2018:59 Panalpina World Transport (Holding) and Others v Commission

Court Court of Justice
Date of ruling 9 March 2018
Case name (short version) Panalpina World Transport (Holding) and Others v Commission
Case Citation C-271/16 P

ECLI:EU:C:2018:59

Key words Appeal — Competition — Agreements, decisions and concerted practices — Article 101 TFUE — Price fixing — International air freight forwarding services — Tariff agreement affecting the final price of services
Basic context By their appeal, Panalpina World Transport (Holding) Ltd (‘Panalpina Holding’), Panalpina Management AG and Panalpina China Ltd (together ‘Panalpina and Others’) ask the Court to set aside the judgment of the General Court of the European Union of 29 February 2016, Panalpina World Transport (Holding) and Others v Commission (T‑270/12, not published, ‘the judgment under appeal’, EU:T:2016:109) by which the General Court dismissed their application for annulment of Commission Decision C(2012) 1959 final of 28 March 2012 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39462 — Freight forwarding, ‘the decision at issue’), in so far as it concerns the appellants, and for reduction of the fines imposed on them in that decision
Points arising – admissibility
Points arising – substance 28      It is common ground that the relevant product market is that of international air freight forwarding services and not that of its various charging components, on whose pricing Panalpina and Others and the other undertakings covered by the decision at issue agreed. Although, in the decision at issue, the Commission found four distinct infringements, corresponding to the four agreements in question relating to the four items intended to be incorporated in the price of international air freight forwarding services, that is to say, the NES, AMS, CAF and PSS, and although those agreements each have their own particular characteristics, be it in their substantive or geographical or material content, their period for which they were in effect, or the undertakings which participated in them, the fact remains that they all concern the market for international air freight forwarding services as a package of services.

29      Therefore, the General Court, after observing in paragraph 116 of the judgment under appeal, in the course of its sovereign assessment of the facts, not contested in the present appeal, that ‘there is a specific demand for freight forwarding services as a package of services’, and then, in paragraph 117 of that judgment, that ‘the AMS, CAF and PSS cartels affected freight forwarding services as a package of services’, did not err in law in finding, in paragraph 119 of the judgment under appeal, that ‘the Commission was entitled to hold, without committing any error of law, that the aim of [the AMS cartel] was not to restrict competition with respect to AMS filing services as individual services, but competition with respect to freight forwarding services as a package of services’. The same is true of the ground set out in paragraph 121 of the judgment under appeal, relating to the CAF cartel.

30      It should be recalled that point 13 of the 2006 Guidelines on the method of setting fines imposed pursuant to Article 23(2) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’) provides in respect of the calculation of fines that ‘in determining the basic amount of the fine to be imposed, the Commission will take the value of … sales of goods or services to which the infringement directly or indirectly relates’. While that concept of the ‘value of sales’ cannot be extended to cover sales which do not fall within the scope of the infringement, it cannot be limited only to the value of sales for which it is established that they were actually affected by that infringement. Having regard to the objective pursued by point 13 of the 2006 guidelines, which consists in adopting as the starting point for the calculation of the fine imposed on an undertaking an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it, the concept of the ‘value of sales’ must therefore be understood as referring to sales on the market concerned by the infringement (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraphs 76, 77 and 81).

31      Therefore, in order to determine the basic amount of the fine to be imposed in the present case, pursuant to point 13 of the 2006 Guidelines, it was appropriate to take account of the value of sales on the market for international air freight forwarding services, since the sales falling within the sphere of the infringements in question were made on that market. The Commission was thus entitled to use the sales on the relevant market as the starting point for calculating the fines.

32      The General Court did not therefore err in holding, in paragraph 123 of that judgment, that ‘the Commission did not exceed the self-imposed limits in point 13 of the 2006 Guidelines by using the values of sales made by the applicants in the provision of freight forwarding services as a package of services and not solely the values of sales made with the AMS, CAF and PSS surcharges’.

Intervention
Interim measures
Order 1.      Dismisses the appeal;

2.      Orders Panalpina World Transport (Holding) Ltd, Panalpina Management AG and Panalpina China Ltd to bear their own costs and to pay those incurred by the European Commission.

Fine changed No
Case duration 20 months
Judge-rapporteur Fernlund
Advocate-general Tanchev
Notes on academic writings Idot, Laurence: Cartels, Europe 2018 avril nº 4 p.29 (FR)

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