EU Court upholds Commission’s second air cargo decision fining Cargolux Airlines

22/04/22

On 30 March 2022, the General Court dismissed Cargolux Airlines’ application (T-334/17) to annul the European Commission’s 2017 decision fining Cargolux for participating in a cartel in the air cargo sector. This was the Commission’s second air cargo decision, which was adopted after the General Court annulled in 2016 the Commission’s original 2010 decision.

The Court found that the Commission had jurisdiction to apply Art. 101 TFEU and Art. 53 of the EEA Agreement to inbound freight services. In particular, the Court rejected the argument that the Commission had misapplied the implementation and qualified effects tests for establishing jurisdiction under public international law. In relation to the qualified effects test, the Court found that the Commission had sufficiently established that it was foreseeable that the conduct at issue would produce a substantial and immediate effect in the EEA.

The Court went on to reject the other pleas raised by the applicant, including the criticisms of the procedure followed in reaching the new decision and the suggestion that the Commission had extended its infringement findings ‘through the back door’ to behaviour that predated the Commission’s relevant competition powers. The Court found that the mere fact that the Commission had referred to contacts predating its acquisition of the relevant powers did not vitiate its decision. It was entitled to rely on such contacts in order to construct an overall impression of the situation and thus corroborate the interpretation of other evidence.

The judgment is available here