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

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

Tags

About

Picture Kiran Desai

Kiran Desai

Digest Editor

Partner, EU Competition Law Leader, EY Law, Brussels

>> Kiran’s CoRe Blog Case Digests >>

Leave a Reply

Related Posts

08. Mar 2022
Features by Daniel Mandrescu
The DMA and EU competition law: complementing or cannibalizing enforcement? - 2

The DMA and EU competition law: complementing or cannibalizing enforcement?

The proposal of the DMA signals a significant change with respect to the application and enforcement of EU competition policy to online platforms. Despite the clear synergy between the two frameworks, the European Commission insists that the DMA is introduced with the idea of complementing, rather than replacing, the enforcement of EU competition law in the case of online platforms. […]
14. May 2020
Features by Daniel Mandrescu
credit card swiping

Restrictions of competition by object and multi-sided platforms – insights from Budapest Bank

The judgment of the CJEU in Budapest Bank (Case C-228/18) is the most recent case that provides guidance with regard to the application of art. 101 TFEU in the context of multi-sided platforms. The CJEU explicitly confirmed the possibility of finding restrictions of competition by object by such players despite the complexities originating from their multi-sided nature. However, the manner in which […]
06. Apr 2020
Features by Rita Paukste
EURIBOR Cartel: Features of Collusion and Detection of Cartel - skyscraper

EURIBOR Cartel: Features of Collusion and Detection of Cartel

A colleague of mine (kudos for you know who you are) once told me that in his competition law class he has a part called “how to make a good cartel?” A thought-provoking academic exercise in many aspects, indeed. When analyzing cartels in the financial sector this popped in mind to raise other questions – how participants in cartels in […]
25. Mar 2020
Features by David van Wamel
Picture of Elevator

Otis II: A lost opportunity to clear the mist

In Otis II, the Court of Justice of the European Union (‘Court’) reaffirms that any party can claim damages for loss caused by an EU competition law infringement. More specifically, persons not active on the market affected by a cartel, but who provide subsidies to buyers of the products offered on that market, must be able to claim damages for […]
16. Mar 2020
Features by Friso Bostoen
Corona and EU economic law: Antitrust (Articles 101 and 102 TFEU) - Blog 16.3. corona

Corona and EU economic law: Antitrust (Articles 101 and 102 TFEU)

By Friso Bostoen and Liesbet Van Acker As the corona pandemic instils more and more fear in the population, some of its economic effects are immediately noticeable. Two items—hand sanitizer and facemasks—have been in particularly high demand (and short supply). This has driven prices up to a level where one may wonder whether they are abusive in the sense of […]
05. Mar 2020
Features by Tommi Lahtinen
Reverse payment settlements in the European Union after the Generics (UK) judgment – perplexing legal uncertainty - close up 1853400 1920 825x400 1

Reverse payment settlements in the European Union after the Generics (UK) judgment – perplexing legal uncertainty

On January 30th, the Court of Justice (“the Court”) released its judgment in the Generics (UK) case. In a preliminary ruling procedure, the UK Competition Appeal Tribunal asked the Court to provide guidance on how to interpret Article 101 TFEU with regard to patent settlements between pharmaceutical companies. The judgment has considerable legal significance as it represents the very first […]
19. Dec 2019
Case Digests by Kiran Desai
2019:23 Eco-Bat Technologies Ltd and Others v European Commission - brett jordan NIDPm ltVbA unsplash

2019:23 Eco-Bat Technologies Ltd and Others v European Commission

Court Court of Justice Date of ruling 16 January 2019 Case name (short version) Eco-Bat Technologies Ltd and Others v European Commission Case Citation C-312/18 P ECLI:EU:C:2019:23 Key words Appeal — Agreements, decisions and concerted practices — Market for car battery recycling — Decision finding an infringement of Article 101 TFEU and imposing fines — Correcting decision adding the value […]
17. Oct 2019
Features by Rita Paukste
Competition law and public procurement – an easy catch for competition enforcers? - competition law

Competition law and public procurement – an easy catch for competition enforcers?

If you ask what the common recent trends are among EU Member States in competition law enforcement, the answer surprisingly (or not) would be related not to digital economies but to public procurement. Lately national competition authorities had quite a fruitful harvest investigating competition law infringements in public procurement markets. Among them are, for example, the French, Italian, Dutch, Hellenic, […]
26. Jun 2019
Features by Daniel Mandrescu
The return of the MFN clauses – platform ranking as an enforcement mechanism for price parity - glenn carstens peters npxXWgQ33ZQ unsplash

The return of the MFN clauses – platform ranking as an enforcement mechanism for price parity

The MFN cases of the past few years have delivered a series of uncoordinated cases that created a fragmented approach towards MFN clauses. Nowadays it would appear that there is a growing consensus in Europe that wide MFN clauses should be prohibited which, also led major platform like Expedia to abandon these pricing strategies. The recent claim put forward by […]
05. Jun 2019
Features by Rita Paukste
Collusive conduct in financial instruments trading: a look at the issues of dealing via chatrooms - priscilla du preez BjhUu6BpUZA unsplash

Collusive conduct in financial instruments trading: a look at the issues of dealing via chatrooms

Following the benchmark currency rate manipulation scandal, the banking sector has had no chance to restore their reputation. Lately, major EU banks have been having competition law issues because of their traders’ collusive behaviour in the bond and global foreign exchange (FX) markets. Two Statements of Objections concerning bond cartels and collusive conduct by certain traders have been issued recently […]

Subscribe to our newsletter for updates on legal developments, upcoming conferences, workshops, and publications in your areas of interest.

Newsletter: Subscribe now