Official Journal of the European Union

C 303/23

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(Case C-378/22 P)

(2022/C 303/30)

Language of the case: English

Parties

Appellant: British Airways plc (represented by: A. Lyle-Smythe and R. O'Donoghue, advocaten, T. Sebastian, Barrister)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

—set aside the judgment under appeal in full, or in alternative, in part insofar as it rejects the appellant’s fourth plea and the second part of the appellant’s seventh plea;

—if the judgment under appeal is not set aside in full, set aside paragraph 4 of the operative part of the judgment insofar as it deals with the appellant’s fourth plea and the second part of the appellant’s seventh plea;

—annul the 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) in whole or in part, specifically the first sentence of recital 1045 and recital 1046 in its entirety; and

—award the appellant the costs of the appeal.

Pleas in law and main arguments

The appellant seeks to set aside, in whole or in part, the judgment under appeal. The judgment under appeal resolved the appellant’s application to annul, in whole or in part, the Decision.

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

First plea, that the General Court erred in law by substituting its own reasoning for that of the Commission and failed to identify any qualified effects on competition in the EU/EEA. This plea has two parts. First, that the Commission’s cursory reasoning was plainly inadequate and the General Court erred by impermissibly substituting its own detailed reasoning in place of that reasoning. Second, that the Commission’s substituted reasoning is in any event insufficient as it fails to identify a relevant and sufficient effect on competition in the EU/EEA.

Second plea, that the General Court erred in law in arriving at its conclusions on price effects in downstream goods markets located in the EU/EEA. The General Court distorted the evidence before it, improperly placed the burden of proof on the appellant to disprove material factual propositions and exceeded its competence by substituting its own reasoning for altogether different reasoning of the Commission.

Third plea, that the General Court erred in law and misconstrued the Decision mentioned above by relying on certain aspects of a single and continuous infringement, which had effects within the EU/EEA to establish jurisdiction over distinct foreign conduct, which was not shown to have generated qualified effects within EU/EEA territory.

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