British Airways v Commission

The Commission found that British Airways (among other airlines) had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating in a cartel in relation to fuel and security surcharges and the commission paid on them for airfreight services. The airlines applied to annul the Commission’s decision inter alia on the basis that the Commission did not have jurisdiction in relation to the airfreight services on inbound routes from third countries into the EEA because competition in relation to those routes only took place in those third countries, where the relevant agreements were implemented.

The General Court dismissed the airline’s applications, holding that the Commission had been right to assert jurisdiction in relation to inbound routes. The airlines appealed to the CJEU. The CJEU has dismissed the appeals.

The appeals represent one of the first considerations by the CJEU of the so-called “qualified effects” test for establishing extraterritorial jurisdiction (established in Case C-413/14 P Intel v Commission) in the context of Article 101 TFEU. The CJEU’s judgment sets a low bar for the establishment of jurisdiction, concluding that evidence of actual effects is not required and that it is sufficient that it is foreseeable that the impugned conduct should be liable to have immediate and substantial effects within the EEA.

The opinion can be read here.

Tom Coates represented British Airways before the CJEU.