Home / ANTITRUST ENFORCEMENT / THE GENERAL COURT UPHOLDS (WITH ONE EXCEPTION) THE FINES IMPOSED BY THE COMMISSION ON COMPANIES INVOLVED IN THE AIR FREIGHT FORWARDING CARTEL

THE GENERAL COURT UPHOLDS (WITH ONE EXCEPTION) THE FINES IMPOSED BY THE COMMISSION ON COMPANIES INVOLVED IN THE AIR FREIGHT FORWARDING CARTEL

Freight forwardingOn February 29, the General Court issued six judgments ruling on the cartel fines imposed by the Commission on several companies in the sector of international air freight forwarding services.

In 2012, the Commission imposed fines amounting to a total of € 169 million on 14 international groups of companies active in the sector of air freight forwarding services for operating, in periods between 2002 and 2007, four price fixing cartels (AT.39462 – Freight forwarding).

The first cartel purported to establish a surcharge on the “new export system” (NES), i.e. a pre-clearance system for exports from the United Kingdom to countries outside the European Economic Area, which was introduced by the United Kingdom authorities in 2002. The second cartel (“advanced manifest system”, or AMS cartel) concerned the agreement on a surcharge for a service introduced by the United States customs, which required providing advance information on goods imported into the United States before they arrived. The third cartel (“currency adjustment factor”, or CAF cartel) was aimed at finding an agreement on a common tariff strategy in order to deal with a risk of a fall in profits owing to the appreciation of the Chinese currency against the United States dollar in 2005. In the fourth cartel (“peak season surcharge”, or PSS cartel), the companies agreed on the introduction and timing of a surcharge to be charged during the peak season transport period in the run up to Christmas.

Deutsche Post (including its subsidiaries DHL and Exel) received full immunity from fines for all four cartels, as it was the first to reveal their existence to the Commission. Some other companies received reductions of fines ranging from 5 to 50 % as a reward for their cooperation with the Commission.

Following the Commission decision, several undertakings brought an application to the General Court, seeking the annulment of the aforementioned decision or, alternatively, a reduction in the amount of the fine.

With the judgments rendered on February 29, the General Court rejected five out of six applications in their entirety (i.e. those filed by, respectively, EGL T-251/12, Kühne + Nagel T-254/12, Schenker T-265/12, Deutsche Bahn T-267/12, Panalpina T-270/12).

As for the action brought by UTi Worldwide and its subsidiaries (T‑264/12), the General Court upheld one of the pleas put forward, which alleged that the Commission erred in law by imposing on UTi Worldwide, as parent company, a higher fine than that imposed on its two subsidiaries.

First, the General Court restated the principle by which, in a situation where the liability of a parent company is purely derivative of that of its subsidiary, the liability of the parent company cannot exceed that of its subsidiary.

It then held that, since the Commission had chosen to apply a method for calculating fines which was favorable to the subsidiaries of a parent company (whereby the infringement periods attributed to the subsidiaries were subject to rounding down, whilst the period attributed to the parent company did not require any rounding down), it should have recognized to UTi Worldwide the consequences of the fine reduction favorable to its subsidiaries which stemmed from the calculation method chosen.

Accordingly, the General Court reduced the overall fine imposed on UTi Worldwide from € 3,07 million to € 2,97 million.

Source: Curia / Natalia Latronico contributed to this report.

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