12.3.2011

EN

Official Journal of the European Union

C 80/26

(Case T-39/11)

2011/C 80/51

Language of the case: English

Parties

Applicant: Cargolux Airlines International SA (Sandweiler, Luxembourg) (represented by: J. Joshua, Barrister, and G. Goeteyn, Solicitor)

Defendant: European Commission

Form of order sought

—annul Articles 1-4 in whole or in part insofar as they relate to the applicant;

—cancel the fine imposed on the applicant in Article 5;

—alternatively, substantially reduce the fine pursuant to the unlimited jurisdiction of the Court;

—order the Commission to pay the costs.

Pleas in law and main arguments

Application for annulment of Commission Decision C(2010) 7694 final of 9 November 2010 in case COMP/39.258 — Airfreight insofar as it finds that the applicant infringed Article 101 TFEU and Article 53 EEA by coordinating with other carriers its pricing behaviour for air freight services in respect of (i) fuel surcharges, (ii) security surcharges, and (iii) the non-payment of commissions on surcharges.

In support of the action, the applicant relies on five pleas in law:

1.First plea in law, alleging the manifest error of assessment since the Commission wrongly categorised the conduct as a restriction by object and has demonstrated no anti-competitive effect. In this regard the applicant submits that:

—the existence of the concept of restriction by object does not liberate the Commission from the duty to conduct some kind of assessment which it failed to do;

—the decision does not articulate any theory of harm, in particular given that all allegations on the fixing of underlying rates have been dropped.

2.Second plea in law, alleging the breach of essential procedural requirement, failure to give reasons, violation of rights of defence and manifest error of assessment since the Commission failed to identify with sufficient particularity the scope and parameters of conduct supposedly constitutive of the single continuous infringements.

3.Third plea in law, alleging a manifest error of assessment since the Commission failed to establish a reliable evidential basis for its conclusions or to prove the facts on which it bases its findings to the required legal standard. In this regard, the applicant submits that:

—none of the errors contained in the statement of objections and brought to the Commission’s attention at the time have been corrected in the decision;

—the Commission has abused the concept of the single continuous infringement by insisting that entirely innocent conduct can form part of the illegal enterprise and has used the label of a ‘global cartel’ as an excuse to bring in entirely prejudicial and irrelevant evidence.

4.Fourth plea in law, alleging that the Commission erred in law by wrongly asserting jurisdiction over supposed anti-competitive coordination in relation to flights from third country airports to airports inside the EEA (‘inbound flights’). In the applicant’s submissions such activities are outside of the territorial scope of Article 101 TFUE and Article 53 of the EEA Agreement.

5.Fifth plea in law, put forward as regards to the review of the fine under the unlimited jurisdiction of the Court, alleging a manifest error of assessment and breach of principle of proportionality. In this regard the applicant submits that:

—the 2006 Fine Guidelines are not compatible with the requirement of Article 23(2) of Regulation 1/2003 to base the fine on gravity and duration;

—the Commission grossly overstated the overall gravity of the alleged infringement. Neither the percentage level (16 % of the value of sales), nor the additional amount are warranted in the present case;

—in relation to the applicant, the Commission wrongly assessed the duration of the infringements, mistakenly rejected mitigating factors and failed to take account of all relevant circumstances including the overall fairness of the sanctions and the economic situation of the applicant.

Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ 2003 L 1, p. 1

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