Case T-265/12 Schenker Ltd v European Commission; Case T-267/12 Deutsche Bahn AG and others v European Commission

The General Court has handed down judgment in these applications for annulment brought by addressees of the Commission’s decision in COMP/39462 - concerning restrictive practices in the air freight forwarding sector.
 
The applicants were freight forwarders who were found by the Commission to be participants in cartels relating to four different surcharges levied in the freight forwarding sector, namely the CAF, AMS, PSS and NES charges. They were fined approximately €35 million for infringements of Article 101 TFEU and Article 53 of the EEA Agreement.
 
The applicants challenged the findings against them on a variety of bases, including alleging that the Commission: (1) acted unlawfully in relying on inadmissible material (including alleged privileged material); (2) lacked jurisdiction to adopt certain of the findings because the practices to which they related were exempt under Regulation No 141; (3) failed to attribute liability to the correct entities in accordance with EU law principles on the attribution of liability to economic successors; (4) erred in its assessment of the fines; (5) erred in the application of the 2006 Leniency Notice; and (6) acted unlawfully in failing to enter settlement talks.
 
The General Court dismissed every plea raised by the applicants, finding in favour of the European Commission on all accounts. The judgments are particularly instructive in relation to the extent of the Commission’s powers to attribute liability for an infringement of Article 101 TFEU to an economic successor of the offending entity, and in relation to the proper construction and operation of the Commission’s leniency procedures.

The full judgments can be read here: http://www.bailii.org/eu/cases/EUECJ/2016/T26512.html and http://www.bailii.org/eu/cases/EUECJ/2016/T26712.html

Brian Kennelly QC and Hanif Mussa acted for the European Commission.