grounds of that judgment which are devoted to the assessment of the qualified effects test, and in particular paragraphs 111 and 127 of that judgment, 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 131, 132, 138 to 141, 144, 147, 155 to 157, 160 and 161 of that judgment, enabled the General Court to ascertain that the Commission had indeed established the existence of such effects. It is apparent, moreover, from paragraphs 116 to 171 of the judgment under appeal that, in those paragraphs, the General Court confined itself to responding to the arguments submitted to it by Cargolux and to explaining the statement of reasons for the decision at issue, in particular by drawing certain conclusions from the factors contained in that decision.
116The fact that the factors noted in those paragraphs, and in particular in paragraphs 155 to 161 of the judgment under appeal, were not expressly relied upon by the Commission in the part of that decision devoted to establishing its territorial jurisdiction cannot establish the existence of an unlawful substitution of grounds. The case-law referred to in paragraph 113 of the present judgment requires only that the General Court’s examination be related to the assessments set out in the act under its review. Furthermore, as has already been found in the preceding paragraph, the first sentence of recital 1045 of the decision at issue contained the factors that enabled the General Court to ascertain whether the Commission had indeed established its territorial jurisdiction in the light of the qualified effects.
117Accordingly, the alleged substitution of grounds has not been established. The fifth part of the first ground of appeal must therefore be rejected as unfounded.
The sixth part, relating to an error of law and infringement of the rights of the defence
–Arguments of the parties
118Cargolux submits that the General Court infringed its rights of defence by assessing the legality of the decision at issue on the basis of arguments and an analysis produced for the first time before it. In that regard, the substitution of grounds which the General Court carried out in order to assess the qualified effects test deprived Cargolux of the right to take a position on the application of that test during the administrative procedure, in breach of the case-law according to which the undertaking concerned must be afforded the opportunity to make its views known on the truth and relevance of the facts and circumstances alleged and the documents used by the Commission to support its claims. While it is true that the issue addressed in the judgment under appeal could be identified by Cargolux during the administrative procedure before the Commission, the fact remains that the General Court relied on a new analysis and new arguments relating to the qualified effects test, which were not in the Commission’s administrative file.
119The Commission contends that this part of the ground of appeal is unfounded.
–Findings of the Court
120The present part of the ground of appeal is based on the premiss that, when the General Court assessed whether the Commission had established to the requisite standard that the qualified effects test was satisfied in the present case, it unlawfully substituted its own reasoning for that set out in the decision at issue. However, it is apparent from the analysis of the fifth part of the present ground of appeal that that premiss is unfounded.
121The sixth part of the first ground of appeal must therefore be rejected as unfounded.
The third part, relating to the establishment of the Commission’s international jurisdiction on the basis of the single and continuous infringement taken as a whole
–Arguments of the parties
122Cargolux claims that the General Court erred in law in finding, in paragraphs 174, 176 and 177 of the judgment under appeal, that the Commission could validly assert its jurisdiction to apply Article 101 TFEU to inbound routes on the basis of the single and continuous nature of the infringement taken as a whole.
123First, the General Court conflated the concept of a ‘single and continuous infringement’, on the one hand, with the establishment of the Commission’s jurisdiction, on the other. That concept, which is intended to relieve the Commission’s evidentiary burden, cannot extend the Commission’s jurisdiction to apply Article 101 TFEU, unless it is recognised as having unlimited jurisdiction over any conduct occurring outside the EEA which allegedly forms part of a single and continuous infringement, only certain elements of which produce effects in the EEA.
124Second, the concept of a ‘single and continuous infringement’ presupposes that each of its substantive aspects constitutes an infringement. Accordingly, the Commission cannot rely on that concept to extend its jurisdiction over conduct in respect of inbound routes which did not have the object or effect of restricting competition within the EEA.
125Third, the General Court ignored the fact that the case which gave rise to the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), concerned factual circumstances unrelated to those of the present case.
126Fourth, paragraph 177 of the judgment under appeal is incorrect in that the General Court held in that paragraph that, in recital 1046 of the decision at issue, the Commission had examined the effects of the infringement taken as a whole, whereas that recital contains no examination to that effect.
127Contrary to what the Commission maintains, Cargolux did indeed challenge recital 1046 of the decision at issue in its action at first instance, as is expressly apparent from the application before the General Court. Recital 1046 was moreover referred to in Section 5.3.2 of that application. Moreover, it was on the basis not of the decision at issue, but of the Commission’s replies to the General Court’s questions, that the General Court established that recital 1046 provided a ground on which the Commission had found that the qualified effects test was satisfied.
128The Commission contends that this part of the ground of appeal is inadmissible, since Cargolux did not challenge recital 1046 of the decision at issue before the General Court. In any event, this part is unfounded.
–Findings of the Court
129It is sufficient to note that, by its sixth plea for annulment before the General Court, Cargolux merely challenged the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to the conduct at issue in so far as it related to inbound freight services. In that connection, the General Court found, in paragraph 171 of the judgment under appeal, that the Commission was entitled to find that the qualified effects test was satisfied as regards coordination in relation to inbound freight services taken in isolation, with the result that the Commission’s jurisdiction to apply Article 101 TFEU and Article 53 of the EEA Agreement to the conduct at issue – in so far as that jurisdiction was disputed – was established. It follows that it was for the sake of completeness that, in paragraphs 172 to 182 of the judgment under appeal, the General Court examined whether the Commission, in order to establish its jurisdiction to apply Article 101 TFEU and Article 53 Agreement 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.
130Furthermore, as is apparent from the analysis of the first, second and fourth to sixth parts of the present ground of appeal, the General Court neither erred in law nor substituted its own grounds for those of the Commission in finding to that effect in paragraph 171 of the judgment under appeal.
131In those circumstances, it must be held that the third part of the present ground of appeal is aimed at grounds of the judgment under appeal included purely for the sake of completeness.
132The third part of the first ground of appeal must therefore, in any event, be rejected as ineffective, in accordance with the case-law cited in paragraph 92 of the present judgment.
133It follows from all of the foregoing that the first ground of appeal must be rejected as in part inadmissible, in part ineffective and in part unfounded.
The second ground of appeal, relating to the characterisation of the conduct at issue as an infringement by object
134Cargolux’s second ground of appeal consists of two parts. By the first part, it claims that the General Court erred in law and infringed its rights of defence by finding that the Commission had sufficiently analysed the economic and legal context of the cartel at issue. By the second part, it submits that the General Court erred in law and infringed its rights of defence by finding that the Commission's strictly necessary assessment of the legal and economic context was sufficient to characterise the conduct at issue as an infringement by object.
The first part, relating to the scope of the Commission’s analysis of the economic and legal context
–Arguments of the parties
135Cargolux claims, first, that the General Court erred in law in finding, in paragraphs 303 to 305 of the judgment under appeal, that the Commission was entitled to confine itself to an examination of the relevant economic and legal context, limited to ‘what was strictly necessary’ given that it considered the conduct in question to be akin to a horizontal price-fixing cartel, and, moreover, that it had satisfied that standard of assessment. Only three pages of the decision at issue are devoted to the characterisation of the cartel at issue as a restriction of competition by object. Moreover, they do not contain any analysis of the economic and legal context of the market, as already stated in the application before the General Court.
136The General Court was also wrong to hold, in paragraph 305 of the judgment under appeal, that that standard of assessment was satisfied in the light solely of the Commission’s explanations that price was the main instrument of competition, the practices in question were intended to remove pricing uncertainty in the market and to ensure that discipline was maintained in the market, and that increased prices were to be applied in full. By contrast, in its previous decision-making practice, the Commission’s analysis is further developed, even though what was involved was also an examination limited to what was strictly necessary.
137Contrary to what the General Court stated in paragraph 309 of the judgment under appeal, Cargolux relies on the Commission’s previous practice in order to demonstrate not that the Commission ought to have satisfied a stricter standard, but that the distinction with the Commission’s approach to conducting the ‘strictly necessary assessment’ is so stark that the Commission has failed entirely even to use its previous practice by way of guidance. The Commission wrongly disregarded multiple relevant factors from its alleged examination of the economic and legal context of the facts of the case, including the nature of airfreight services and the real conditions on the functioning and structure of the airfreight market, its complexity and the power of freight forwarders. In so doing, the General Court also failed to take account of the fact that the concept of a restriction of competition ‘by object’ must be interpreted restrictively.
138Second, by finding the existence of an infringement by object without taking due account of Cargolux’s arguments in its application at first instance when assessing the economic and legal context of the present case, the General Court infringed its rights of defence by depriving it of a thorough adversarial discussion on the economic and legal context surrounding its conduct.
139The Commission replies that this part of the ground of appeal must be rejected.
–Findings of the Court
140In the first place, it must be borne in mind that, in accordance with settled case-law, in order to determine whether an agreement between undertakings or a decision by an association of undertakings reveals a sufficient degree of harm to competition that it may be considered a restriction of competition ‘by object’ within the meaning of Article 101(1) TFEU, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms a part. 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).
141However, the Court has already held that, for collusive agreements or practices constituting particularly serious infringements of the competition rules, the analysis of the economic and legal context of which the 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 100 to 102).
142Those 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), horizontal cartels providing for the fixing of prices falling moreover within the category of agreements expressly prohibited by Article 101(1)(a) TFEU.
143The case-law set out in paragraphs 140 to 142 of the present judgment was recalled, in essence, by the General Court in paragraphs 300 and 302 of the judgment under appeal. In addition, in paragraph 303 of that judgment, the General Court noted that, in recitals 908, 909, 1199 and 1208 of the decision at issue, the Commission had found that the conduct at issue was akin to a horizontal price-fixing cartel, even though it did not relate to the full final price of the services in question. It inferred from this, in paragraph 304 of that judgment, that the Commission was right to maintain in its statement of defence that it was entitled to confine itself to an examination of the relevant economic and legal context, limited to what was strictly necessary in order to characterise the agreements and practices at issue as a restriction of competition ‘by object’.
144It was therefore in accordance with the case-law of the Court of Justice that the General Court found that, since the Commission had considered that the conduct at issue was akin to a horizontal price-fixing cartel, the Commission’s analysis of the economic and legal context of which that conduct formed part could be limited to what was strictly necessary in order to establish the existence of a restriction of competition by object.
145In the second place, as regards specifically Cargolux’s line of argument concerning paragraph 305 of the judgment under appeal, it is true that the General Court held in that paragraph that the Commission’s examination of the relevant economic and legal context in the decision at issue satisfied that requirement. In that regard, it noted that, in recitals 909 and 916 of that decision, the Commission had explained that the 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 to be applied in full and in a coordinated way.
146However, in paragraph 305 of the judgment under appeal, 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 had also to be read in the light of the description of the freight sector and the applicable pricing arrangements, which Cargolux itself acknowledged had been carried out in Section 2.1 of that decision.
147The General Court did not therefore confine itself, in paragraph 305 of the judgment under appeal, solely to the finding referred to by Cargolux in paragraph 136 of the present judgment. It supplemented it by referring to the other relevant factors set out by the Commission in the decision at issue, namely, as stated in paragraph 305 of the judgment under appeal, the basic principles and structure of the cartel at issue and the description of the freight sector and the pricing arrangements applicable in that sector, which are, moreover, in the light of the case-law referred to in paragraph 140 of the present judgment, relevant factors in order to assess whether certain conduct constitutes a restriction of competition by object.
148Cargolux’s criticism of paragraph 305 of the judgment under appeal is therefore based on an incomplete reading of that judgment.
149In that regard, Cargolux cannot derive any useful argument from the Commission’s previous decision-making practice, even if, as it claims in the present appeal, it relies on that practice only in order to demonstrate that the General Court incorrectly failed to censure the Commission for having wrongly disregarded multiple relevant factors from the analysis that it was required to carry out. As the General Court rightly pointed out in paragraph 309 of the judgment under appeal, the Commission’s previous decision-making practice can be only 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).
150In the third place, as regards the line of argument set out in paragraph 138 of the present judgment, it should be noted that it is settled case-law that the ground of appeal alleging that the General Court failed to respond to arguments relied on at first instance amounts essentially to pleading a breach of the obligation to state reasons which derives from Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that statute, and from Article 117 of the Rules of Procedure of the General Court (judgment of 28 September 2023, Changmao Biochemical Engineering v Commission, C‑123/21 P, EU:C:2023:708, paragraph 185 and the case-law cited). In those circumstances, in so far as Cargolux claims that the General Court failed duly to consider the arguments which Cargolux had submitted to it in the assessment of the economic and legal context of the present case, Cargolux is in fact complaining that the General Court, under the cloak of an allegation of infringement of the rights of the defence, infringed its obligation to state reasons.
151It should therefore be recalled that the General Court’s obligation to state reasons under Article 36 of the Statute of the Court of Justice of the European Union, read in conjunction with the first paragraph of Article 53 thereof, requires that court to disclose clearly and unequivocally its reasoning in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (judgments of 11 April 2013, Mindo v Commission, C‑652/11 P, EU:C:2013:229, paragraph 29, and of 26 September 2024, Covestro Deutschland and Germany v Commission, C‑790/21 P and C‑791/21 P, EU:C:2024:792, paragraph 113 and the case-law cited).
152However, that obligation does not require that the General Court provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to understand the grounds of the General Court’s judgment and provides the Court of Justice with sufficient information to exercise its powers of review on appeal (judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 372, and of 26 September 2024, Covestro Deutschland and Germany v Commission, C‑790/21 P and C‑791/21 P, EU:C:2024:792, paragraph 114 and the case-law cited).
153It should also be recalled that the obligation to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 67, and of 4 October 2024, UPL Europe and Indofil Industries (Netherlands) v Commission, C‑262/23 P, EU:C:2024:862, paragraph 134 and the case-law cited).
154In the present case, in paragraphs 293 to 304 of the judgment under appeal, the General Court set out the legal and factual grounds on which it concluded that the Commission had rightly considered that it was entitled to confine itself to an examination of the relevant economic and legal context, limited to what was strictly necessary in order to characterise the agreements and practices at issue as a restriction of competition by object. In addition, in paragraphs 305 to 310 of that judgment, it set out the reasons why it considered that, contrary to what Cargolux argued before it, the Commission’s examination of the relevant economic and legal context in the decision at issue satisfied those requirements. In paragraph 306 of that judgment, it also rejected Cargolux’s argument based on a possible waterbed effect and, in paragraph 309 of that judgment, its argument based on the Commission’s previous decision-making practice. Lastly, in paragraph 310 of that judgment, it rejected Cargolux’s argument disputing the characterisation of the conduct at issue as a ‘hardcore cartel’.
155In the light of the case-law referred to in paragraphs 151 and 152 of the present judgment, it cannot therefore be held that, in so doing, the General Court infringed its obligation to state reasons for the judgment under appeal when it rejected Cargolux’s line of argument seeking to establish that the Commission had erred in characterising the conduct in question as a restriction of competition by object, without having first assessed the relevant economic and legal context.
156The arguments set out in paragraph 138 of the present judgment must therefore, to that extent, be rejected as unfounded.
157Furthermore, in so far as Cargolux thereby seeks to claim that the General Court was wrong to conclude that the Commission was justified in characterising the conduct in question as a restriction of competition by object, that line of argument is incapable of establishing that the General Court infringed its obligation to state reasons, in accordance with the case-law referred to in paragraph 153 of the present judgment, but goes to the merits of the General Court’s analysis. Cargolux disputes the merits of that analysis in the second part of the present ground of appeal, with the result that that line of argument will therefore, to that extent, be examined with that second part.
158In the light of the foregoing considerations, the first part of the second ground of appeal must be rejected as unfounded.
The second part, relating to the analysis which enabled the Commission to characterise the conduct in question as an infringement by object
–Arguments of the parties
159Cargolux submits that the General Court erred in law and infringed its rights of defence by concluding that the Commission’s strictly necessary assessment of the economic and legal context was sufficient to characterise the conduct in question as an infringement by object, without taking into account the elements characterising that context, or even without analysing the evidence establishing those elements.
160First, the conduct in question could not be validly characterised as an infringement by object, since it was not capable of restricting competition in the airfreight market, either directly or indirectly. As explained in the application before the General Court, customers base their purchasing decisions on the overall price to be charged to them. In addition, the increase in surcharges could be competed away by lower headline rates, since the conduct in respect of surcharges did not fix selling prices to customers or reduce or eliminate price competition. Paragraphs 298 and 299 of the judgment under appeal are therefore incorrect, since the General Court wrongly disregarded factors that were key to the legal and economic context of the cases cited in those paragraphs, factors which were taken into account by the Commission in order to establish an infringement by object in those cases, but which are absent from the present case.
161Moreover, the conduct in question was not capable of indirectly restricting competition on the internal market, since prices on the airfreight market are largely not transparent and the parties concerned held, in 2005, only 34% of the total global airfreight market, which, moreover, is highly fragmented. Therefore, even if the coordination of the parties concerned were demonstrated, it is highly implausible that that coordination could materially distort competition.
162Second, the refusal to pay commission could not be validly characterised as an infringement by object either. As also explained in the application before the General Court, the Commission failed to take due account of the proper legal context behind the parties’ communications as regards commission on surcharges. It was a legitimate response to the practices of freight forwarders, which means that the refusal to pay commission cannot be validly characterised as an infringement by object. However, in paragraph 485 of the judgment under appeal, the General Court endorsed recitals 675 to 702 of the decision at issue, without having regard to the litigation with freight forwarders and the threats which formed the backdrop to the discussions between the carriers and freight forwarders.
163Furthermore, in paragraphs 487 to 490 of the judgment under appeal, the General Court misinterpreted Cargolux’s arguments. Cargolux claimed not that it was authorised to pursue its contacts with other freight forwarders as regards the refusal to pay commission on account of the unlawful conduct of freight forwarders, but maintained that the Commission had not applied the correct legal test to establish the existence of an infringement by object or had failed to uphold its rights of defence by not considering its arguments relating to the legal and economic context regarding that refusal.
164The Commission replies that that second part of the ground of appeal is in part inadmissible and in part unfounded.
–Findings of the Court
165In 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.
166Thus, 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).
167By contrast, as has already been pointed out in paragraph 96 of the present judgment, the General Court has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence. 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.
168In the present case, in the first place, it must be stated that the characterisation of the cartel at issue as an infringement by object constitutes a legal characterisation of the facts. However, as is apparent from the line of argument set out in paragraphs 160 and 163 of the present judgment, under the cloak of an error in the legal characterisation of the facts, Cargolux seeks, in essence, to have the Court of Justice carry out a new assessment of the facts and evidence already submitted to the General Court, without alleging that they have been distorted by the General Court. Cargolux sets out what it considers to be the functioning of the market for airfreight services and the limited effect that the conduct in question had on the price of those services. To that extent, that line of argument must therefore be rejected as inadmissible, in accordance with the case-law referred to in paragraph 96 of the present judgment.
169Moreover, in so far as, by that line of argument, Cargolux claims that, in paragraphs 298 and 299 of the judgment under appeal, the General Court erred in law in finding, on the basis of case-law which is essentially irrelevant, that conduct consisting of fixing only part of the price of the product or service concerned may be characterised as a horizontal price-fixing cartel, it is sufficient to note that that line of argument is based on the premiss that an agreement between competitors which consists of fixing only part of the price or service concerned cannot fall within the concept of restriction of competition ‘by object’, within the meaning of Article 101(1) TFEU.
170In that regard, it is true that the Court of Justice has held that the concept of restriction of competition ‘by object’ must be interpreted narrowly and can be applied only to certain types of coordination between undertakings which reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects. That case-law arises from the fact that certain forms of coordination between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of competition (see, to that effect, judgment of 27 June 2024, Commission v KRKA, C‑151/19 P, EU:C:2024:546, paragraph 63 and the case-law cited).
171It is established, in that regard, that certain collusive behaviour, such as that leading to horizontal price-fixing by cartels, may be considered by its nature as likely to have negative effects, in particular on the price, quantity or quality of the goods and services, so that it may be considered redundant, for the purposes of applying Article 101(1) TFEU, to prove that such behaviour has actual effects on the market (judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 115 and the case-law cited). Such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (judgment of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 163).
172The essential legal criterion for ascertaining whether an agreement involves a restriction of competition ‘by object’, within the meaning of Article 101(1) TFEU, is therefore the finding that such an agreement or such a practice is of a nature which displays 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, judgment of 21 December 2023, European Superleague Company, C‑333/21, EU:C:2023:1011, paragraph 162), that finding having to be made in the light of the factors set out in paragraph 140 of the present judgment.
173It follows that the mere fact that the collusive conduct in question concerned only part of the price of the product or service concerned cannot in any way establish that that conduct does not fall within a form of coordination which must be regarded, by its very nature, as being harmful to the functioning of normal competition. On the contrary, such conduct leads, by its very nature, to higher prices, resulting in poor allocation of resources to the detriment, in particular, of consumers.
174The line of argument relating to paragraphs 298 and 299 of the judgment under appeal is therefore based on an incorrect premiss, with the result that it must be rejected as unfounded.
175In the second place, as regards the characterisation of the refusal to pay commission as an infringement by object, it should be noted that, by the line of argument set out in paragraphs 162 and 163 of the present judgment, Cargolux challenges the General Court’s assessment, which appears in paragraphs 483 to 491 of the judgment under appeal, of the anticompetitive nature of the contacts in which it participated concerning the refusal to pay commission.
176However, in paragraph 485 of the judgment under appeal, the General Court merely referred to what was apparent from recitals 675 to 702 of the decision at issue, which Cargolux has not alleged to have been distorted by the General Court. The criticism aimed at paragraph 485 must therefore be rejected as inadmissible, in accordance with the case-law referred to in paragraph 96 of the present judgment.
177As regards paragraphs 487 to 490 of the judgment under appeal, the General Court stated, in essence, in those paragraphs that Cargolux maintained that the refusal to pay commission constituted a legitimate response to the allegedly unlawful conduct of the freight forwarders, but that it followed from the case-law cited in paragraphs 487 and 488 thereof that Cargolux could not rely on the allegedly anticompetitive conduct of the freight forwarders in order to deny that the contacts concerning the refusal to pay commission in which it was involved were anticompetitive.
178The General Court was fully entitled to observe, in paragraph 488 of the judgment under appeal, that it is for public authorities and not private undertakings to ensure compliance with statutory requirements, that observation being consistent with the case-law of the Court of Justice (see, to that effect, judgment of 25 March 2021, Lundbeck v Commission, C‑591/16 P, EU:C:2021:243, paragraph 126 and the case-law cited).
179It follows that the General Court did not err in law in finding, in essence, that that circumstance, which forms part of the context in which the conduct at issue took place, and even if it were established, cannot in any event legitimise an infringement of Article 101 TFEU, let alone a collusive practice which has been found, as in paragraphs 293 to 311 of the judgment under appeal, to be sufficiently harmful to competition to be characterised as a ‘restriction by object’.
180The line of argument set out in paragraph 163 of the present judgment is therefore unfounded.
181The second part of the second ground of appeal must therefore be rejected as in part inadmissible and in part unfounded. It follows that that second ground of appeal must be rejected.
The third ground of appeal, relating to the existence of a single and continuous infringement and Cargolux’s participation in that infringement
182Cargolux’s third ground of appeal consists of two parts. By the first part, it submits that the General Court erred in law by incorrectly setting out the legal test for establishing the existence of a single and continuous infringement. By the second part, it claims that the General Court wrongly upheld the Commission’s finding of its liability for the single and continuous infringement taken as a whole.
The first part, relating to the relevant legal test for establishing the existence of a single and continuous infringement
–Arguments of the parties
183Cargolux submits that the General Court erred in law by incorrectly setting out the legal test for establishing the existence of a single and continuous infringement. In paragraphs 322 to 324 and 335 of the judgment under appeal, the General Court stated that the establishment of such an infringement requires the existence of an overall plan pursuing a common objective, the intentional contribution of a party to that plan and the awareness, proved or presumed, of that party of the offending conduct of the other participants in which it did not participate directly. It then went on, in paragraph 325 of that judgment, to discuss the concept of ‘complementarity’. However, in paragraphs 325 to 327 of that judgment, the General Court held that whilst complementarity may constitute objective evidence of the existence of an overall plan aimed at attaining an anticompetitive objective, it is not necessary, for the purposes of establishing the existence of a single and continuous infringement, to ascertain whether various instances of conduct present links of complementarity. Such an approach is contrary to extensive case-law of the General Court, which was implicitly confirmed by the Court of Justice in the judgment of 18 March 2021, Pometon v Commission (C‑440/19 P, EU:C:2021:214). It is also apparent from the Commission’s decision-making practice that it applies that test, which was, moreover, applied in recital 879 of the decision at issue.
184In that context, Cargolux observes that paragraphs 107 and 108 of the judgment of 16 June 2022, Toshiba Samsung Storage Technology and Toshiba Samsung Storage Technology Korea v Commission (C‑700/19 P, EU:C:2022:484), give an overly inclusive scope to the concept of a ‘single and continuous infringement’ in relation to conduct that is completely unrelated, while significantly reducing the burden on the Commission. Such a pitfall should be avoided.
185The Commission replies that that part is unfounded.
–Findings of the Court
186It is clear from well-established case-law that an infringement of Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Thus, if the various instances of conduct form part of an ‘overall plan’, because their identical object distorts competition within the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, to that effect, judgments of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 41 and the case-law cited, and of 27 June 2024, Servier and Others v Commission, C‑201/19 P, EU:C:2024:552, paragraph 240).
187An undertaking which has participated in such a single and continuous infringement through its own conduct, which fell within the definition of an ‘agreement’ or a ‘concerted practice’ having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may accordingly be held liable also in respect of the conduct of other undertakings in the context of that infringement throughout the period of its participation in the infringement (see, to that effect, judgments of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 42 and the case-law cited, and of 27 June 2024, Servier and Others v Commission, C‑201/19 P, EU:C:2024:552, paragraph 241).
188In that regard, it should be recalled that, for the purpose of characterising various instances of conduct as a single and continuous infringement, it is not necessary to ascertain whether they present a link of complementarity, in the sense that each of them is intended to deal with one or more consequences of the normal pattern of competition, and, through interaction, contribute to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of a global plan having a single objective. On the other hand, the condition relating to a ‘single objective’ does require that it be ascertained whether there are any elements characterising the various instances of conduct forming part of the infringement which are capable of indicating that the instances of conduct in fact implemented by other participating undertakings do not have the same object or the same anticompetitive effect and, consequently, do not form part of an ‘overall plan’ by virtue of their identical object that distorts the normal pattern of competition within the internal market (judgments of 26 January 2017, Villeroy & Boch v Commission, C‑644/13 P, EU:C:2017:59, paragraph 50 and the case-law cited, and of 27 June 2024, Servier and Others v Commission, C‑201/19 P, EU:C:2024:552, paragraph 242).
189The General Court therefore did not err in law in finding, in essence, in paragraphs 325 and 326 of the judgment under appeal, that, in order to characterise various instances of conduct as a single and continuous infringement, it is not necessary to ascertain whether they present a link of complementarity, within the meaning of the case-law referred to in the preceding paragraph, and in inferring from this, in paragraph 327 of that judgment, that, even if it were to be established, the Commission’s alleged failure to establish such a link of complementarity between the agreements and practices at issue was not, in itself, capable of vitiating their classification as a single and continuous infringement.
190It is to no avail that Cargolux relies, first of all, in that regard, on alleged contrary case-law of the General Court, which was allegedly confirmed by the Court of Justice in the judgment of 18 March 2021, Pometon v Commission (C‑440/19 P, EU:C:2021:214). In the case which gave rise to that judgment, the issue before the Court of Justice was not whether or not, in order to establish the existence of a single and continuous infringement, it is necessary to ascertain whether the various instances of conduct at issue present a link of complementarity, within the meaning of the case-law referred to in paragraph 188 of the present judgment. Accordingly, the Court’s silence on that point cannot be interpreted as calling into question the settled case-law referred to in paragraph 188.
191Next, since that case-law was again recently reaffirmed by the Court of Justice, in particular in paragraph 242 of its judgment of 27 June 2024, Servier and Others v Commission (C‑201/19 P, EU:C:2024:552), it is not possible to agree with Cargolux when it suggests, by its line of argument set out in paragraph 183 of the present judgment, that that case-law is neither consistent nor coherent.
192Lastly, nor can it be held that the case-law set out in paragraph 188 of the present judgment, which is also recalled, in essence, in paragraphs 107 and 108 of the judgment of 16 June 2022, Toshiba Samsung Storage Technology and Toshiba Samsung Storage Technology Korea v Commission (C‑700/19 P, EU:C:2022:484), on which Cargolux relies, confers too broad a scope on the concept of a ‘single and continuous infringement’, by making conduct which has no connection whatsoever with other conduct fall within that concept. The fact remains that, in accordance with that settled case-law, that concept presupposes the existence of an ‘overall plan’ of which the various instances of conduct of which it is composed form part and that those instances of conduct pursue an identical object distorting competition in the internal market.
193It follows from the foregoing that the first part of the third ground of appeal must be rejected as unfounded.
The second part, relating to Cargolux’s participation in the single and continuous infringement
–Arguments of the parties
194Cargolux submits that the General Court erred in upholding the Commission’s finding that it can be held liable for the single and continuous infringement taken as a whole.
195First, the General Court erred in law in finding that the Commission had duly proved the complementary and continuous nature of the infringement. Paragraph 509 of the judgment under appeal is incorrect in so far as the General Court held in that paragraph that the fact that the conduct relating to the refusal to pay commission began almost five years after the start of the infringement alleged against Cargolux did not detract from its contribution, through its interaction with the other elements of the infringement, to the attainment of the single objective pursued. According to Cargolux, such an obvious gap in timing permits, on the contrary, the assumption that the conduct relating to the refusal to pay commission was entirely independent of the collusion on surcharges. The evidence to the contrary, referred to in recital 880 of the decision at issue, is irrelevant.
196Moreover, the General Court failed to consider the fact, set out in the application at first instance, that the contacts relating to the fuel surcharge involved global, head-office-level contacts of the undertakings concerned, whilst the contacts relating to the security surcharge primarily involved local-level contacts. Paragraph 466 of the judgment under appeal rejecting those arguments is incorrect, since the fact that the security surcharge contacts relate to communications with the head office in no way detracts from the fact that the multilateral contacts relating to each of those two elements of the infringement were conducted locally. In the light of those factors, paragraph 473 of the judgment under appeal is also incorrect, in so far as the General Court held that Cargolux had failed to call into question that the elements relating to the fuel surcharge and the security surcharge should be included in one and the same infringement pursuing a single objective, even though the Commission is not entitled to use contacts significantly disparate in time in order to find the existence of a single continuous infringement.
197Second, the General Court vitiated the judgment under appeal by contradictory reasoning by stating, in paragraph 326 thereof, that it was not necessary for links of complementarity to be demonstrated in order for the Commission to be able to establish a single and continuous infringement, while then referring to such links in its findings against Cargolux, in paragraphs 497 and 523 of that judgment, in order to justify its finding that the conduct relating to the refusal to pay commission formed part of the single and continuous infringement found in the decision at issue.
198The Commission contends that this part must be rejected.
–Findings of the Court
199In the first place, it should be borne in mind that it follows from the analysis of the first part of the present ground of appeal that the General Court was right to hold, in paragraph 326 of the judgment under appeal, that it is not necessary, in order to characterise various instances of conduct as a single and continuous infringement, to ascertain whether they present links of complementarity in the sense that each of them is intended to deal with one or more consequences of the normal pattern of competition, and whether, through interaction, they contribute to the attainment of the set of anticompetitive effects desired by those responsible.
200Thus, in paragraph 508 of the judgment under appeal, the General Court, referring to paragraph 326 of that judgment, found that the Commission is not required to determine, for the purposes of characterising various instances of conduct as a single and continuous infringement, whether such links of complementarity are present. It inferred from this that, even if it were to be established, a failure to establish such links between the element of the infringement relating to the refusal to pay commission and the elements of that infringement relating to the fuel surcharge and the security surcharge was not therefore capable, in itself, of rendering the decision at issue unlawful.
201It is therefore for the sake of completeness that, in paragraph 509 of that judgment, which is moreover introduced by the phrase ‘in any event’, it examined Cargolux’s argument based on the relatively late start of the element of the infringement relating to the refusal to pay commission as compared to those other elements. It follows that Cargolux’s complaint against that paragraph of the judgment under appeal, set out in paragraph 195 of the present judgment, must be rejected as ineffective, in accordance with the case-law referred to in paragraph 92 of the present judgment.
202In the second place, it should be noted that, in paragraph 466 of the judgment under appeal, the General Court merely stated that the three contacts on which Cargolux relied in order to dispute its participation in the element of the infringement relating to the security surcharge provided support for, rather than undermined, the existence of the multi-level organisation described by the Commission in the decision at issue, in that those contacts all referred to instructions from or communications with the head office of the undertakings concerned, the General Court referring, by way of example, to the emails described in recitals 594 and 595 of the decision at issue.
203As regards paragraph 473 of that judgment, the General Court noted in that paragraph that Cargolux had not effectively contested its participation in the element of the infringement relating to the fuel surcharge, that it had failed to call into question that the elements relating to the fuel surcharge and the security surcharge should be included in one and the same infringement pursuing a single objective, and that it had been established that its participation in the element of the infringement relating to the fuel surcharge had continued until 14 February 2006, since ‘reliable evidence’ had existed at the very least since 10 June 2005 and that participation had been corroborated, before that date, by a significant amount of evidence and indicia of anticompetitive contacts.
204It must therefore be held that those paragraphs 466 and 473 contain only factual assessments. Thus, by the line of argument set out in paragraph 196 of the present judgment, Cargolux is in fact asking the Court to carry out a new assessment of the facts and the evidence that was already carried out by the General Court in its absolute discretion in those paragraphs, without, however, claiming that the General Court distorted those facts and that evidence. That line of argument is therefore inadmissible, in accordance with the case-law referred to in paragraph 96 of the present judgment.
205In the third place, as regards the alleged contradiction in reasoning, it is true that, in paragraph 497 of the judgment under appeal, the General Court stated, inter alia, that, in view of the ‘complementarity’ between, on the one hand, the elements of the infringement relating to the fuel surcharge and the security surcharge and, on the other hand, the element of the infringement relating to the refusal to pay commission, it could reasonably infer from the elements referred to in paragraph 497 of that judgment that the contacts relating to the refusal to pay commission in which Cargolux had participated had a geographical scope that was similar, or close, to those relating to the surcharges. In that regard, the General Court stated that that complementarity had not been effectively contested by Cargolux, referring to paragraphs 329 and 509 of that judgment.
206Similarly, in paragraph 523 of that judgment, the General Court found that, since the surcharges were generally applicable on all routes, on a worldwide basis, it was likely that the same applied to the refusal to pay commission, observing in that regard that, in recital 879 of the decision at issue, the Commission had found that the refusal to pay commission and the other two elements of the infringement were complementary in so far as they had ‘ensured that surcharges were not subject to competition through the negotiation of commission (in fact discounts on the surcharges) with customers’.
207However, it is apparent from paragraph 496 of the judgment under appeal that the ground in paragraph 497 of that judgment was set out by the General Court only for the sake of completeness, as were those set out in paragraphs 329 and 520 of that judgment, with the result that Cargolux’s complaint alleging contradictory reasoning must be rejected as ineffective, in accordance with the case-law referred to in paragraph 92 of the present judgment.
208Moreover, paragraph 523 of the judgment under appeal relates not to the concept of a ‘single and continuous infringement’, but, as stated in paragraph 511 thereof, to Cargolux’s line of argument, put forward in support of the fourth part of its fifth plea before the General Court, by which it complained that the Commission had failed to adduce the necessary evidence to establish the ‘worldwide’ nature of the single and continuous infringement. In those circumstances, the alleged contradictory reasoning has not been established.
209The second part of the third ground of appeal must therefore be rejected as in part inadmissible, in part unfounded and in part ineffective. It follows that the third ground of appeal must be rejected.
The fourth ground of appeal, relating to the extent of Cargolux’s participation in the single and continuous infringement
210By its fourth ground of appeal, which consists of three parts, Cargolux submits that the General Court, in any event, erred in law by finding Cargolux liable for all aspects of the single and continuous infringement. By the first and second parts, it submits that the General Court (i) erred in law and distorted the evidence and (ii) infringed the principle of equal treatment by holding it liable for having participated in the element of the infringement relating to the refusal to pay commission. By the third part, it claims that the General Court erred in law when the latter assessed its liability for the element of the infringement relating to the security surcharge.
The first part, relating to Cargolux’s participation in the refusal to pay commission
–Arguments of the parties
211Cargolux submits that the General Court erred in law and distorted the evidence in finding that Cargolux was liable for having participated in the element of the infringement relating to the refusal to pay commission.
212First, in paragraph 486 of the judgment under appeal, the General Court relied on recital 688 of the decision at issue to state that several carriers had exchanged information on a bilateral level in order to assure each other that they would continue to adhere to the refusal to pay commission. That recital relates to a bilateral contact between Deutsche Lufthansa and Société Air France which does not involve Cargolux, so that it cannot establish Cargolux’s participation in that element of the infringement.
213Second, the General Court failed to carry out an in-depth review of the decision at issue in the light of the pleas raised by Cargolux, in disregard of the review of legality which it is required to carry out. In an annex to its application before the General Court, Cargolux individually challenged each piece of evidence put forward by the Commission concerning its participation in the element of the infringement relating to the refusal to pay commission. The General Court does not address this in the judgment under appeal, with the result that that judgment does not enable Cargolux to understand the reasons why the evidence referred to in that annex ‘[was] upheld against it’.
214The Commission contends that this part is unfounded.
–Findings of the Court
215In the first place, in so far as this part of the ground of appeal relates, by its first complaint, to paragraph 486 of the judgment under appeal, it should be borne in mind that, according to settled case-law, there is distortion where, without recourse to new evidence, the assessment of the existing evidence is clearly incorrect or manifestly at odds with its wording. However, such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. Moreover, where an appellant alleges distortion of evidence by the General Court, that person must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in that person’s view, led to such distortion (see, to that effect, judgments of 26 September 2024, JCDecaux Street Furniture Belgium v Commission, C‑710/22 P, EU:C:2024:787, paragraph 63, and of 22 May 2025, Luossavaara-Kiirunavaara v Commission, C‑621/23 P, EU:C:2025:368, paragraph 108 and the case-law cited).
216In paragraph 486 of the judgment under appeal, the General Court found that it was apparent from the decision at issue that several carriers had exchanged information on a bilateral level in order to assure each other that they would continue to adhere to the refusal to pay commission, as they had previously agreed. It set out, in that regard, by way of illustration, the content of recital 688 of the decision at issue, describing a telephone conversation between two carriers other than Cargolux.
217It is apparent from the decision at issue that the General Court correctly reported what is set out in recital 688. Consequently, the alleged distortion has not been established.
218Furthermore, in so far as, by that complaint relating to paragraph 486 of the judgment under appeal, Cargolux disputes the relevance of what the General Court noted in paragraph 486 in order to establish its participation in the element of the infringement relating to the refusal to pay commission, it must be rejected as inadmissible, in accordance with the case-law referred to in paragraph 96 of the present judgment, since, by that complaint, the Court is being requested to carry out a new assessment of the facts and evidence which was already carried out by the General Court in paragraphs 485 and 486 of the judgment under appeal.
219In the second place, as regards the complaint set out in paragraph 213 of the present judgment, it should first of all be recalled that, when an action is brought before it under Article 263 TFEU for the annulment of a decision applying Article 101(1) TFEU, the General Court must generally undertake, on the basis of the evidence adduced by the applicant in support of the pleas in law put forward, a full review of whether or not the conditions for applying that provision are met. The General Court must also establish that the Commission has stated reasons for its decision. Moreover, in carrying out such a review, the General Court cannot use the margin of assessment which the Commission enjoys by virtue of the role assigned to it in relation to competition policy by the EU and FEU Treaties, as a basis for dispensing with an in-depth review of the law and of the facts (judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraphs 44 and 45 and the case-law cited).
220In the present case, it is apparent from the file submitted to the Court of Justice, and in particular from the written pleadings before the General Court, that the evidence submitted by Cargolux to the General Court, in the annex referred to in paragraph 213 of the present judgment, was submitted in support of its line of argument that the Commission had failed to take account of the specific legal context in which the contacts which it had had with other carriers concerning the refusal to pay commission had taken place. According to Cargolux’s submissions before the General Court, that context established that the purpose of the discussions concerning that refusal to pay commission reflected a legitimate response by the carriers to concerted practices of, and litigation and threats of boycott by, the freight forwarders. That evidence thus established, according to Cargolux, that the carriers had focused their discussions on whether or not, as a matter of legal principle under the relevant regulations, surcharges were commissionable. In particular, it relied on that evidence in order to establish that, by failing to take that context into account, the Commission had not established to the requisite legal standard the nature of the carriers’ conduct as a restriction by object.
221It is precisely to that line of argument, summarised in paragraph 479 of the judgment under appeal, that the General Court responded in paragraphs 482 to 491 of the judgment under appeal. In that regard, it found, in paragraphs 484 to 486 of that judgment, that it was based on a factually incorrect premiss and, in paragraphs 487 to 490, that it was also based on a premiss that was incorrect in law. It thus found, inter alia, that Cargolux was mistaken in maintaining that the carriers’ discussions had focused on whether the surcharges could give rise to the charging of commission, by analysing in that regard recitals 675 to 702 of the decision at issue and the evidence on which the Commission had relied, that evidence also being mentioned by Cargolux in its written pleadings before the General Court.
222It must therefore be stated that, under the cloak of an allegedly insufficient exercise by the General Court of the review of legality which it was required to carry out, Cargolux seeks to obtain from the Court of Justice a new assessment of the facts and the evidence, without alleging that the General Court distorted those facts and that evidence. Accordingly, in so far as, by the complaint set out in paragraph 213 of the present judgment, Cargolux takes issue with the General Court for having considered that its line of argument seeking to call into question the anticompetitive nature of the contacts at issue had to be rejected, even though Cargolux individually challenged each piece of evidence put forward by the Commission, that complaint must be rejected as inadmissible, in accordance with the case-law referred to in paragraph 96 of the present judgment.
223Next, in so far as, by that complaint, Cargolux claims that the judgment under appeal does not enable it to understand the reasons why the evidence referred to in that annex ‘[was] upheld against it’, it should be noted that it is apparent from paragraph 485 of the judgment under appeal that the General Court referred to that evidence, set out in recitals 675 to 702 of the decision at issue, only in order to establish that the incriminated carriers had not simply defined a common position on the issue of the payment of commission, in order to defend it in a coordinated manner before the relevant courts or promote it collectively inter alia to public authorities, but 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. The General Court therefore did not directly use that evidence against Cargolux, but relied on it in order to reject the line of argument which Cargolux had submitted to it, by which Cargolux claimed that the carriers’ discussions had focused on whether the surcharges could give rise to the charging of commission. Accordingly, in so far as that complaint is therefore based on a misreading of the judgment under appeal, it is unfounded.
224Lastly, in the light of the case-law referred to in paragraphs 151 and 152 of the present judgment, it cannot be held that, by not expressly mentioning, in the judgment under appeal, the annex referred to in paragraph 213 of the present judgment or each piece of evidence that Cargolux individually challenged in that annex, the General Court infringed its obligation to state reasons for the judgment under appeal. Accordingly, in so far as, by the complaint set out in paragraph 213 of the present judgment, Cargolux alleges an infringement by the General Court of its obligation to state reasons, that complaint must also be rejected as unfounded.
225In the light of the foregoing, the first part of the fourth ground of appeal must be rejected as in part inadmissible and in part unfounded.
The second part, alleging breach of the principle of equal treatment
–Arguments of the parties
226Cargolux submits that, by holding it liable for the element of the infringement relating to the refusal to pay commission, the General Court infringed the principle of equal treatment.
227First, the General Court infringed that principle by treating Cargolux differently from British Airways plc even though those undertakings were in comparable situations. In paragraph 493 of the judgment under appeal, the General Court refers to the recitals cited in the decision at issue as proving Cargolux’s participation in the refusal to pay commission. Those recitals establish that it was in a situation comparable to that of that other carrier as regards the evidence relating to that conduct. A comparison of the findings in recitals 685, 686, 692, 694 and 696 of that decision which are summarised in recital 743 thereof, concerning British Airways, with the findings concerning Cargolux, which are recalled in paragraph 493 of that judgment, demonstrates that their respective situations were comparable. It follows that that other carrier participated in seven contacts relating to the refusal to pay commission over the course of 10 months, whereas Cargolux participated in nine contacts over the course of 10 months. Of those nine contacts, three also involved that other carrier.
228However, those three contacts – noted by the General Court in paragraphs 493, 497 and 499 of the judgment under appeal as supporting the Commission’s finding relating to Cargolux’s participation in the refusal to pay commission – which are referred to in recitals 503, 560 and 695 of the decision at issue, were not relied on against British Airways, as is apparent from paragraph 386 of the judgment of 30 March 2022, British Airways v Commission (T‑341/17, EU:T:2022:182), even though recitals 503 and 560 are based on multilateral meetings involving both Cargolux and British Airways.
229The General Court thus annulled only the finding of British Airways’ involvement in that element and reduced its fine in the light of its limited participation, but maintained the finding of infringement against Cargolux. However, the General Court did not give the slightest explanation for that unequal treatment.
230Second, the General Court infringed that principle by treating Cargolux differently from SAS Cargo Group A/S, Scandinavian Airlines System Denmark-Norway-Sweden and SAS AB (together, ‘SAS Cargo Group and Others’). In paragraph 958 of the judgment of 30 March 2022, SAS Cargo Group and Others v Commission (T‑324/17, EU:T:2022:175), the General Court reduced by 21% the fine imposed on the applicants in that case, in view of the limited duration of their participation in the element of the infringement relating to the refusal to pay commission, in the light of the duration of that infringement taken as a whole, as it stated in paragraph 958 of that judgment. Cargolux observes, in that regard, that the overall duration of the infringement found against SAS Cargo Group and Others was six years and two months, whereas proof of their conduct relating to the refusal to pay commission amounted to a period of seven months. Cargolux refers in that regard to recitals 1169, 680 and 686 of the decision at issue. As stated in recitals 1169, 695 and 698 of that decision, the overall duration of the infringement found against Cargolux was five years and proof of its conduct relating to the refusal to pay commission amounted to a period of five months. However, the General Court did not make any recognition of this parallel or give any justification or explanation for that unequal treatment. It was therefore wrong not to apply the same reduction percentage to the amount of the fine imposed on Cargolux.
231The Commission disputes that line of argument.
–Findings of the Court
232The principle of equal treatment is a general principle of EU law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. That principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgments of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others, C‑550/07 P, EU:C:2010:512, paragraphs 54 and 55, and of 27 June 2024, Lupin v Commission, C‑144/19 P, EU:C:2024:545, paragraph 137 and the case-law cited).
233Observance of that principle is binding on the General Court, including when it exercises its unlimited jurisdiction. When the amount of the fine imposed on them is determined, that exercise cannot result in discrimination between undertakings which have participated in an infringement of the competition rules (see, to that effect, judgments of 16 November 2000, Sarrió v Commission, C‑291/98 P, EU:C:2000:631, paragraph 97, and of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 138).
234In the present case, as regards, in the first place, the alleged breach of the principle of equal treatment of Cargolux by comparison with British Airways as regards the finding of the participation of each of those carriers in the element of the infringement relating to the refusal to pay commission, it should be noted that, in paragraph 493 of the judgment under appeal, the General Court stated that the Commission had found that Cargolux had participated in that element on the basis of the factors set out in recital 754 of the decision at issue, which the General Court cited in that paragraph.
235However, contrary to Cargolux’s submission, it is not apparent from a comparison of the findings in recital 754 with those in recital 743 of that decision, listing the contacts relied on by the Commission against British Airways, that those two carriers were in comparable situations as regards the evidence used against them in order to establish their participation in that element. Nor, therefore, were they in comparable situations before the General Court.
236It is therefore sufficient to note that the premiss on which Cargolux bases the line of argument set out in paragraphs 227 to 229 of the present judgment is, in any event, incorrect. That line of argument must, therefore, be rejected as unfounded.
237In the second place, as regards the alleged breach of the principle of equal treatment by comparison with SAS Cargo Group and Others, as set out in paragraph 230 of the present judgment, it is sufficient to note that that claim is based on a misreading of the judgment of 30 March 2022, SAS Cargo Group and Others v Commission (T‑324/17, EU:T:2022:175). It is true that the wording of paragraph 958 thereof, on which Cargolux relies, may appear ambiguous, in that the General Court refers in that paragraph to ‘the limited period during which the incriminated carriers coordinated the refusal to pay commission in relation to the duration of the single and continuous infringement as a whole’. However, it is clear from that judgment, and in particular from paragraphs 698 to 712, 901 and 957 thereof, that it was on the ground that the Commission had been wrong to ascribe to the applicants in that case liability for the element of the infringement relating to the refusal to pay commission and that it had therefore overestimated the extent of their participation in the single and continuous infringement, that the General Court held that it was inappropriate to grant them a reduction of only 10% of the basic amount of the fine on the basis of their limited participation in the single and continuous infringement, but that it was appropriate to grant them a reduction of 21% on the basis of that limited participation.
238In the present case, it is common ground that the General Court did not find that the Commission had wrongly held Cargolux liable for the element of the infringement relating to the refusal to pay commission. As is apparent from the analysis of the first part of the fourth ground of appeal, Cargolux has, moreover, not succeeded in establishing that the judgment under appeal is, in that regard, vitiated by an error of law or a distortion of the facts or evidence. In those circumstances, it cannot be held that the General Court infringed the principle of equal treatment by granting SAS Cargo Group and Others an additional reduction in the basic amount of their fine on the basis of their limited participation in the single and continuous infringement, in view of the annulment of the finding of their participation in that element, while it did not grant such a reduction to Cargolux, in relation to which the finding of participation in that element had not been annulled.
239The line of argument set out in paragraph 230 of the present judgment is therefore unfounded.
240The second part of the fourth ground of appeal must therefore be rejected as unfounded.
The third part, alleging errors of law in the assessment of Cargolux’s liability for the element of the infringement relating to the security surcharge
–Arguments of the parties
241Cargolux submits that the General Court’s finding, in paragraph 477 of the judgment under appeal, that the Commission was entitled to infer from the evidence available to it that Cargolux had continued to participate in the element of the infringement relating to the security surcharge for long periods of time for which there was no evidence whatsoever against it, is vitiated by several errors of law.
242In that regard, Cargolux refers to paragraphs 467 and 468 of the judgment under appeal, in which the General Court found that there were gaps in the evidence showing Cargolux’s participation in the infringement between 26 November 2002 and 14 January 2004, as well as between 28 September 2004 and 14 February 2006, which corresponds to the end date of the infringement. However, as the General Court pointed out in paragraph 471 of that judgment, the case-law requires that, in such circumstances, the lack of distancing of the undertaking concerned is not sufficient to justify a finding of uninterrupted participation of that undertaking in the infringement where, over the course of a significant period, several collusive contacts took place in the absence of its representatives. It is for the Commission, in such a case, to adduce other evidence. In the present case, the General Court was wrong to hold that the assessment of that other evidence, carried out in paragraphs 473 to 476 of the judgment under appeal, permitted the conclusion that Cargolux’s participation in the element of the infringement relating to the security surcharge had continued during those periods.
243First, since the Commission did not appropriately prove that the security surcharge and the fuel surcharge were part of the single and continuous infringement, as that conduct was not sufficiently complementary, nor did it form part of an overall plan, paragraph 473 of the judgment under appeal is incorrect. It follows that the General Court was not entitled to rely on the contacts concerning the element of the infringement relating to the fuel surcharge in order to extend Cargolux’s participation in the element of that infringement relating to the security surcharge and, therefore, to find that its participation in the infringement as a whole ended at a later date. Nor does the case-law cited in paragraph 229 of the judgment under appeal support such an approach, since that case-law does not relate to the possibility of establishing the extension of an undertaking’s participation in an infringement where that undertaking has experienced periods during which the existence of contacts directly involving that undertaking has not been established (‘the gap periods’).
244Second, paragraph 474 of the judgment under appeal is incorrect, since neither that paragraph, nor that judgment, nor even the decision at issue, explains how the occasional nature of the contacts concerning the element relating to the security surcharge makes it possible to establish that the gap periods were normal periods between such contacts or that Cargolux had continued to participate in that element during those periods, especially since the contacts between the other carriers concerning that element had continued during those periods. The comparison of the frequency of contacts concerning, on the one hand, the fuel surcharge and, on the other, the security surcharge is irrelevant, since the only relevant factor is whether the contacts between the other carriers concerning the security surcharge had continued in the absence of Cargolux. If that were the case, it would establish that the nature of the conduct relating to the security surcharge required such contacts. Consequently, the General Court could not conclude that the Commission was entitled to take the view that Cargolux had continued to participate in that element during those periods, when it had no contact whatsoever with other carriers. For the same reason, it is also insufficient to note that the security surcharge required only occasional contacts in order to infer from this that Cargolux had continued to participate in that element during those periods, given that the contacts relating to the security surcharge had continued between the other carriers during those periods. The General Court’s assessment is therefore incorrect in ignoring the fact that contacts between the other carriers on the security surcharge continued repeatedly throughout Cargolux’s gap periods.
245Third, paragraph 475 of the judgment under appeal is incorrect inasmuch as the General Court claims therein that Cargolux did not dispute that the effects of the coordination relating to the security surcharge continued during the period when there was no evidence of contacts.
246First of all, neither the Commission nor the General Court gave any indication as to the effects which allegedly continued. That approach is contrary to the case-law according to which the Commission must adduce evidence of facts sufficiently proximate in time for it to be reasonable to accept that the infringement continued uninterruptedly between two specific dates. In that regard, it is for the Commission to prove the duration of the infringement and any doubt on its part must operate to the advantage of the undertaking concerned. In that context, Cargolux also refers, inter alia, to paragraph 30 of the judgment of 14 January 2021, Kilpailu- ja kuluttajavirasto (C‑450/19, EU:C:2021:10), which limits, in the absence of sufficient evidence, the possibility for the Commission to consider that the duration of the infringement extends beyond the date of the last contacts between the infringing parties.
247Next, the General Court failed to take account of the fact that the decision at issue had not shown that the agreements concluded during the last contacts including Cargolux, referred to in recitals 618 and 640 of the decision at issue, were to continue to produce their effects until a future date, as required however by paragraphs 125 and 128 of the judgment of 16 June 2011, Caffaro v Commission (T‑192/06, EU:T:2011:278). It is therefore clear that Cargolux’s participation in the conduct relating to the security surcharge ended once it was no longer in contact with the remaining carriers, that is to say after the contacts on 26 November 2002 and 28 September 2004, referred to in those recitals.
248Lastly, paragraph 475 of the judgment under appeal is vitiated by an unlawful reversal of the burden of proof, since it is not for the undertaking concerned to disprove that the effects of the coordination continued or even to claim that it was unaware of the fact that the other carriers had continued their coordination. On the contrary, it is for the Commission to prove that such effects continued for the alleged duration of the infringement and to demonstrate that the undertaking was aware of the offending conduct or could reasonably have foreseen it. However, the Commission does not explain how Cargolux could foresee the offending conduct in question and be prepared to accept the risk.
249Fourth, paragraph 476 of the judgment under appeal, in which the General Court noted that Cargolux had not established that it had publicly distanced itself from the coordination relating to the security surcharge during the gap periods or had resumed fair and independent competitive conduct during those periods, is also incorrect. Moreover, the General Court itself recognised, in paragraph 471 of that judgment, that distancing is just one factor for consideration in determining whether an undertaking has continued to participate in an infringement over the course of significant gaps, without any evidence of participation.
250If, contrary to Cargolux’s submissions, the Court of Justice considers that the judgment under appeal should not be set aside and the decision at issue should not be annulled in so far as it concerns Cargolux, on the basis of that fourth ground of appeal, Cargolux seeks, in the alternative, the annulment in part of that decision and a reduction of the fine pursuant to the unlimited jurisdiction of the Court of Justice, for the reasons set out in its grounds of appeal or any other ground raised by the Court of its own motion.
251The Commission contends that this part of the ground of appeal is in part inadmissible and, in part and in any event, unfounded.
–Findings of the Court
252It is settled case-law that in most cases the existence of an anticompetitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 57, and of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 110 and the case-law cited).
253Such coincidences and indicia, when evaluated overall, may provide information not just about the mere existence of anticompetitive practices or agreements, but also about the duration of continuous anticompetitive practices or the period of application of anticompetitive agreements (judgments of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C‑105/04 P, EU:C:2006:592, paragraph 95, and of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 111 and the case-law cited).
254As regards the lack of evidence of an agreement during certain specific periods or, at least, the lack of evidence of its implementation by an undertaking during a given period, the fact that such evidence has not been produced in relation to certain specific periods does not preclude the infringement from being regarded as established during a longer overall period than those periods, provided that such a finding is supported by objective and consistent indicia. In the context of an infringement extending over a number of years, the fact that the agreement is shown to have applied during different periods, which may be separated by longer or shorter periods, has no effect on the existence of the agreement, provided that the various actions which form part of the infringement pursue a single purpose and fall within the framework of a single and continuous infringement (judgments of 21 September 2006, Technische Unie v Commission, C‑113/04 P, EU:C:2006:593, paragraph 169, and of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 112 and the case-law cited).
255As regards, in particular, an infringement extending over a number of years, the fact that direct evidence of an undertaking’s participation in that infringement during a specified period has not been produced does not preclude that participation from being regarded as established also during that period, provided that that finding is based on objective and consistent indicia (judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 27 and the case-law cited).
256Thus, the Commission may assume that the infringement – or the participation of an undertaking in the infringement – has not been interrupted, even if it has no evidence of the infringement in relation to certain specific periods, provided that the various actions which form part of the infringement pursue a single purpose and are capable of falling within the framework of a single and continuous infringement; and where the undertaking concerned has not relied on indicia or evidence establishing that, on the contrary, the infringement, or its participation in it, has not been pursued during those periods (judgment of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 114).
257In that context, the absence of public distancing forms a factual situation on which the Commission can rely in order to prove that an undertaking’s anticompetitive conduct has continued. However, in a case where, over the course of a significant period of time, several collusive meetings have taken place without the participation of the representatives of the undertaking at issue, the Commission may not merely establish the absence of public distancing, but must also base its findings on other evidence (see, to that effect, judgments of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 28, and of 28 November 2019, LS Cable & System v Commission, C‑596/18 P, EU:C:2019:1025, paragraph 33).
258In the present case, it should be noted that, as Cargolux submits, the General Court pointed out, in paragraph 467 of the judgment under appeal, that the decision at issue revealed a ‘gap’ in the evidence relied on to establish its participation in the element of the infringement relating to the security surcharge between 26 November 2002 and 14 January 2004, and from 28 September 2004 until the end of the single and continuous infringement, on 14 February 2006. It therefore stated, in paragraph 468 of that judgment, that, in the circumstances of the present case, such periods were sufficiently long for it to be necessary to ascertain whether Cargolux’s participation in the element of the infringement relating to the security surcharge had been interrupted between 26 November 2002 and 14 January 2004, and had ended on 28 September 2004 rather than on 14 February 2006. It then recalled, in that regard, in paragraphs 469 to 471 of that judgment, in essence, the case-law set out in paragraphs 254 to 257 of the present judgment.
259Moreover, in paragraph 472 of the judgment under appeal, which Cargolux does not challenge, the General Court stated that evidence capable of demonstrating the continuation of anticompetitive conduct by an undertaking during periods in which it did not participate in one or more collusive contacts include, inter alia, the nature of the infringement at issue, the operation of the cartel at issue, the conduct of the undertaking concerned on the relevant market, the inclusion of that conduct in a single and continuous infringement consisting of several other elements or the effects produced by that conduct.
260According to Cargolux, it was in the application of the criteria derived from that case-law, in paragraphs 473 to 476 of the judgment under appeal, that the General Court made the errors of law which it alleges.
261In that regard, it should be recalled at the outset that it follows from the case-law referred to in paragraphs 252 to 257 of the present judgment that the General Court may, without making an error of law, base its appraisal of the existence and duration of an anticompetitive practice or agreement on an overall evaluation of all the relevant evidence and indicia. The matters set out in paragraphs 473 to 476 of the judgment under appeal cannot therefore be assessed in isolation. However, the question as to what probative value the General Court attributed to each item of evidence and each indicium adduced by the Commission is a question of assessment of the facts which, as such, is not amenable to review by the Court on appeal (see, to that effect, judgment of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C‑105/04 P, EU:C:2006:592, paragraph 96).
262In that context, as regards, in the first place, Cargolux’s complaint relating to paragraph 473 of the judgment under appeal, it is sufficient to note that that complaint is based on the premiss that the General Court was not justified in finding that the Commission had demonstrated to the requisite standard that the security surcharge and the fuel surcharge formed part of the same single and continuous infringement. However, it follows from the analysis of the second part of the third ground of appeal that that premiss is incorrect. Accordingly, that complaint must be rejected as unfounded.
263In the second place, as regards the complaint directed against paragraph 474 of the judgment under appeal, it should be noted that, in that paragraph, the General Court observed that the implementation of the security surcharge required significantly less frequent contacts than the implementation of the fuel surcharge, as the security surcharge was not based on an index with regular adjustments being required in accordance with changes in that index. The General Court found that that explained why, following its introduction, there were only occasional contacts between carriers concerning its implementation.
264It must therefore be noted that, in paragraph 474 of the judgment under appeal, the General Court merely found that the fact that what was involved was conduct relating to a surcharge, the amount of which did not, by its nature, require regular adjustments, was an indication which contributed to establishing that Cargolux was engaging in anticompetitive conduct, despite the lack of evidence of its direct participation in the collusive contacts relating to the security surcharge during the gap periods. That assessment of the facts, which cannot be called into question by the Court of Justice on appeal, since the distortion of those facts has not been alleged, relates, in essence, to the nature of the infringement and, in accordance with the case-law set out in paragraph 472 – which is not disputed in the present appeal – of the judgment under appeal, the nature of the infringement at issue may indeed be taken into account as evidence serving to establish the pursuit of anticompetitive conduct by an undertaking, despite the direct absence of its participation in the pursuit of that conduct during certain periods.
265Furthermore, in so far as Cargolux claims, in essence, that the General Court erred in finding that the nature of the conduct relating to the security surcharge did not require regular contacts, it calls into question the General Court’s assessment of the facts, which falls outside the scope of the Court’s jurisdiction on appeal, in accordance with the case-law referred to in paragraphs 96 and 261 of the present judgment.
266That complaint must therefore be rejected as in part inadmissible and in part unfounded.
267In the third place, as regards the complaint directed against paragraph 475 of the judgment under appeal, it should be noted that, in that paragraph, the General Court stated that Cargolux did not dispute that the effects of the coordination relating to the security surcharge had continued during the period for which there is no evidence of contacts. The General Court added that, moreover, Cargolux did not claim that it was unaware that the other incriminated carriers continued to coordinate on the security surcharge during that period.
268In that regard, in so far as Cargolux complains, in essence, that the General Court failed to state reasons for the judgment under appeal by failing to indicate which effects were involved, it is sufficient to note, first, that it is manifestly clear from that paragraph that the General Court was referring to the anticompetitive effects resulting from the conduct relating to the security surcharge, namely an increase in the price of air freight services, to the ultimate detriment of consumers in the EEA. In accordance with the case-law set out in paragraph 472 of the judgment under appeal – case-law which is not disputed in the present appeal – the effects produced by the anticompetitive conduct concerned may indeed be taken into account as evidence serving to establish the pursuit of anticompetitive conduct by an undertaking, despite the direct absence of its participation in the pursuit of that conduct during certain periods.
269In those circumstances, Cargolux’s argument that the General Court unlawfully reversed the burden of proof by requiring it to rebut the existence of anticompetitive effects which the Commission had not previously identified or established and to prove that it was unaware of the fact that the other carriers had continued their coordination cannot be accepted either.
270Furthermore, inasmuch as Cargolux complains that the Commission failed to explain how it could foresee the offending conduct in question, that criticism is aimed not at the judgment under appeal, but at the decision at issue. It must, as a consequence, to that extent, 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).
271In addition, the judgments relied on by Cargolux cannot establish that paragraph 475 of the judgment under appeal is incorrect, since those judgments relied on concern circumstances different from those at issue in the present case. Paragraph 30 of the judgment of 14 January 2021, Kilpailu- ja kuluttajavirasto (C‑450/19, EU:C:2021:10), relates to agreements which had ceased to be in force. It is common ground that the Commission found, in the decision at issue, that the single and continuous infringement had ended on 14 February 2006 and that that date corresponds to the first day of the Commission’s inspections. The present case does not therefore concern an infringement the duration of which was assessed by reference to the period during which the undertakings concerned engaged in conduct prohibited by Article 101 TFEU, even though the cartel had already formally ceased to be in force.
272Moreover, paragraphs 125 and 128 of the judgment of the General Court of 16 June 2011, Caffaro v Commission (T‑192/06, EU:T:2011:278), relate to circumstances in which the anticompetitive agreement at issue had allegedly not been applied, which is not the case here.
273It follows from the foregoing that the line of argument set out in paragraphs 245 to 248 of the present judgment is inadmissible in part and unfounded in part.
274In the fourth place, as regards the complaint directed against paragraph 476 of the judgment under appeal, it must be stated that, in that paragraph, the General Court noted that Cargolux did not establish, or even allege, that it publicly distanced itself from the coordination relating to the security surcharge during the periods for which there is no evidence of contacts, and that nor did it establish that it had resumed fair and independent competitive conduct on the relevant market during those periods.
275However, that failure to distance itself publicly is not the only factor relied on by the General Court in support of its conclusion, set out in paragraph 477 of the judgment under appeal, that the Commission was entitled to infer from the evidence available to it that Cargolux’s participation in the element of the infringement relating to the security surcharge had continued both between 26 November 2002 and 14 January 2004 and from 28 September 2004 until the end of the infringement, as indicated by the words ‘in those circumstances’ which precede that conclusion and as is apparent from the foregoing analysis, relating to the third part of the fourth ground of appeal. Accordingly, it cannot be held that, by its finding in paragraph 476 of that judgment, the General Court failed to have regard to the settled case-law referred to in paragraph 257 of the present judgment, which is also set out in paragraph 471 of the judgment under appeal, according to which, in a case where, over the course of a significant period of time, several collusive meetings have taken place without the participation of the representatives of the undertaking at issue, the Commission may not merely establish the absence of public distancing, but must also base its findings on other evidence.
276It follows that the complaint directed against paragraph 476 of the judgment under appeal is unfounded.
277The third part of the fourth ground of appeal must therefore be rejected as in part inadmissible and in part unfounded, as must, consequently, that fourth ground of appeal.
278As none of the grounds raised by Cargolux in support of its appeal has been upheld, the appeal must be dismissed in its entirety.
Costs
279Under 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.
280In accordance with Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
281Since the Commission has applied for costs to be awarded against Cargolux and the latter has been unsuccessful, the appellant must be ordered to bear its own costs and to pay those incurred by the Commission.
Operative part
On those grounds, the Court (Fifth Chamber) hereby:
1.Dismisses the appeal;
2.Orders Cargolux Airlines International SA to pay the costs.
Delivered in open court in Luxembourg on 26 February 2026.
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