24.7.2017

EN

Official Journal of the European Union

C 239/53

(Case T-325/17)

(2017/C 239/67)

Language of the case: English

Parties

Applicant: Koninklijke Luchtvaart Maatschappij NV (Amstelveen, Netherlands) (represented by: M. Smeets, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—annul 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) in whole for a violation of the prohibition of arbitrariness and the principle of equal treatment in accordance with its first plea; for lack of jurisdiction over air transport from airports outside the EEA to airports within the EEA in accordance with its second plea (in primary order); for a violation of Article 49 of the EU Charter of Fundamental Rights, Article 101 TFEU, Article 53 EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport and the Fining Guidelines (1) in accordance with its fourth plea (in primary order); or

—annul Articles 1(2)(d) and 1(3)(d) of the contested decision, in so far as it is found in these provisions that the applicant committed an infringement in relation to air transport from airports outside the EEA to airports within the EEA, in accordance with its second plea (in subsidiary order); and

—annul Article 1 and Article 1(1)(d), 1(2)(d), 1(3)(d) and 1(4)(d) of the contested decision, in so far as it is found there that the single and continuous infringement included the non-commissioning of surcharges, in accordance with its third plea; and

—in alternative order, if the Court does not annul the contested decision in whole in accordance with its first, second and fourth plea, exercise its full discretion to reduce the fine imposed on the applicant in Article 3(c) and 3(d) of the contested decision in accordance with its first, second, third and fourth plea; and finally,

—order the Commission to pay the costs of these proceedings if the Court annuls the contested decision in whole or in part, or reduces the fine.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

1.First plea in law, alleging a violation of the prohibition of arbitrariness and the principle of equal treatment.

—The applicant puts forward that the contested decision violates the prohibition of arbitrariness by excluding undertakings from the operative part of the contested decision which, according to its statement of reasons, have taken part in the same behaviour as the addressees of the contested decision.

—The applicant further puts forward that the contested decision violates the principle of equal treatment by sanctioning the applicant for an infringement and imposing a fine on the applicant, and exposing it to civil liability, while undertakings are excluded from the operative part which, according to its statement of reasons, have taken part in the same behaviour as the addressees of the contested decision.

2.Second plea in law, alleging a lack of jurisdiction over air cargo transport from airports outside the EEA to airports in the EEA.

—The applicant puts forward that the contested decision wrongly relies on the assumption that the single and continuous infringement concerning air transport from airports outside the EEA to airports in the EEA was implemented in the EEA.

—The applicant further puts forward that the contested decision wrongly relies on the assumption that the single and continuous infringement concerning air transport from airports outside the EEA to airports in the EEA had a substantial, immediate and foreseeable effect on competition in the EEA.

3.Third plea in law, alleging a failure to state reasons and manifest error of assessment in finding that the non-commissioning of surcharges constitutes a separate element of the infringement.

—The applicant puts forward that the two assumptions on which the contested decision relies to qualify non-commissioning of surcharges as a separate element of the infringement, are contradictory in light of the economic and regulatory context of the industry concerned.

—The applicant further puts forward that the non-commissioning of surcharges is indistinguishable from the practices regarding the fuel surcharge and the security surcharge, and does not constitute a separate element of the infringement.

4.Fourth plea in law, alleging that the fine is in violation of the principle of the legality and the proportionality of fines under Article 49 of the EU Charter of Fundamental Rights, Article 101 TFUE and the Fining Guidelines, and that it is manifestly erroneous.

—The applicant puts forward that the value of KLM’s Cargo’s sales to which the infringement relates is the value of the fuel and the security surcharge and not KLM Cargo’s full turnover.

—The value of KLM Cargo’s sales on which the basic amount of the fine has been based should not include KLM Cargo’s sales outside the EEA.

—The 15 % reduction of the fine on account of governmental intervention does not correspond with the degree of governmental intervention during the period of infringement.

Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ C 210, p. 2).