Judgment of the General Court (Fourth Chamber, Extended Composition) of 30 March 2022

(a) The alleged inculpatory evidence

103 The alleged inculpatory evidence to which the applicants claim they were not given access all relates to the description and analysis, set out in recitals 976 to 989 and 998 to 1012 of the contested decision, of the legislative framework and the administrative practice applicable to the establishment of carriers’ rates in certain third countries. The applicants refer in that regard, first of all, to the Commission’s direct references to the replies of CPA, British Airways, Cargolux, another carrier and Japan Airlines to the Statement of Objections, to documents that implicitly make reference to those replies and to the undisclosed documents on which the Commission relied even though those replies did not necessarily come from other carriers that were addressees of the Statement of Objections.

104 First of all, as regards the direct references in the contested decision to the replies to the Statement of Objections, it must be noted that, for the most part, they are not mere summaries of an argument developed by an addressee of the Statement of Objections, within the meaning of the case-law referred to in paragraph 95 above.

105 First, that applies to the statements of Japan Airlines and another carrier set out in recitals 1003, 1005 and 1006 of the contested decision, according to which (i) the Japanese authorities did not require, until 2006, any reference to the agreement between the designated carriers as stipulated by the ASA applicable in the context of the submission of applications for surcharge approvals and (ii) there was no obligation to coordinate flights between Japan and the United Kingdom.

106 As the applicants submit, it is apparent from the contested decision that the Commission relied on those statements to support the finding that there was no administrative practice obliging the incriminated carriers to coordinate on the surcharges during the infringement period and thus to support its view that the conduct in Japan fell within the scope of Article 101 TFEU and Article 53 of the EEA Agreement. In the part of the contested decision entitled ‘Analysis of the Japanese regulatory system’, in recitals 1005 and 1006 of the contested decision, the Commission relies on those statements to establish the following two findings. In the first place, the ASAs concluded between Japan and the States party to the EEA Agreement did not in practice oblige carriers to agree on tariffs since, in order to avoid such an obligation, it was sufficient for them to make reference, in their request relating to the FSC, to an alleged agreement within IATA. In the second place, the Japanese authorities imposed no coordination obligation in respect of flights between Japan and the United Kingdom.

107 Secondly, that also applies to the statements of CPA, Cargolux and British Airways referred to in recitals 977 to 979 of the contested decision, in which those three carriers acknowledge that the submission of individual applications for surcharge approval in Hong Kong was possible, in particular for a fixed amount of FSC. It is true that those assertions appear in a section of the contested decision entitled ‘Carriers’ Arguments’. However, as the applicants rightly point out, in recital 987 of the contested decision, in the context of the analysis of the administrative practice in Hong Kong, the Commission states as follows:

‘Other parties dispute the possible existence of a requirement [to discuss tariffs and submit a collective application to the Hong Kong Civil Aviation Department (“the CAD”)] with some arguing that CAD encouraged rather than required concertation.’

108 However, that statement by the Commission can be understood only as referring to the statements of CPA, Cargolux and British Airways that are mentioned in recitals 977 to 979 of the contested decision.

109 Nevertheless, CPA’s statements reproduced in recital 1004 of the contested decision cannot be classified as inculpatory evidence, since it is not apparent from the contested decision that the Commission relied on those statements in order to establish the single and continuous infringement.

110 Next, as regards the evidence that allegedly refers to those replies implicitly, contrary to what the applicants claim, it is not apparent from the passage in recital 1012 of the contested decision stating that ‘it is not claimed that the parties were required to concert on the SSC or commissioning on surcharges’, that the Commission relied on undisclosed inculpatory evidence. By that finding, the Commission merely observes that no evidence attesting to such an obligation was provided in response to the Statement of Objections.

111 Lastly, as regards the undisclosed documents on which the Commission allegedly relied even though they did not necessarily come from other carriers to which the Statement of Objections was addressed, the applicants refer to the documents that were used for the analysis of Japanese legislation and the ASAs applicable in third countries other than Hong Kong and Japan set out in recitals 998 to 1001, 1009, 1010 and 1013 to 1019 of the contested decision.

112 However, those recitals do not refer to any document at all in the investigation file, irrespective of whether produced before or after the Statement of Objections was sent. In those recitals, the Commission merely describes the applicable provisions of Japanese legislation and the ASAs to which the third countries concerned are parties and finds that it has not been established that they require carriers to implement price coordination. The provisions in question are those referred to by some of the carriers to which the Statement of Objections was addressed in their arguments in reply thereto, as is apparent from recitals 1002, 1003 and 1013 of the contested decision.

113 The applicants have failed to explain how the passages in question of the contested decision indicate the existence of one or more undisclosed inculpatory documents on which the Commission relies.

114 Even if, in that regard, the applicants intended to complain that the Commission did not provide them with access to the text of the legal provisions in question, it should be noted that the legal framework applicable in Japan and in the other relevant third countries with regard to surcharges cannot, in itself, constitute incriminating evidence and that, in any event, that information is in principle public and accessible (see, to that effect, judgment of 27 September 2006, Jungbunzlauer v Commission , T‑43/02, EU:T:2006:270, paragraph 354 ). Moreover, paragraph 139 of the Statement of Objections stated that, in Japan, ‘the coordination of the implementation [of the FSC] between [carriers] [was] nowhere compulsory’, and paragraph 1439 contained an analysis of the clauses relating to the joint setting of charges, as the case may be, in an ASA. The applicants were therefore afforded the opportunity, during the administrative procedure, to make known their views on the legal provisions in question.

115 In the light of the foregoing, it must be held that the Commission erred in refusing the applicants access to the passages of the replies to the Statement of Objections referred to in recitals 977 to 979, 1003, 1005 and 1006 of the contested decision and described in paragraphs 105 to 108 above.

(b) The alleged exculpatory evidence

116 In the present case, it must first be noted that it is common ground between the parties that the documents that, according to the applicants, contain the exculpatory evidence were the subject of requests for access, by the applicants, during the administrative procedure.

117 Next, it is important to note that the applicants, to a large extent, merely rely on the fact that some of the incriminated carriers or addressees of the Statement of Objections put forward the same arguments as they did in their replies to the Statement of Objections or in their observations before the Court. Such considerations are not sufficient to establish the existence of exculpatory evidence (see, to that effect, judgment of 12 July 2011, Hitachi and Others v Commission , T‑112/07, EU:T:2011:342, paragraphs 43 and 44 ).

118 Moreover, in so far as the applicants speculate as to the existence of exculpatory documents provided by the other carriers, they do not provide any prima facie evidence to show that such documents would have been useful for the purposes of the present proceedings (see, to that effect, judgment of 27 September 2012, Koninklijke Wegenbouw Stevin v Commission , T‑357/06, EU:T:2012:488, paragraph 164 ). Moreover, upholding the applicants’ claims notwithstanding their general nature, would have the consequence of allowing them to benefit from the greater efforts made and resources invested, as the case may be, by the other carriers, contrary to the case-law referred to in paragraph 99 above.

119 As regards, more specifically, the documents underlying the Commission’s statement about the WOW alliance in its decision of 4 July 2005 in Case COMP/M.3770 – Lufthansa/Swiss, it must be noted that the Commission did not rely on those documents in the procedure leading to the contested decision and that the reference made to that decision in footnote 1386 to the contested decision is, as noted by the Commission, based solely on public information.

120 As regards the evidence alleged to demonstrate the existence of capacity agreements between Lufthansa and the addressees of a number of emails sent by Lufthansa regarding an adjustment of its FSC rates, which would help to support a plausible alternative explanation for those emails, namely the legitimate communication of information by a supplier to its customers, it should be pointed out, first, that the applicants, as noted by the Commission, already raised in their reply to the Statement of Objections the argument that the addressees of the emails in question were customers of Lufthansa, secondly, that they already had, by means of the evidence in the investigation file, a list of the carriers party to a capacity purchase agreement with Lufthansa, as they themselves admitted at the hearing, and, thirdly, that the Commission, in the contested decision, rejected their argument by noting, in recital 797, that the announcements had made the applicants aware that Lufthansa was engaged in negotiations with other carriers. It follows that the applicants have failed to demonstrate that the disclosure of that evidence could have been useful to them in the context of their defence.

121 As regards the evidence adduced by the non-incriminated carriers, the applicants’ claim that that evidence could have been exculpatory for their defence, since the non-incriminated carriers were involved in contacts at issue which were relied on against the applicants in the contested decision, is based on extremely general conjecture. Given its general nature, the applicants’ hypothesis cannot constitute a sufficiently precise indication of the existence of exculpatory evidence in the replies of those carriers (see, to that effect, judgment of 27 September 2012, Koninklijke Wegenbouw Stevin v Commission , T‑357/06, EU:T:2012:488, paragraph 164 ).

122 The same applies to the applicants’ argument that, since their employees only participated ‘in a minor fraction’ of the conduct at issue, the evidence relating to the majority of that conduct is in the hands of the other carriers involved.

123 Lastly, it is to no avail that the applicants rely on the judgment of 29 June 1995, Solvay v Commission (T‑30/91, EU:T:1995:115 ), in which the Court stated that it was not for the Commission to decide on its own whether the documents seized in the investigation were exculpatory in relation to the undertakings concerned, since that case concerned documents that were part of the investigation file proper. It is clear from the case-law of the Court that the principle that it cannot be for the Commission alone to determine the documents of use in the defence of the undertaking concerned applies only to documents in the Commission’s file and cannot apply to the replies given by other parties concerned to the statement of objections communicated by the Commission (judgment of 16 June 2011, Heineken Nederland and Heineken v Commission , T‑240/07, EU:T:2011:284, paragraph 254 ).

(c) Conclusion

124 It must be concluded that the Commission was wrong to refuse the applicants access to the passages in the replies to the Statement of Objections referred to in recitals 977 to 979, 1003, 1005 and 1006 of the contested decision. In accordance with the case-law cited in paragraph 96 above, it will be assessed below (see paragraph 550 below), in the context of the examination of the merits of the Commission’s assessments regarding the applicants’ participation in the single and continuous infringement, whether the result at which the Commission arrived would have been different if those passages had to be disallowed as inculpatory evidence.

125 As regards the applicants’ requests for the adoption of measures of organisation of procedure or measures of inquiry in order to obtain the production of the replies, and the annexes thereto, of the addressees of the Statement of Objections and the observations and documents submitted before the Court by the other carriers in their respective actions against the Decision of 9 November 2010, the applicants claim that the production of such documents would enable them to establish that those documents would have been useful for their defence and, therefore, that the non-disclosure thereof constituted an infringement of their rights.

126 In that regard, it is sufficient to note that the Court has been able to rule on the merits of the first plea on the basis of the evidence submitted before it, and that it is the sole judge of whether there is any need for the information available to it concerning the cases before it to be supplemented by taking the measures requested in the present case, which cannot be intended to make up for the applicants’ omission to adduce evidence (see, to that effect, judgment of 16 July 2009, SELEX Sistemi Integrati v Commission , C‑481/07 P, not published, EU:C:2009:461, paragraph 44 ). It follows that the applicants’ requests must be rejected, both in so far as they relate to the replies to the Statement of Objections and in so far as they relate to the observations submitted before the Court in the context of actions against the Decision of 9 November 2010.

(a) The first part of the second plea, alleging infringement of the right to be heard and a lack of jurisdiction on the part of the Commission to apply Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes

128 The applicants submit, in essence, that the Commission infringed their right to be heard and exceeded the limits of its jurisdiction by finding and penalising an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes, which the Commission disputes.

129 It should be recalled that, as regards conduct adopted outside the territory of the EEA, the Commission’s jurisdiction under public international law to find and penalise an infringement of Article 101 TFEU or Article 53 of the EEA Agreement may be established on the basis of the implementation test or the qualified effects test (see, to that effect, judgments of 6 September 2017, Intel v Commission , C‑413/14 P, EU:C:2017:632, paragraphs 40 to 47 , and of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission , T‑441/14, EU:T:2018:453, paragraphs 95 to 97 ).

130 Those tests are alternative and not cumulative (judgment of 12 July 2018, Brugg Kabel and Kabelwerke Brugg v Commission , T‑441/14, EU:T:2018:453, paragraph 98 ; see also, to that effect, judgment of 6 September 2017, Intel v Commission , C‑413/14 P, EU:C:2017:632, paragraphs 62 to 64 ).

131 In recitals 1043 to 1046 of the contested decision, the Commission relied on both the implementation test and the qualified effects test in order to establish its jurisdiction under public international law to find and penalise an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on inbound routes.

132 Since the applicants allege an error in the application of each of those two tests, the Court considers it appropriate to examine, first of all, whether the Commission was entitled to avail itself of the qualified effects test. To that end, the Court will consider whether the applicants are justified, first, in claiming infringement of their right to be heard in relation to the application of that test and, secondly, in claiming that the Commission erred in its application. In accordance with the case-law cited in paragraph 130 above, it is only where at least one of those two complaints is well founded that it will be necessary to ascertain whether the Commission was entitled to rely on the implementation test.

(b) The second part of the second plea in law, relating to non-EU EEA-Switzerland routes

238 The applicants claim that Article 11(2) of the EC-Switzerland Air Transport Agreement reserves to the Swiss authorities the jurisdiction to find and penalise an infringement of the competition rules on non-EU EEA-Switzerland routes.

239 In Article 1(3) of the contested decision, the Commission found an infringement of Article 53 of the EEA Agreement on non-EU EEA-third country routes. Given that the Swiss Confederation is not a party to the EEA Agreement, it is necessarily a ‘third country’ within the meaning of that article. Article 1(3) of the operative part of the contested decision is therefore vitiated by an illegality consisting of an infringement of Article 11(2) of the EC-Switzerland Air Transport Agreement.

240 The Commission disputes the applicants’ line of argument.

241 It is necessary to determine whether, as the applicants maintain, the Commission found an infringement of Article 53 of the EEA Agreement on non-EU EEA-Switzerland routes in Article 1(3) of the contested decision and, if so, whether the Commission exceeded the limits of the jurisdiction conferred on it under the EC-Switzerland Air Transport Agreement.

242 It should be noted in that regard that the principle of effective judicial protection is a general principle of EU law, which is now set out in Article 47 of the Charter. That principle, which corresponds, in EU law, to Article 6(1) ECHR, requires that the operative part of a decision by which the Commission finds infringements of the competition rules must be particularly clear and precise and that the undertakings held liable and penalised must be in a position to understand and to contest the imputation of that liability and the imposition of those penalties, as set out in the wording of that operative part (see judgment of 16 December 2015, Martinair Holland v Commission , T‑67/11, EU:T:2015:984, paragraph 31 and the case-law cited).

243 It is in the operative part of its decisions that the Commission must indicate the nature and extent of the infringements which it penalises. As regards in particular the scope and nature of the infringements penalised, it is thus in principle the operative part, and not the statement of reasons, which is important. Only where there is a lack of clarity in the terms used in the operative part should reference be made, for the purposes of interpretation, to the statement of reasons contained in a decision (see judgment of 16 December 2015, Martinair Holland v Commission , T‑67/11, EU:T:2015:984, paragraph 32 and the case-law cited).

244 In Article 1(3) of the contested decision, the Commission found that the applicants had ‘infringed Article 53 of the EEA Agreement as regards routes between airports in countries that are Contracting Parties of the EEA Agreement but not Member States and airports in third countries’ from 19 May 2005 to 14 February 2006. The Commission neither expressly included non-EU EEA-Switzerland routes amongst those routes, nor expressly excluded them.

245 It is therefore necessary to ascertain whether the Swiss Confederation is amongst the ‘third countries’ referred to in Article 1(3) of the contested decision.

246 In that regard, it should be noted that Article 1(3) of the contested decision distinguishes between ‘countries that are Contracting Parties of the EEA Agreement but not Member States’ and third countries. It is true that, as the applicants observe, the Swiss Confederation is not party to the EEA Agreement and therefore numbers amongst the third countries to that agreement.

247 It should, however, be recalled that, given the requirements of unity and consistency in the EU legal order, the same words used in the same act must be assumed to have the same meaning.

248 In Article 1(2) of the contested decision, the Commission found an infringement of Article 101 TFEU as regards ‘routes between airports within the European Union and airports outside the EEA’. That concept does not include airports within the Swiss Confederation, even though the latter is not party to the EEA Agreement and its airports should formally be regarded as being ‘outside the EEA’ or, in other words, in a third country to that agreement. Those airports are the subject of Article 1(4) of the contested decision, which finds an infringement of Article 8 of the EC-Switzerland Air Transport Agreement, as regards ‘routes between airports within the European Union and airports in Switzerland’.

249 In accordance with the principle recalled in paragraph 247 above, it must therefore be assumed that the phrase ‘airports in third countries’ employed in Article 1(3) of the contested decision has the same meaning as the phrase ‘airports outside the EEA’ employed in Article 1(2) and, therefore, excludes airports in Switzerland.

250 In the absence of any indication in the operative part of the contested decision that the Commission intended to give a different meaning to the concept of ‘third countries’ referred to in Article 1(3) of the contested decision, it must be held that the concept of ‘third countries’ referred to in Article 1(3) thereof excludes the Swiss Confederation.

251 It therefore cannot be held that the Commission found the applicants liable for an infringement of Article 53 of the EEA Agreement as regards non-EU EEA-Switzerland routes in Article 1(3) of the contested decision.

252 Since the operative part of the contested decision leaves no room for doubt, it is therefore solely for the sake of completeness that the Court adds that the grounds of the contested decision do not contradict that finding.

253 In recital 1146 of the contested decision, the Commission stated that the ‘anti-competitive arrangements’ which it had described infringed Article 101 TFEU from 1 May 2004 to 14 February 2006‘as regards air transport between airports within the [European Union] and airports outside the EEA’. In the relevant footnote (No 1514), the Commission specified the following: ‘For the purpose of this Decision, “airports outside the EEA” include airports in countries other than [the Swiss Confederation] and in Contracting Parties to the EEA Agreement.’

254 It is true that, where it described the scope of the infringement of Article 53 of the EEA Agreement in recital 1146 of the contested decision, the Commission did not refer to the concept of ‘airports outside the EEA’ but rather to ‘airports in third countries’. It cannot, however, be inferred therefrom that the Commission intended to give a different meaning to the concept of ‘airports outside the EEA’ for the purposes of applying Article 101 TFEU and to that of ‘airports in third countries’ for the purposes of applying Article 53 of the EEA Agreement. On the contrary, the Commission used those two phrases interchangeably in the contested decision. Thus, in recital 824 of the contested decision, the Commission stated that it ‘[would] not apply Article 101 TFEU to anti-competitive agreements and practices concerning air transport between [European Union] airports and airports in third countries that took place before 1 May 2004’. Similarly, in recital 1222 of that decision, as regards the end of SAS Consortium’s participation in the single and continuous infringement, the Commission referred to its jurisdiction on the basis of those provisions ‘on routes between the [European Union] and third countries and routes between Iceland, Norway and Liechtenstein and countries outside the EEA’.

255 The grounds of the contested decision therefore confirm that the concepts of ‘airports in third countries’ and ‘airports outside the EEA’ have the same meaning. In accordance with the definition set out in footnote 1514, it must therefore be held that both concepts exclude airports in Switzerland.

256 Contrary to the applicants’ arguments, recitals 1194 and 1241 of the contested decision do not advocate another outcome. Admittedly, the Commission referred, in recital 1194 of that decision, to ‘routes between the EEA and third countries, except routes between the [European Union] and Switzerland’. Similarly, in recital 1241 of that decision, in the context of the ‘determination of the value of sales on third country routes’, the Commission reduced by 50% the basic amount for ‘EEA-third country routes, except routes between the [European Union] and Switzerland where [it] is acting under the [EC-Switzerland Air Transport Agreement]’. It could be considered, as noted in essence by the applicants, that if the Commission took care to insert in those recitals the words ‘with the exception of routes between the [European] Union and Switzerland’, it is because it took the view that the Swiss Confederation fell within the scope of the concept of ‘third country’ in so far as the EEA-third country routes were concerned.

257 The Commission also acknowledged that it had included in the value of sales an amount of EUR 262 084 in respect of sales of freight services made by the applicants in 2005 on non-EU EEA-Switzerland routes. According to the Commission, the reason for this is that it ‘unfortunately’ did not exclude that amount from the figures provided to it by the applicants.

258 It must nevertheless be found, as the Commission did, that those elements relate exclusively to the revenues to be taken into account for the purposes of calculating the basic amount of the fine, and not to the determination of the geographical boundaries of the single and continuous infringement at issue here.

259 The second part of the plea and, consequently, the present plea must be rejected.

(a) The first part of the plea, alleging a number of illegalities in the finding of a single and continuous infringement of a worldwide nature

262 In the context of the present part of the plea, the applicants claim that the Commission committed a number of illegalities in the finding of a single and continuous infringement of a worldwide nature. They raise three complaints in support of the present part of the plea. Those complaints allege, first, breach of the obligation to state reasons and erroneous findings as regards the worldwide nature of the single and continuous infringement, secondly, erroneous findings regarding the single nature of the infringement at issue, outside the ‘core group’ of the cartel at issue, and, thirdly, erroneous findings as regards the continuous nature of the infringement.

(b) The second part of the plea, alleging errors in the assessment of the conduct relating to the bilateral alliance with Lufthansa

330 In the context of the present part, the applicants rely on Commission Decision 96/180/EC of 16 January 1996 relating to a proceeding under Article [101 TFEU] and Article 53 of the EEA Agreement (IV/35.545 – LH/SAS) (OJ 1996 L 54, p. 28; ‘the 1996 exemption’). That decision granted an exemption from the prohibition laid down in Article 101(1) TFEU to the general alliance agreement by which Lufthansa and the applicants agreed on a worldwide joint pricing policy and the widest possible integration of their freight services. The applicants maintain that, in the light of that exemption, the Commission ought to have excluded from the body of evidence relied on against them the bilateral contacts they had with Lufthansa referred to in recitals 223, 597, 618 to 620 and 673 of the contested decision.

331 The Commission disputes the applicants’ line of argument.

332 As is apparent both from recitals 791 and 792 of the contested decision and from the Commission’s written pleadings before the Court, the bilateral contacts between Lufthansa and the applicants were not relied on against the applicants for the purposes of establishing their participation in the single and continuous infringement in so far as they were covered by the 1996 exemption. As is apparent from recitals 24 and 28 of that exemption, the alliance between the applicants and Lufthansa was broad in scope and ‘[the parties intended] to establish worldwide an integrated transport system involving … a joint pricing policy’, in particular for freight services. It is, moreover, common ground between the parties that the bilateral contacts between Lufthansa and the applicants concerning the FSC and SSC were within the scope of the exempt alliance.

333 For the purpose of addressing the present part of the plea, it is therefore necessary to examine whether, as is apparent from footnotes 1251 and 1258 to the contested decision, the contacts referred to in recitals 223, 618 and 620 of the contested decision contribute to establishing conduct that exceeds the scope of the 1996 exemption by characterising the applicants’ conduct as participation in multilateral coordination within the WOW alliance or, as regards recital 673, in anticompetitive contacts with competitors other than Lufthansa. By contrast, in so far as the Commission does not rely either on the contact of 2 October 2001, referred to in recital 597 of the contested decision, or on that of 13 January 2003, referred to in recital 619 of that decision, in order to establish that the applicants participated in the single and continuous infringement, the applicants’ arguments in that regard must be rejected as ineffective and the analysis must be limited to the contacts referred to in recitals 223, 618, 620 and 673 of the contested decision.

334 In the first place, recital 223 of the contested decision refers to an internal Lufthansa email exchange of 3 and 11 April 2002. In that exchange, Lufthansa refers, first, to SAC’s position against the reintroduction of the FSC and, secondly, to the comparatively cooperative attitude of the applicants. The Commission takes the view, in recital 791 of the contested decision, that that evidence helps to support the finding that the applicants participated in coordination within the WOW alliance as regards the FSC.

335 In that regard, it should be pointed out, as noted by the applicants, that it is not apparent from the email exchange in question that they had been in contact with SAC in relation to the FSC. Furthermore, it cannot be inferred, as the Commission does in its reply to the written questions put by the Court, that Lufthansa, in comparing the cooperation of the applicants and SAC, both of which are indeed parties to the WOW alliance, was necessarily referring to the cooperation of the applicants within the framework of that alliance rather than within the framework of the alliance covered by the 1996 exemption.

336 Contrary to what the Commission also appears to submit in its reply to the Court’s written questions, the decision of a large number of carriers, including the applicants and Lufthansa, to reintroduce the FSC in April 2002 (recitals 209 and 210 of the contested decision) is not such as to lead to an interpretation of the email exchange that is different from that set out in paragraph 335 above. First, the applicants are not among the carriers referred to in recitals 209 and 210 of the contested decision as having taken part in a discussion regarding the FSC and, in particular, regarding its reintroduction at the beginning of 2002. Secondly, it cannot be inferred from the fact that the applicants also reintroduced the FSC in April 2002 that immediately before that time the applicants had contacts with Lufthansa which went beyond the scope of the 1996 exemption, in particular with SAC in the context of the WOW alliance. It should also be noted that the Commission does not rely, in the contested decision, on the evidence set out in recitals 209 and 210 for the purposes of establishing the applicants’ participation in the single and continuous infringement.

337 In the light of the foregoing, it must be concluded that the evidence set out in recital 223 of the contested decision does not establish the applicants’ participation in the coordination regarding the FSC within the WOW alliance, but rather merely supports the existence of contacts between the latter and Lufthansa concerning the FSC. In view of the nature of those contacts and the application, at the material time, of the 1996 exemption, that evidence must be regarded as being devoid of any probative value.

338 In the second place, recitals 618 and 620 of the contested decision refer, in particular, to a number of internal Lufthansa emails sent between the end of November 2002 and the beginning of March 2003, concerning the SSC level applicable in Hong Kong. The Commission takes the view, in recital 792 of the contested decision, that that evidence contributes to establishing that the applicants coordinated the SSC level with the members of the WOW alliance. The applicants dispute the Commission’s findings concerning two emails, sent on 5 December 2002 and 5 March 2003.

339 The first email, dated 5 December 2002, was sent by Lufthansa’s manager in Hong Kong and reported that, at a recent meeting of the CSC of the BAR, most of the carriers stated that they would follow CPA and join a request for authorisation to reduce the SSC level. That manager then asked her contact to ‘talk on his level in particular to [the applicants], [AF] and [Japan Airlines] [to ask] if they would change their mind and follow [Lufthansa]’s example of not lowering the [SSC]’ and ‘for his support in persuading [SAC] and [KLM] as both [carriers] had not yet decided whether to change their SSC’, suggesting to him that this could be done ‘in the framework of the following week’s WOW [alliance] meeting’ (see recital 618).

340 It is apparent from that email that the applicants participated in the meeting of the CSC of the BAR in question and that during that meeting they informed the other carriers of their position with regard to the proposed adjustment of the SSC level, which, moreover, the applicants do not dispute before the Court. Accordingly, that document contributes to establishing that the applicants were involved in coordinating the setting of the SSC level in Hong Kong with carriers other than Lufthansa, in the context of the CSC of the BAR. In that context, Lufthansa’s suggestion, made in that same email, to address the issue of the SSC level in Hong Kong in the context of a forthcoming meeting of the WOW alliance must be understood, beyond its clear wording, in the light of the multilateral contacts that took place on that issue during the same period and in which both Lufthansa and the applicants took part. It follows that the Commission did not err in finding, in recital 792 of the contested decision, that that email supported the existence of coordination in relation to the SSC level between members of the WOW alliance.

341 The applicants rightly counter that there is no evidence that the WOW alliance meeting on that subject actually took place or even that a proposal to that effect was made by Lufthansa to the other members of the alliance. Nevertheless, that cannot prevent the Commission from relying on the email in question as incriminating evidence in the context of a larger body of evidence. The fact that Lufthansa intended to discuss that matter at a meeting of the WOW alliance is in itself an indication that the matter of the SSC level was being discussed between the members of that alliance (see, to that effect, judgment of 29 June 2012, GDF Suez v Commission , T‑370/09, EU:T:2012:333, paragraph 226 ).

342 The second email, dated 5 March 2003, was an internal Lufthansa email sent by the manager in Hong Kong, informing her interlocutor that ‘his efforts regarding the SSC with the WOW [alliance] partners’ had been fruitful, referring to the latest information received from the applicants and SAC in that regard (recital 620 of the contested decision). That manager stated that the applicants had obtained the agreement of the Hong Kong authorities and that the SSC would be applied from 14 March 2003.

343 It is apparent from that document that Lufthansa contacted SAC and the applicants concerning the SSC applicable in Hong Kong and that it intended for those contacts to come under the WOW alliance.

344 It must, admittedly, be noted that the concrete details of that contact are not specified, in particular whether or not it was multilateral in nature. However, it is settled case-law that, while the Commission must produce precise and consistent evidence in order to establish an infringement, it is not necessary for every item of evidence produced by it to satisfy those criteria in relation to every aspect of the infringement. It follows that, even though the email in question does not in itself prove that the applicants were involved in multilateral contact with SAC and Lufthansa in the context of the WOW alliance, it is nevertheless important, in accordance with settled case-law (see judgment of 1 July 2010, Knauf Gips v Commission , C‑407/08 P, EU:C:2010:389, paragraph 47 and the case-law cited), to examine in the context of the tenth part of the present plea whether, taken in conjunction with other evidence, that email was capable of constituting a body of evidence which allowed the Commission to make a conclusion to that effect.

345 In the third place, recital 673 of the contested decision refers to an internal email from an employee of Lufthansa’s Tokyo office dated 30 October 2001 in which it is lamented that Lufthansa had ‘missed the train’, because it had failed to take the lead by filing with the Japanese authorities, in due time, an application concerning the SSC. As a consequence, the ‘foreign airline alliance [for setting the SSC at] Euro 0.10-0.15 [per kilo]’ had ‘withered away’ and, in the meantime, ‘European heavyweights’, namely AF, KLM, British Airways and the applicants had all filed an application for 500 to 600 Japanese yen per airway bill. That recital goes on to state that the addressee of that email forwarded it internally, commenting that he remained in favour of Lufthansa submitting an application for SSC at EUR 0.15 per kilo and that he was ‘sure that the other European carriers [would] follow, when we signal that we will lead’.

346 Contrary to the applicants’ submission, those items of evidence do not merely refer to the applications filed by other carriers with the Japanese authorities and show Lufthansa’s desire to deviate from the amount of SSC requested, inter alia, by the applicants. The first email refers to an attempt at coordination between ‘foreign airlines’ with a view to agreeing on a certain amount of SSC and implicitly makes the link between the failure of that coordination and the filing, by a number of European carriers, including the applicants, of an application for another amount of SSC. The second email reveals Lufthansa’s intention to advise those European carriers that it was going to take the lead by filing an application in line with the initial coordination aim. Accordingly, the evidence set out in recital 673 of the contested decision contributes to establishing the existence of anticompetitive contacts between the applicants and carriers other than Lufthansa.

347 In the light of the foregoing, first, it must be concluded that the evidence set out in recital 223 of the contested decision establishes only the existence of contacts between the applicants and Lufthansa concerning the FSC and, consequently, for the reasons set out in paragraph 337 above, it must be excluded from the body of evidence which the applicants contest as a whole in the tenth part of the present plea. Secondly, in so far as the email referred to in recital 620 of that decision does not establish, in itself, that the applicants were involved in multilateral contact with SAC and Lufthansa in the context of the WOW alliance, it will be apposite, in accordance with the case-law cited in paragraph 344 above, to examine in the context of the tenth part of the present plea whether, together with other evidence, including that described in recitals 618 and 673 of that decision, it may nevertheless be included in a body of evidence rightly enabling the Commission to conclude that the applicants participated in the element of the single and continuous infringement.

(c) The third part of the plea, alleging errors in the assessment of the email exchange of December 1999 in the context of the Star Cargo alliance

348 The applicants claim that the Commission was wrong to include the email exchange of 13 and 14 December 1999 between the carriers of the Star Cargo alliance, namely the applicants, Lufthansa, three other carriers and Air Canada, in the body of evidence purported to establish the applicants’ participation in, or awareness of, the single and continuous infringement.

349 First, the applicants submit that a contact relied on to establish the beginning of their participation in the single and continuous infringement should necessarily establish, in itself, the existence of an infringement and that the Commission was wrong to consider, in recital 921 of the contested decision, that the exchange in question must be assessed as part of an overall assessment of the body of evidence.

350 Secondly, they state that the exchange in question is covered by the 1996 exemption, since the single and continuous infringement relates only, for that period, to intra-EEA routes and the applicants and Lufthansa were the only carriers in the alliance to serve such routes. Moreover, the email exchange in question is also justified, according to the applicants, by the Star Cargo alliance and, in any event, is covered by the block exemption provided for by Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ 1987 L 374, p. 1).

351 Thirdly, they maintain that that exchange presents no objective link with the single and continuous infringement, as is apparent from the context of those contacts, namely the IATA resolution seeking to establish an FSC mechanism, the isolated nature of the exchange in question viewed in the context of an alliance that was abandoned shortly afterwards and the fact that the applicants and Lufthansa were the only carriers involved in that exchange against whom that exchange was relied on in the contested decision. The applicants add that the SAS Cargo employee involved in the exchange in question did not take part in any other contact at issue. Lastly, the applicants emphasise that the exchange in question reveals no more than an agreement with a carrier not to introduce an FSC, which, moreover, they did not comply with, since they followed Lufthansa’s position that was communicated to them subsequently.

352 The Commission disputes the applicants’ line of argument.

353 As a preliminary point, it should be noted that, in the context of the present part of the plea, the applicants do not merely dispute the probative value of the email exchange in question. They seek to call into question, more broadly, the date found by the Commission in recital 1148 of the contested decision to be the beginning of their participation in the single and continuous infringement, which is concomitant with the date on which that email exchange began, namely 13 December 1999.

354 In that regard, it must be borne in mind that, as is apparent from paragraph 344 above, in order to establish that there has been an infringement of Article 101(1) TFEU, the Commission must produce firm, precise and consistent evidence. However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by that institution, viewed as a whole, meets that requirement (see, to that effect, judgment of 1 July 2010, Knauf Gips v Commission , C‑407/08 P, EU:C:2010:389, paragraph 47 ). Contrary to the applicants’ submission, those principles also apply to the determination of the beginning of their participation in the single and continuous infringement (see, to that effect, judgments of 21 May 2014, Toshiba v Commission , T‑519/09, not published, EU:T:2014:263, paragraphs 175 to 179 , and of 12 December 2014, Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission , T‑544/08, not published, EU:T:2014:1075, paragraphs 166 to 179 ).

355 In the present case, the exchange in question, cited in recital 135 of the contested decision, began with an email from the applicants to Lufthansa, three other carriers and Air Canada. In that email, the applicants asked them, while expressing their own uncertainty in that regard, whether they intended to introduce an FSC in view of the fact that the price of fuel had exceeded the trigger threshold set by IATA in a draft resolution seeking to introduce an FSC. In response, a carrier agreed with the applicants, while Lufthansa stated as follows:

‘we are also reluctant to take the initiative this time. If other, big competitors of ours were to go for it, we would follow, but in a different and less centralised approach.’

356 It can be inferred from that exchange that the applicants took the initiative to contact a number of carriers, in a multilateral context, in order to gauge whether or not they intended to introduce an FSC. It is also apparent that the replies of the carrier at issue and Lufthansa informed the applicants and the other addressees of their intentions with regard to the introduction of an FSC. Moreover, the applicants do not dispute that, as is apparent from the contested decision, that contact took place at the head-office level of the carriers involved.

357 It should also be noted that, in the two months following that initial contact, a number of other contacts involving the applicants, both at head-office level and local level, and showing a willingness to coordinate the FSC in a multilateral context, took place in Finland, Switzerland and Singapore. Those contacts are referred to in recitals 144 to 146 of the contested decision and have been established by evidence whose probative value cannot be denied (see paragraphs 438 to 467, 567 to 594 and 602 to 606 below). Those contacts involved both incriminated carriers other than those involved in the exchange of 13 and 14 December 1999 as well as Lufthansa (recitals 145 and 146 of the contested decision) and Air Canada (recital 145 of the contested decision).

358 It follows that the Commission did not err in finding that the email exchange in question contributed to establishing the applicants’ participation in the single and continuous infringement or, consequently, by taking 13 December 1999 as the starting date of their participation.

359 None of the arguments put forward by the applicants is capable of calling that conclusion into question.

360 First, the factual context relied on by the applicants and recalled in paragraph 351 above does not call into question the nature and purpose of the contacts that took place via the email exchange in question, attesting to an intention on the part of the parties to the exchange to act in concert, at head-office level, regarding the introduction of an FSC. In particular, as regards the fact that the applicants’ employee involved in the exchange in question did not take part in any other anticompetitive contacts, it should be noted that it is not necessary for the natural persons involved in the various instances of conduct at issue to be the same for there to be a finding of a single and continuous infringement.

361 Furthermore, it is apparent from the evidence referred to in paragraph 357 above that, almost simultaneously with the email exchange in question, the applicants were involved in a series of contacts pursuing the same aim with other carriers, in addition to Air Canada and Lufthansa, which had also participated in that email exchange. In those circumstances, and contrary to the applicants’ submission, it is not probable that that email exchange demonstrates a desire to act in concert that is limited, in scope, to the Star Cargo alliance.

362 Furthermore, as regards the IATA draft resolution, the applicants acknowledge that it was not applicable on the date of the email exchange in question. Consequently, the refusal of the competent authorities to approve it, albeit subsequently, is irrelevant.

363 Lastly, as regards the alleged lack of effects, on the applicants’ conduct, of the concertation implemented in the context of the email exchange in question, it should be noted that the absence of actual effects on the conduct of the undertaking concerned is not, in itself, sufficient to preclude a finding that that conduct forms part of a single and continuous infringement. It should also be noted that the disclosure of sensitive information, such as that referred to in recitals 144 and 584 of the contested decision, removes uncertainty as to the future conduct of a competitor and thus directly or indirectly influences the strategy of the recipient of the information (see, to that effect, judgment of 24 March 2011, Comap v Commission , T‑377/06, EU:T:2011:108, paragraph 70 and the case-law cited). Furthermore, it must be observed that, when an undertaking receives such information, without publicly distancing itself from the initiative in question or reporting it to the administrative authorities, it encourages the continuation of the infringement and compromises its discovery (judgment of 17 May 2013, Trelleborg Industrie and Trelleborg v Commission , T‑147/09 and T‑148/09, EU:T:2013:259, paragraph 68 ).

364 Secondly, the email exchange in question is not covered by either the 1996 exemption or the block exemption provided for in Regulation No 3975/87.

365 As a preliminary point, it must be borne in mind that, having regard to the general principle of the prohibition on cartels laid down in Article 101(1) TFEU, provisions derogating therefrom, such as those in the 1996 exemption or in Regulation No 3975/87, cannot be interpreted widely or so as to extend the effects of the acts containing them further than is necessary for the protection of the interests that they are intended to safeguard (see, to that effect, judgment of 22 April 1993, Peugeot v Commission , T‑9/92, EU:T:1993:38, paragraph 37 ).

366 As regards, first of all, the application of the 1996 exemption, it must be observed that the applicants have failed to explain how the attempt to coordinate the FSC between six carriers, as attested by the email exchange in question, came within the scope of the alliance covered by the 1996 exemption and its objective of establishing, worldwide, an integrated transport system between the applicants and Lufthansa (see paragraph 332 above). In that regard, the claim that the Star Cargo alliance is merely an extension of the alliance covered by the 1996 exemption is not capable, even if it were to be established, of extending the 1996 exemption to cover the Star Cargo alliance, since that would require a wide interpretation of that exemption, which would be contrary to the case-law referred to in the preceding paragraph.

367 As regards the alternative argument to the effect that the Commission’s decision-making practice with respect to alliances between the applicants and Lufthansa, as well as between both of them and another carrier, shows that it considered, at the time, that the other parties to the email exchange in question, established outside the EEA, were neither actual nor potential competitors on intra-EEA routes, it should be noted that the challenge to the worldwide nature of the cartel at issue and the competitive relationship between the carriers has already been examined and rejected in the context of the first complaint of the first part of the present plea (see paragraphs 279 to 293 above).

368 If, by referring to the Commission’s decision-making practice in relation to them, the applicants seek to rely on the principle of the protection of legitimate expectations, it is for them to establish that they were given precise, unconditional and consistent assurances originating from authorised and reliable sources such as to give rise to justified expectations on their part (see, to that effect, judgment of 5 March 2019, Eesti Pagar , C‑349/17, EU:C:2019:172, paragraph 97 ). The fact that the Commission did not adopt an individual exemption decision following the initiation of a procedure on the basis of Regulation No 3975/87 with respect to the alliance between the applicants, Lufthansa and another carrier is not capable of constituting, contrary to what is suggested by the applicants, a firm and definitive position on the inapplicability of Article 101(1) TFEU, as regards the impact of that alliance on intra-EEA routes, nor, a fortiori, on the absence of a competitive relationship between the applicants and Lufthansa, on the one hand, and the carrier at issue, on the other. Moreover, and in any event, since a number of members of the Star Cargo alliance were not members of the alliance between the applicants, Lufthansa and the carrier at issue, it must be held that the Commission had not been called upon to take a decision, in the procedure initiated on the basis of Regulation No 3975/87, on the facts relating to the email exchange in question.

369 As regards, next, the application of the block exemption provided for by Regulation No 3975/87, the applicants submit that the email exchange in question is covered by point (i) of the annex referred to in Article 2(1) of Regulation No 3975/87 because it merely concerned ‘price structure’.

370 Article 2(1) of Regulation No 3975/87 provides:

‘The prohibition laid down in Article [101(1) TFEU] shall not apply to the agreements, decisions and concerted practices listed in the Annex, in so far as their sole object and effect is to achieve technical improvements or cooperation. This list is not exhaustive.’

371 Point (i) of the annex referred to in that article is worded as follows:

‘the establishment or application of uniform rules concerning the structure and the conditions governing the application of transport tariffs, provided that such rules do not directly or indirectly fix transport fares and conditions;’

372 It is clear from those provisions that the exemption provided for therein is limited to conduct which has the sole object or effect of achieving technical improvements or cooperation. The fact that conduct is referred to in the annex to Regulation No 3975/87 is not therefore sufficient to derogate from the principle of the prohibition on cartels.

373 In the present case, it should be noted that the applicants do not invoke any object or effect consisting in achieving technical improvements or cooperation in connection with the contacts that took place via the email exchange in question. Furthermore, the applicants have not adduced any evidence intended to establish that such an object or effect was exclusively pursued.

374 Moreover, it is apparent from paragraph 355 above that, by their email of 13 December 1999, the applicants sought to gauge the intentions of the other carriers regarding whether they might introduce an FSC. It follows that, although that contact shows an intention to act in concert with other carriers regarding the introduction of the FSC, it does not, nevertheless, amount to an attempt to establish uniform rules concerning the structure and the conditions governing the application of freight tariffs, within the meaning of point (i) of the annex referred to in Article 2(1) of Regulation No 3975/87.

375 In the light of the foregoing, the applicants’ claim regarding the benefit of the block exemption provided for in Article 2(1) of Regulation No 3975/87 must be rejected.

376 Thirdly, it has not been established that the email exchange in question could be justified by the scope of the Star Cargo alliance.

377 The applicants have failed to adduce prima facie evidence that the actual operation of that alliance involved its members coordinating with regard to the FSC. The applicants themselves noted that, although they attempted, together with Lufthansa, to form the Star Cargo alliance, their attempts failed in 2000. Although a reciprocal declaration of intentions between alliance members was indeed adopted in April 1999, as is apparent from the applicants’ reply to the Statement of Objections, the applicants do not adduce any evidence of a subsequent start of operational implementation that would have justified the email exchange in question.

378 In the light of the foregoing, it must be held that the Commission did not err in finding that the email exchange in question contributed to establishing the applicants’ participation in the single and continuous infringement and in determining, on the basis of that exchange, the starting date of the applicants’ participation in that infringement.

379 Accordingly, the present part of the plea must be rejected.

(d) The fourth part of the plea, alleging errors in the assessment of the conduct relating to the WOW alliance

380 The present part alleges errors in the assessment of the conduct relating to the WOW alliance and consists of three complaints, alleging, first, errors in the finding that the contacts between members of the WOW alliance were illegitimate, secondly, wrongful omission to examine the compatibility of contacts within the WOW alliance with Article 101 TFEU and, thirdly, errors relating to the inclusion of those contacts in the scope of the single and continuous infringement.

(e) The eighth part of the plea, alleging errors relating to the inclusion in the single and continuous infringement of disparate local events that took place in a few countries

433 The applicants claim that the contacts referred to in recitals 144, 173, 174, 395, 411, 425, 559 and 584 of the contested decision were disparate and local in nature and could not therefore be used to establish their participation in, or awareness of, the single and continuous infringement on a worldwide scale. They also claim that the Commission has failed to rebut the arguments and evidence submitted by the applicants for the purposes of establishing that there was no intrinsic link between those contacts and those that took place in the context of the cartel at issue.

434 Those contacts and the single and continuous infringement did not pursue the same objective, involved different carriers and employees and differed in their timing, location and content. Furthermore, those contacts were isolated in nature, involved local employees in Germany, Denmark and Finland and non-incriminated carriers, or carriers against whom those contacts were not relied on, and concerned individual discussions on specific local issues. The fact that such contacts were reported to the applicants’ head office cannot automatically establish coordination or an exchange of information at the level of the applicants’ head office which exceeds the local matter concerned.

435 The applicants also claim that a number of the contacts at issue did not lead to any coordination and had no effect on their conduct.

436 The applicants add that the contacts at issue did not make their staff aware of the cartel around the core group and that the Commission has not established that the natural persons involved intended, by their involvement in those contacts, to contribute to a global cartel.

437 The Commission disputes the applicants’ line of argument.

438 It should be noted that, like the WOW alliance contacts examined in the fourth part of the present plea, the four series of contacts referred to in recitals 144, 173, 174, 395, 411, 425, 559 and 584 of the contested decision meet a number of the criteria that the Courts of the European Union regard as being relevant for the purpose of assessing the single nature of an infringement (see paragraph 298 above) and which the Commission relied on in the contested decision for the purpose of characterising the conduct at issue as ‘a single complex and continuous infringement’ (see paragraph 300 above).

439 In the first place, like the other conduct that the Commission considered to form part of the single and continuous infringement, those four series of contacts concerned all freight services (single service). Similarly, they all related to the future intentions of the carriers involved, or even the adoption of a common course of conduct, concerning the introduction or implementation of surcharges (anticompetitive objective and single nature of the infringement).

440 First, the internal email exchange from 5 to 11 January 2000 described in recital 144 of the contested decision refers to discussions between the applicants’ local manager in Finland and three other incriminated carriers concerning the introduction of the FSC (see also paragraph 357 above). In the course of those discussions, British Airways’ local manager explained that British Airways ‘[had] still not decided if [the FSC would] be implemented or not’, while KLM’s local manager proposed that ‘we should all stick to this [FSC]’ and a Lufthansa employee confirmed that Lufthansa ‘will stick [to] this [FSC]’.

441 Secondly, the ‘coffee round’ of 22 January 2001 described in recitals 173 and 174 of the contested decision concerned, in particular, the implementation of the FSC. It is thus apparent from an internal memorandum from a Martinair employee regarding that meeting, as summarised in recital 174 of the contested decision, that ‘[Lufthansa] was going to decrease the FSC level on 1 February 2001 while [Cargolux, Swiss, another carrier, KLM and British Airways] maintained the FSC level’.

442 Thirdly, recitals 395, 411, 425 and 559 of the contested decision describe a number of contacts that took place between 2004 and 2005 concerning the implementation of the FSC. First of all, an email of 22 September 2004 by which Lufthansa sent various carriers an announcement of an increase in the FSC (recital 411), then meetings of 3 September 2004 and 17 November 2005 of the Board of Airlines Representatives in Germany (‘BARIG’), during which Lufthansa provided various carriers with information about the FSC (recitals 425 and 559) and, lastly, a meeting of the CSC of the BAR of Singapore on 23 July 2004, during which an SAC official asked other carriers, in relation to the examination of the FSC, to ‘exercise some level of cooperation for future exercises, in view of the need for greater transparency with regard to these surcharges’ (recital 395).

443 Fourthly, recital 584 of the contested decision describes an email of 25 September 2001. It is apparent from the email, as summarised by the Commission in that recital, that a local SAC employee ‘in Scandinavia’ communicated to the applicants ‘the plans of competitors … that [were] all … considering the introduction of an SSC but would prefer [the applicants] to move first’.

444 In the second place, as regards the location, timing, content and allegedly local character of the four series of contacts at issue and of the persons involved in them, the applicants must be found to be mistaken.

445 It is true that, as noted by the applicants, some of the contacts referred to in recitals 144, 173, 174, 395, 411, 425, 559 and 584 of that decision had a local dimension and some of them did not take place at the same time as the announcements regarding the decisions on FSC and SSC. It must, however, be observed that, far from demonstrating that those contacts did not form part of the single and continuous infringement, those circumstances are merely a consequence of the manner in which the cartel at issue was implemented. As is apparent from recital 889 of the contested decision, the surcharges were measures of general application that were not route-specific but were intended to be applied on all routes, on a worldwide basis. For that reason, as the Commission explained in footnote 1323 and in recitals 876 and 1046 of the contested decision, the decisions concerning surcharges were generally taken at the head-office level of each carrier, because of their worldwide application, but were implemented at the local level by local staff and could be subject to variations in particular in the light of local market conditions or regulations.

446 First, it must be noted that, as the applicants in essence acknowledge, the internal email exchange referred to in recital 144 of the contested decision took place in the month following the exchange of emails of 13 and 14 December 1999 between the carriers of the Star Cargo alliance (see paragraph 360 above), soon after the announcement of the introduction of the FSC, and related to the response to be given to the opposition that that announcement had drawn from the Finnish Forwarders Association. It is, moreover, the applicants’ head office that initiated that exchange. It should be noted that it was an employee of the applicants’ head office who asked the applicants’ office in Helsinki (Finland) to have ‘close unofficial contact’ with a Lufthansa employee concerning the opposition expressed by the Finnish Forwarders Association when the FSC was introduced. It was also the head office that encouraged the applicants’ office in Helsinki to respond to that association without ‘[referring] to other carriers as this can be a problem with anti-trust watching authorities’.

447 Secondly, it should be noted that the ‘coffee round’ of 22 January 2001 and the BARIG cargo committee meeting of 17 November 2005 referred to, respectively, in recitals 173 and 174 and in recital 559 of the contested decision concerned, at the very least, the implementation in Germany of a change in the level of the FSC decided at head-office level. It is apparent from Martinair’s internal memorandum described in paragraph 441 above, as summarised in recital 174 of that decision, that the outcome of the ‘coffee round’ of 22 January 2001, to which Lufthansa’s Director of Sales for Asia and Australia had invited a number of competitors, was that ‘[Lufthansa] was going to decrease the FSC level on 1 February 2001 while [Cargolux, Swiss, another carrier, KLM and British Airways] maintained the FSC level’. It is apparent from recitals 168 to 171 and 182 of that decision that those reductions, which were to be implemented in Germany, were also applied on a broader scale. In addition, the BARIG cargo committee meeting of 17 November 2005 concerned, inter alia, the announcement by Lufthansa of a reduction in the FSC as from 28 November 2005. It is apparent from recitals 552 to 556 and 562 of the contested decision that that reduction was also applied on a broader scale.

448 Thirdly, it should be observed that the BARIG cargo committee meeting of 3 September 2004 referred to in recital 425 of the contested decision concerned a number of ‘topics’ in relation to which Lufthansa informed the other participants of its ‘news’. Those topics included, inter alia, the FSC. In the application, the applicants state that this concerned amendments to the FSC.

449 Recital 411 of the contested decision refers to an email in which Lufthansa, 19 days later, sent to 16 carriers, a number of whom had attended the BARIG cargo committee meeting described in paragraph 448 above, its announcement regarding an increase in the FSC with effect from 4 October 2004. It is not disputed that that email was sent by Lufthansa’s German sales manager to its local counterparts.

450 However, the evidence in the Commission’s file establishes that the scope of that email was not exclusively local. At the very least, it was intended to ensure the local implementation of an increase decided at head-office level. It is not apparent from either the contested decision nor from the applicants’ written pleadings that that increase was not also intended to apply in other countries.

451 On the contrary, it is apparent from recital 409 of the contested decision that, on the day before that email was sent, the manager of CPA in Belgium forwarded, internally to the head office, the announcement of an increase in Lufthansa’s FSC and stated that there would be, on the same day, a ‘final discussion … with the “industry” [to] decide the Belgian kick off date’. Thus, it is apparent from CPA’s internal emails referred to in recital 414 of the contested decision that ‘most freighter operators in [Brussels] [had] decided to increase as of 01st Oct 04’, but that SAC, after indicating its intention to do the same, was ‘recalled by [its head office] to go for 04 Oct [2004]’ (see paragraph 289 above).

452 In addition, the applicants stated in the application that one and the same German sales manager had been sent the announcements relating to the FSC that Lufthansa had sent them between 2003 and 2004, including that described in recital 411 of the contested decision.

453 Fourthly, it should be observed that, as the applicants acknowledge in the application, the email referred to in recital 584 of the contested decision was addressed to their chief executive officer. It is also apparent from that recital that the local SAC employee who, in that email, sent the applicants information on the intention of a number of carriers to introduce an SSC also sent them to SAC’s head office.

454 It is true that, unlike the contacts referred to in recitals 144, 173, 174, 559 and 584 of the contested decision, the email referred to in recital 584 of that decision was sent before a decision concerning the SSC had been taken at the carriers’ head-office level. However, that can be explained by the fact that that email was sent when it was not yet certain that the SSC would be introduced.

455 Fifthly, it is apparent from recital 372 of the contested decision that the meeting of the CSC of the BAR of Singapore of 23 July 2004 referred to in recital 395 of that decision was part of discussions between carriers that took place in the summer of 2004, both at head-office level and local level, concerning the introduction of new trigger points, the recent increase in fuel prices and the increase of the FSC. The applicants have not adduced the slightest evidence to call that interpretation into question.

456 The Commission was therefore correct to rely on the contacts referred to in recitals 144, 173, 174, 395, 411, 425, 559 and 584 of the contested decision in order to establish the applicants’ participation in the single and continuous infringement.

457 None of the applicants’ arguments is capable of calling that finding into question.

458 In the first place, it should be observed that the applicants are not justified in claiming that the Commission was required to demonstrate that the natural persons who participated in the four contacts at issue each intended, by their involvement in those contacts, to contribute to the cartel at issue. Nor may the applicants maintain that the Commission was required to show that those contacts were such as to enable the persons involved to become aware of the ‘cartel around the core group’.

459 According to the case-law, an undertaking which has participated in a single and complex infringement through its own conduct, which fell within the definition of an agreement or a concerted practice having an anticompetitive object for the purposes of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may also be liable in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens , C‑441/11 P, EU:C:2012:778, paragraph 42 and the case-law cited).

460 An undertaking may thus have participated directly in all the forms of anticompetitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, an undertaking may have participated directly in only some of the forms of anticompetitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (judgment of 6 December 2012, Commission v Verhuizingen Coppens , C‑441/11 P, EU:C:2012:778, paragraph 43 ).

461 It follows that three conditions must be met in order to establish participation in a single and continuous infringement, namely the existence of an overall plan pursuing a common objective, the intentional contribution of the undertaking concerned to that plan, and its awareness (proved or presumed) of the offending conduct of the other participants in which it did not participate directly (judgment of 16 June 2011, Putters International v Commission , T‑211/08, EU:T:2011:289, paragraph 35 ; see also judgment of 13 July 2018, Stührk Delikatessen Import v Commission , T‑58/14, not published, EU:T:2018:474, paragraph 118 and the case-law cited).

462 There was, however, no need for the same to apply to each of the natural persons involved.

463 In the second place, as regards the fact that not all of the contacts referred to in recitals 144, 173, 174, 395, 411, 425, 559 and 584 of the contested decision were relied on against all of the carriers involved, it should be recalled that, as is clear from recital 845 of the contested decision, it is not necessary for every item of evidence produced by the Commission to establish with certainty that the infringement has been committed. It is sufficient if the body of evidence relied on by the Commission, viewed as a whole, and whose various elements are able to reinforce each other, meets that requirement (see judgment of 16 November 2011, Sachsa Verpackung v Commission , T‑79/06, not published, EU:T:2011:674, paragraph 60 and the case-law cited).

464 The Commission was therefore correct in stating in recital 716 of the contested decision that it ‘[did] not necessarily hold every recital … and every single item of evidence therein to be of equal value’ and that ‘rather, the recitals to which reference [was] made [formed] part of the overall body of evidence [on which it relied] and [had] to be evaluated in this context’.

465 However, it has not been established that the Commission had a body of evidence against the carriers at issue in the contacts in question equivalent to that which it had against the applicants.

466 In the third place, for reasons similar to those set out in paragraph 363 above, the applicants may not rely on the lack of effects on their conduct of the contacts referred to in recitals 144 and 584 of the contested decision.

467 In the light of the foregoing, the present part of the plea must be rejected.

(f) The fifth part of the plea, alleging errors relating to the inclusion in the single and continuous infringement of contacts relating to block space agreements

468 The applicants claim that the Commission made an error of fact and of law in concluding that Lufthansa’s collective emails referred to in recitals 446, 450, 482 and 495 of the contested decision formed part of the single and continuous infringement even though they concerned the application of an FSC in the context of block space agreements between Lufthansa and other carriers.

469 In the first place, according to the applicants, it is possible to find evidence of the existence and terms of those agreements only in documents to which they did not have access and which they asked to be produced in the context of the first plea, namely Lufthansa’s leniency statements and the replies of other carriers to the Statement of Objections. The applicants’ interpretation is, nevertheless, supported by the following three factors. First, those emails were sent between March and August 2005 by Lufthansa’s pricing department to the ‘network’ employees of other carriers which purchased capacity on Lufthansa’s aircraft. Those services are responsible for managing the block space agreements between carriers and are generally not involved in pricing or in the fixing of surcharges. Secondly, Lufthansa referred to the addressees of those emails as ‘dear partners’. Thirdly, the existence of block space agreements between Lufthansa and the addressees of those emails is the only plausible explanation for the change of addressees from one email to another.

470 In the second place, the Commission failed to demonstrate that the emails from Lufthansa Cargo referred to in recitals 446, 450, 482 and 495 of the contested decision were part of the single and continuous infringement.

471 The applicants claim that the Commission failed to discharge its burden of proof and failed to provide sufficient reasons for the contested decision in so far as that decision did not respond to any of the arguments and evidence submitted by the applicants. Those arguments and evidence show that there was no intrinsic link or interaction between those emails and the communications that took place in the context of the cartel at issue. First of all, Lufthansa’s emails referred to in recitals 446, 450, 482 and 495 of the contested decision were sent in each case to between 10 and 12 carriers, none of which belonged to the ‘core group’ and more than half of which were not found to have participated in the cartel at issue. Next, the employees to whom those emails were addressed were responsible for the management of block space agreements. Moreover, the applicants’ employee to whom those emails were sent did not receive any of the other emails which the Commission relied on against them. Lastly, the sending of those emails, which contained exclusively publicly accessible information, coincided with the introduction of an FSC in the block space agreements between carriers in 2005.

472 In addition, the Commission did not explain how the applicants’ employee to whom the emails from Lufthansa referred to in recitals 446, 450, 482 and 495 of the contested decision were addressed intended to contribute to the single and continuous infringement, by passively receiving emails containing public announcements concerning FSCs for which there was a legitimate commercial justification.

473 In the third place and in any event, Lufthansa’s emails referred to in recitals 446, 450, 482 and 495 of the contested decision could not have had any influence on the applicants’ conduct. The applicants determined their surcharge policy in the context of their cooperation with Lufthansa as part of the exempted alliance. That cooperation was carried out through exchanges of bilateral emails between the head offices of the two carriers, which always preceded Lufthansa’s collective emails.

474 The Commission disputes the applicants’ line of argument.

475 In that regard, in the first place, it should be noted that, like the other instances of conduct that were part of the single and continuous infringement, the emails referred to in recitals 446, 450, 482 and 495 of the contested decision concerned all freight services (single service) and concerned the amount and timing of the FSC (anticompetitive objective and single nature of the infringement). The purpose of all those emails was to inform the addressees of Lufthansa’s intention to increase its FSC as from a specific future date.

476 Contrary to the applicants’ submission, it cannot be held that it was exclusively a matter of ensuring the proper performance of hypothetical block space agreements.

477 It is apparent from recital 482 of the contested decision that the contacts in question served, at least in part, to support the cartel at issue. In recital 482 of the contested decision, the Commission cited the reply of a carrier to the email from Lufthansa cited in that same recital. In that reply, that carrier informs Lufthansa that: ‘we have instructed our offices to implement the increase accordingly’.

478 However, it is not apparent from the evidence that that response was part of the implementation of a commercial agreement between the carrier at issue and Lufthansa. The fact that that carrier has not been found liable in relation to the single and continuous infringement and that it shared those intentions bilaterally is not such as to refute that finding.

479 Furthermore, it is apparent from an examination of the chronology of the contacts relating to the FSC that those collective emails sent by Lufthansa triggered a cascade of actions by the other carriers in relation to their own FSC. For example, Lufthansa’s communication of 22 August 2005 (recital 495) led, on the same day or the next day, to internal exchanges within the applicants (recital 496), Japan Airlines (recital 497) and another carrier (recital 498) regarding the increase of the FSC.

480 Lastly, the applicants may not rely on the public nature of the information disseminated in the context of the contacts described in recitals 446, 450, 482 and 495 of the contested decision. First, it should be noted that the exchange of publicly available information infringes Article 101(1) TFEU, where it underpins another anticompetitive arrangement (see, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission , C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 281 ).

481 As is apparent from recitals 118, 121, 125, 706 and 848 of the contested decision and from paragraphs 476 and 478 above, that was the case as regards the contacts described in recitals 446, 450, 482 and 495 of the contested decision.

482 Moreover, it should be observed, as noted by the Commission, that, in the context of the contacts described in recitals 446, 450, 482 and 495 of the contested decision, Lufthansa did not merely disclose publicly available information to the parties to hypothetical block space agreements. On the contrary, Lufthansa sent them collective emails, thus revealing to all the addressees the identity of the carriers concerned (see recital 797 of the contested decision), as well as the amount and timing of the FSC for which they were liable under those hypothetical agreements.

483 Moreover, the applicants do not even claim that such collective emails were necessary for the implementation of those hypothetical agreements and the documents in the Commission’s file show that that was not the case. It is thus apparent from recital 453 of the contested decision that, on 22 March 2005, Lufthansa sent to one of the parties to those hypothetical agreements the press release announcing an increase in the FSC which it had previously sent to its ‘dear partners’ by means of a collective email (recital 450). Similarly, it is apparent from the emails in Annexes A.59 to A.61 to the application that it was on a bilateral basis that SAC informed the applicants of its intention to increase the FSC for which they were liable under the block space agreements which they had concluded.

484 In the second place, it should be observed that the sender of three of those four emails (recitals 446, 482 and 495 of the contested decision) is an employee of Lufthansa which the applicants themselves describe as being ‘apparently the central lynchpin of the global [single and continuous infringement]’ and ‘the central [Lufthansa] employee within the core group’. The sender of the fourth of those emails (recital 450 of the contested decision) was Lufthansa’s pricing manager. That person was involved in at least one other contact at issue (recital 455 of the contested decision). Moreover, it is apparent from the email of 7 April 2005 referred to in recital 457 of the contested decision that Lan Airlines’ pricing director asked one of his colleagues to contact Lufthansa’s pricing manager in order to discuss the fuel price index.

485 It is nevertheless true that the applicants’ employee to whom Lufthansa’s emails referred to in recitals 446, 450, 482 and 495 of the contested decision were addressed did not participate in other conduct that the Commission found to be part of the single and continuous infringement. That is not, however, sufficient to show that those emails did not form part of the single and continuous infringement. There is a certain overlap between the other addressees of those emails and the natural persons who participated in other conduct found to form part of that infringement. In particular, the Lan Airlines employee who was sent the email referred to in recital 495 of the contested decision participated in the contacts at issue described in recital 474 of that decision.

486 Furthermore, it should be borne in mind that it is not necessary for the natural persons involved in the various instances of conduct at issue to be the same for there to be a finding of a single and continuous infringement. Nor is it necessary for the nature of the undertakings involved to be the same (see paragraph 316 above).

487 In the third place, it should be noted that the method, namely collective emails, by which Lufthansa informed many carriers of its intention to change the FSC level in the near future was not used only in the context of contacts which the applicants claim were intended to implement block space agreements. Lufthansa used that same method for other contacts, both at head-office level (recitals 279 and 346 of the contested decision) and local level (recitals 313 and 507 of the contested decision).

488 In the fourth place, as regards the fact that sending those emails coincided with the inclusion of surcharges in the block space agreements, it must be observed that those emails are also contemporaneous with numerous other contacts at issue, which are not claimed to have been intended to implement such agreements.

489 As regards the complaint alleging a failure to state reasons put forward in the context of the present part of the plea, it must be recalled that, under Article 296 TFEU and Article 41(2)(c) of the Charter, decisions adopted by the Commission must state the reasons on which they are based.

490 The statement of reasons must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review (see, to that effect, judgment of 29 September 2011, Elf Aquitaine v Commission , C‑521/09 P, EU:C:2011:620, paragraph 147 ).

491 The requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom that measure is of concern within the meaning of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU and Article 41(2)(c) of the Charter must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 29 September 2011, Elf Aquitaine v Commission , C‑521/09 P, EU:C:2011:620, paragraph 150 , and of 13 December 2016, Printeos and Others v Commission , T‑95/15, EU:T:2016:722, paragraph 45 ).

492 In the present case, the Commission described the ‘basic principles and structure of the cartel’ in recitals 107 to 112 of the contested decision and described in recitals 118 to 120 of that decision the contacts concerning the FSC, which included, inter alia, emails containing public information, including to non-incriminated carriers. In recitals 869 to 883 of that decision, it explained the reasons why it had concluded that there was a single infringement. In recital 719 of that decision, it examined the evidence relied on against the applicants as regards the element of the single and continuous infringement relating to the FSC, including that referred to in recitals 446, 450, 482 and 495 of that decision.

493 In those circumstances, having regard also to the relevant case-law and, moreover, as is apparent from the substantive arguments put forward in the context of the present part of the plea (see paragraphs 475 to 488 above), it must be held that the contested decision enabled the applicants to understand why the Commission found that that evidence formed part of the single and continuous infringement notwithstanding the arguments put forward at the stage of the administrative procedure and enabled the Court to exercise its power of review.

494 The present part must therefore be rejected.

495 In those circumstances, assuming that the applicants intended to reiterate, in the context of the present part of the plea, their request for the production of Lufthansa’s leniency statements and the replies of other carriers to the Statement of Objections, the Court finds that the production of such documents is not liable to be of any use in the examination of the present part of the plea and, therefore, that there is no need, by way of a measure of organisation of procedure, to request the Commission to produce them.

(g) The sixth part of the plea, alleging errors in the assessment of contacts in third countries

496 The applicants claim that the Commission erred in fact and in law by including in the single and continuous infringement the applicants’ conduct related to EEA-third country routes. The applicants put forward, in essence, five complaints in support of that claim. Those complaints allege, first, breach of the principles of sovereignty and non-interference, secondly, errors in the assessment of the State coercion to which the applicants claim to have been subjected in a number of third countries, thirdly, errors in the application of Article 101(1) TFEU to conduct relating to inbound routes prior to 1 May 2004 and of Article 8 of the EC-Switzerland Air Transport Agreement to conduct relating to EU-Switzerland routes prior to 1 June 2002, fourthly, errors in the assessment of the conduct that took place in Switzerland and, fifthly, an error relating to the inclusion in the single and continuous infringement of the applicants’ conduct in third countries.

(h) The seventh part of the plea, alleging errors in the assessment of speculation on the part other carriers as to the applicants’ conduct

625 The applicants criticise the Commission for finding that the evidence described in recitals 196, 273, 406 and 415 of the contested decision formed part of the single and continuous infringement. According to the applicants, that evidence relates to contacts to which they were not party and contains only publicly available information in their regard.

626 The Commission disputes the applicants’ line of argument. In particular, as regards the CPA table described in recital 196 of the contested decision, the Commission states that it suggests that the applicants had communicated some of the information at issue to CPA before it was made public. It adds that the applicants are unable to prove that the remaining information at issue was already in the public domain, at least as regards two carriers, and that recitals 173, 237 and 394 of the contested decision describe other evidence of contacts between the applicants’ staff and CPA. As regards the contacts referred to in recitals 406 and 415 of the contested decision, the Commission maintains that, in those messages, AF examined the applicants’ future conduct. Those messages prove that AF and KLM planned to align their FSC policy with that of Lufthansa and the applicants. The Commission adds that the contacts described in recitals 173, 174, 425, 546 and 966 support its point of view.

627 In recital 791 of the contested decision, the Commission described various contacts at issue in which the applicants, in its view, participated. At the end of that recital, the Commission added, referring to recitals 196, 273, 406, 415, 425, 506, 491 and 559 of the contested decision, that ‘there [was] some further evidence relating to contacts with competitors’.

628 The present part of the plea relates to four of those eight recitals.

629 In the first place, in recital 196 of the contested decision, the Commission referred to a file found on the laptop of a CPA employee. That file was entitled ‘FSC summary 06 Dec 01’ and contains a table titled ‘FSC removal by country’. It is apparent in particular from that table that, ‘in Scandinavia’, the applicants had planned to remove the FSC on 20 December 2001, but that for CPA the ‘official notice’ was still ‘pending’.

630 However, the applicants had already announced, by means of a press release of 5 December 2001, that they would remove the FSC with effect from 20 December 2007. As is apparent from the file relating to the administrative procedure, five of the seven other carriers identified in the table titled ‘FSC removal by country’ had publicly announced between 21 November and 6 December 2001 that they would remove the FSC in December 2001.

631 As regards the other two carriers identified in the table in question, it is true that the applicants have not established that they had announced their plan to remove the FSC on 6 December or an earlier date. It must, however, be observed, as noted by the applicants, that the dates on which the announcement of their project to remove the FSC was published do not appear in the file relating to the administrative procedure and that one of them had ceased to exist on the date on which the action was brought. In those circumstances, since the announcements in question were published more than 15 years before that date, the applicants cannot be held liable in that regard.

632 The Commission was therefore not justified in inferring from the document referred to in recital 196 of the contested decision that an anticompetitive contact had taken place involving the applicants. The mere fact that the applicants participated in multilateral contacts several months (recitals 173 and 237) or even years apart (recital 394) in which CPA also participated is not capable of calling that conclusion into question.

633 In the second place, in recital 273 of the contested decision, the Commission referred to an internal Qantas email of 17 February 2003 from which it is apparent that a number of carriers, including the applicants, ‘[had] indicated they [would] be increasing the FSC from GBP 0.06/kg to GBP 0.09/kg’ and that ‘[Lufthansa] Germany [were] expected to announce an increase from EUR 0.10/kg to EUR 0.15/kg [the next day]’.

634 The applicants admittedly argue that Qantas could have obtained that information indirectly, for example via their website or a freight forwarder. However, they have failed to adduce the slightest evidence to substantiate that argument.

635 The only document on which the applicants rely in support of their argument is a newsletter published by a freight forwarder on 14 February 2003. However, that bulletin does not mention the applicants. On the contrary, it states as follows:

‘We have received notice as of Friday, February 14th that Cargolux, … , British, KLM, … , and the Lan Chile Group (approx five [carriers]) will increase their FSC by five-cents to $0.15/kg. We anticipate receiving notice from virtually all [carriers] next week.’

636 The applicants have therefore failed to establish that the Commission erred in relying against them on the email referred to in recital 273 of the contested decision.

637 In the third place, the Commission referred to two exchanges of internal AF emails.

638 First, in recital 406 of the contested decision, the Commission relied on an internal AF email of 20 September 2004. That email concerns the situation in Denmark and is worded as follows:

‘We just got the info that [Lufthansa] will increase the FSC to 0.3 Euros on Oct 04th [2004]. I guess [SAS] will follow very quickly so we adjust ourself to the [SAS] level.’

639 The use of the wording ‘I guess’ in that email shows a degree of uncertainty as to the applicants’ intentions which tends to cast doubt on the existence of such a contact.

640 The other documents in the file are not conclusive either. An overall reading of the exchanges in which that email is included shows that the assumption made in recital 406 of the contested decision was intended solely to anticipate the lack of information as to the applicants’ intentions. In those exchanges, it is stated that the applicants’ announcement is ‘not ready yet’ and that ‘I think we should wait to hear the position’ of the applicants. Reference is also made to the possibility that the applicants might ‘not [advise]’.

641 Contrary to the Commission’s contention, there is nothing to suggest that AF expected the applicants to inform it of their intention to increase the FSC by bilateral and non-public means. On the contrary, it is apparent from an internal AF email of 23 September 2004 that it was ultimately through a newsletter of the applicants, to which it had subscribed, that AF became aware of those intentions.

642 Secondly, in recital 415 of the contested decision, the Commission refers to an email of 23 September 2004 entitled ‘fuel surcharge Denmark’, in which AF asks KL[M] if it had been able to ‘fix the issue on KL alignment on AF, [Lufthansa] and [the applicants]’.

643 However, neither that email nor those which preceded or followed it refer to any contact between AF and the applicants. Nor do they imply that such contact took place. On the contrary, it is apparent from an internal AF email of 20 September 2004 and the applicants’ written pleadings that the intention was to ensure that, following the merger between AF and KLM, KLM ceased to charge a lower FSC than the competition.

644 The other evidence to which the Commission refers (recitals 173, 174, 425, 546 and 966 of the contested decision) do not invalidate that conclusion.

645 First of all, the exchange of emails referred to in recital 546 of the contested decision does not establish that there was contact between AF and the applicants. As the Commission states, that exchange shows only that the applicants aligned their conduct with that of AF and KLM and induced SAC to do the same. Moreover, that exchange dates from November 2005. It therefore took place more than a year after the email referred to in recital 415 of the contested decision.

646 Next, the meeting of 22 January 2001 referred to in recitals 173 and 174 of the contested decision precedes the email referred to in recital 415 of the contested decision by more than three years.

647 Furthermore, contrary to what is stated in recital 966 of the contested decision, it was not to the applicants that AF sent the email of 27 June 2005 from which it is apparent that ‘we have “agreed” to 3.30 DKK AF/KL[M] from 7 July 2005’. AF sent that email to Lufthansa, which subsequently transferred it to the applicants.

648 Lastly, the contact at issue referred to in recital 425 of the contested decision is a BARIG cargo committee meeting of 3 September 2004, in which the applicants, Lufthansa and AF participated, among others. It is true that that meeting concerned, inter alia, the FSC. However, as is apparent from paragraph 448 above, it was for Lufthansa to communicate to the other participants in that meeting its latest news in that regard. Moreover, as is apparent from the minutes of that meeting, that meeting related above all to the situation in Germany.

649 The Commission cannot therefore infer from that meeting that there were local contacts between AF and the applicants in Denmark.

650 In the light of the foregoing and in the absence of other firm, precise and consistent evidence establishing that the contacts referred to in recitals 196, 406 and 415 of the contested decision substantiated the applicants’ participation in the single and continuous infringement, they must be excluded from the body of evidence which the applicants contest as a whole in the tenth part of the present plea.

(i) The ninth part of the plea, alleging errors in the assessment of the applicants’ knowledge of the conduct of the other incriminated carriers

651 The applicants claim that the Commission failed to discharge its burden of proving that they were aware or should have been aware of all the anticompetitive conduct concerning surcharges and the refusal to pay commission in which they did not participate and in relation to which they were not prepared to bear the risk.

652 In accordance with the case-law cited in paragraph 459 above, in order to ascribe to the applicants the single and continuous infringement as a whole, the Commission was required to establish either that the applicants had participated in all the conduct comprising that infringement or that they were aware of all the unlawful conduct which the other participants in the cartel planned or put into effect in pursuit of the same objectives, and in which the applicants had not directly participated, or which the applicants could have reasonably foreseen and in relation to which they were prepared to bear the risk.

653 However, the mere fact that there is identity of object between an agreement in which an undertaking participated and an overall cartel does not suffice to render that undertaking responsible for the overall cartel. That applies even where there are objective links between that agreement and the overall cartel. It is only if the undertaking concerned, when participating in an agreement, knew or should have known that in so doing it was joining in the overall cartel that its participation in the agreement concerned can constitute the expression of its accession to that cartel (see, to that effect, judgment of 30 November 2011, Quinn Barlo and Others v Commission , T‑208/06, EU:T:2011:701, paragraphs 144 and 150 and the case-law cited).

654 It is for the Commission to prove that the undertaking concerned had the requisite knowledge of the anticompetitive conduct planned or put into effect by the other participants in the overall cartel but in which it did not directly participate (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens , C‑441/11 P, EU:C:2012:778, paragraph 67 ).

655 In order to do so, the Commission must adduce evidence that is sufficiently precise and consistent to establish that the undertaking concerned had such knowledge (see, to that effect, judgment of 20 March 2002, Sigma Tecnologie v Commission , T‑28/99, EU:T:2002:76, paragraph 51 ).

656 The Commission is not, however, required to establish that the undertaking concerned was aware, or should have been aware, in detail, of the concerted practices that took place in the context of the contacts at issue in which it did not participate. Nor is it necessary for it to establish that the undertaking in question was aware, or should have been aware of all of those contacts (see, to that effect, judgment of 14 December 2006, Raiffeisen Zentralbank Österreich and Others v Commission , T‑259/02 to T‑264/02 and T‑271/02, EU:T:2006:396, paragraph 193 ).

657 The undertaking concerned must merely be aware of the general scope and the essential characteristics of the cartel as a whole (see judgment of 10 October 2014, Soliver v Commission , T‑68/09, EU:T:2014:867, paragraph 64 and the case-law cited).

658 Where that is the case, the fact that an undertaking did not take part in all the constituent elements of a cartel or that it played only a minor role in the elements in which it did participate must be taken into consideration only when the gravity of the infringement is assessed and, as the case may be, in determining the amount of the fine (see judgment of 10 October 2014, Soliver v Commission , T‑68/09, EU:T:2014:867, paragraph 65 and the case-law cited).

659 It is in the light of those principles that it is necessary to determine whether the Commission was justified in concluding that the applicants had the requisite knowledge of the conduct of the other incriminated carriers in which they did not participate directly concerning, first, the surcharges and, secondly, the refusal to pay commission.

(j) The tenth part of the plea, alleging errors in the overall assessment of the body of evidence relied on by the Commission

713 The applicants claim that, in the contested decision, the Commission listed a series of isolated, disjointed and local conduct without examining whether there were objective links between them and that it therefore erred in inferring from the body of evidence relied on that the applicants participated in the elements of the single and continuous infringement relating to the FSC and the SSC.

714 As regards the contacts at issue that took place between December 1999 and December 2001, the evidence relied on by the Commission corresponds, in some cases, to conduct unrelated to transport within the EEA. The other contacts are not sufficient to establish the applicants’ participation in the single and continuous infringement, either because they do not prove that contacts with other carriers took place, or because they concern facts covered by an alliance, or because they do not fall within the material, geographic or temporal scope of the single and continuous infringement. Moreover, most of the evidence relied on concerning the contacts at issue that took place between May 2004 and February 2006 is ineffective or relates to legitimate conduct in the context of alliances or conduct required by local regulations. In any event, that evidence reflects a series of isolated and local incidents.

715 As regards the conduct related to the SSC, most predate May 2004. They have no connection with transport within the EEA, relate to facts covered by an alliance or local regulation or do not prove the existence of contacts between the applicants and other carriers. The only conduct subsequent to May 2004 relates to legitimate behaviour in the context of an alliance.

716 The Commission disputes the applicants’ line of argument.

717 By the present part of the plea, the applicants claim, in essence, that it is apparent from the first to ninth parts of the present plea that the body of evidence relied on by the Commission in recitals 791 and 792 of the contested decision, viewed as a whole, is not capable of establishing that they participated in the elements of the single and continuous infringement relating to the FSC and the SSC.

718 In the present case, in the first place, as regards the conduct relating to the FSC, it is apparent from the examination of the first to ninth parts of the present plea that, of the approximately 40 contacts at issue on which the Commission relied, only 6 must be excluded from the body of evidence relied on in recital 791 of the contested decision. These are the contacts referred to in recitals 196, 223, 406, 415, 443 and 517 of the contested decision.

719 In that regard, first, it should be observed that the contacts reported in recitals 223 and 517 of the contested decision are among the 13 contacts at issue that the Commission relied on in order to conclude that the implementation of the FSC was discussed between the members of the WOW alliance, including the applicants. As is apparent from the examination of the second to fourth parts of the present plea, the 11 remaining contacts are sufficient to justify that conclusion.

720 Secondly, it should be noted that the contact referred to in recital 443 of the contested decision is among the three contacts at issue on which the Commission relied in order to conclude that the applicants had exchanged emails with the members of ACCS, revealing the actions they had planned and their future announcements. As is apparent from the examination of the fourth complaint in the sixth part of the present plea, the two remaining contacts are sufficient to justify that conclusion.

721 Thirdly, it should be noted that the contacts referred to in recitals 196, 406 and 415 of the contested decision are among the eight contacts at issue referred to in recital 791 of the contested decision in support of the finding that ‘there is some further evidence relating to contacts with competitors’. As is apparent from the use of the word ‘further’, this finding was made for the sake of completeness. Therefore, even if the exclusion of the contacts referred to in recitals 196, 406 and 415 of the contested decision were such as to vitiate that finding, that would have no bearing on the ability of the body of evidence relied on in recital 791 of the contested decision to establish, as the case may be, the applicants’ participation in the element of the single and continuous infringement relating to the FSC.

722 In any event, it must be observed that, as is apparent from the examination of the sixth to eighth parts of the present plea, the five other contacts relied on in support of the finding that ‘there is some further evidence relating to contacts with competitors’ were sufficient to justify it.

723 Fourthly, the contacts referred to in recitals 196, 223, 406, 415, 443 and 517 of the contested decision occurred in periods in respect of which the Commission has other evidence supporting the finding of the applicants’ participation in the element of the single and continuous infringement relating to the FSC, as is apparent in particular from recitals 204, 237, 401, 411, 425, 434, 531 and 546 of the contested decision.

724 It follows from the foregoing that the applicants’ arguments in support of the present part of the plea are not capable of calling into question the body of evidence relied on by the Commission in recital 791 of the contested decision in order to establish their participation in the element of the single and continuous infringement relating to the FSC.

725 In the second place, as regards the conduct relating to the SSC, it must be stated that the applicants’ line of argument in support of the present part of the third plea reproduces, in essence, the argument underlying its first nine parts of the plea in so far as it concerns the element of the single and continuous infringement relating to the SSC. However, that argument has been rejected.

726 Moreover, as regards the emails referred to in recitals 618 and 620 of the contested decision, it was found in paragraphs 338 to 344 above that they did not constitute direct evidence of the applicants’ involvement in the element of the single and continuous infringement relating to the SSC, but only evidence that had to be assessed with all the other elements put forward by the Commission in recital 792 of the contested decision. The emails referred to in recitals 618 and 620 of the contested decision are part of the nine contacts at issue referred to in recital 792 of the contested decision in support of the finding that the applicants coordinated the SSC level with the members of the WOW alliance. In addition, there is the contact referred to in recital 673 of that decision. As is apparent from the examination of the fourth, sixth and eighth parts of the present plea, those contacts were sufficient to justify the finding of coordination of the SSC level between members of the WOW alliance.

727 The applicants’ line of argument cannot therefore call into question the body of evidence relied on by the Commission in recital 792 of the contested decision in order to establish their participation in the element of the single and continuous infringement relating to the SSC.

728 It is therefore necessary to reject the present part of the plea and, consequently, to conclude that, subject to the errors found in paragraph 562 above as regards their participation in the coordination of the FSC in Thailand between 20 July 2005 and 14 February 2006 and in paragraph 712 above as regards their participation in the element of the single and continuous infringement relating to the refusal to pay commission, the applicants have failed to establish, in the context of the present plea, that the Commission erred in determining the extent of their participation in the single and continuous infringement.

(a) The first part of the plea, alleging infringement of Article 266 TFEU

730 The applicants claim that the Commission infringed Article 266 TFEU by failing to take the necessary measures to comply with the judgment of 16 December 2015, SAS Cargo Group and Others v Commission (T‑56/11, not published, EU:T:2015:990 ). Thus, the contested decision is vitiated by the same inconsistencies as those which the Court identified in that judgment between the theory of a single and continuous infringement, on the one hand, and contradictory findings of liability on the part of the various carriers which participated in the infringing conduct, on the other. The applicants cite in that regard the divergent conclusions which the Commission reached concerning an exchange of emails of 13 and 14 December 1999, from which it inferred the beginning of their participation in the single and continuous infringement, while excluding the participation of the other two carriers involved in that email exchange.

731 The Commission disputes the applicants’ line of argument.

732 Pursuant to Article 266 TFEU, the institution whose act has been declared void is required to take the necessary measures to comply with the judgment annulling its act. That obligation involves only taking the necessary measures to comply with the judgment annulling its measure (judgment of 29 November 2007, Italy v Commission , C‑417/06 P, not published, EU:C:2007:733, paragraph 52 ).

733 According to settled case-law, in order to comply with a judgment annulling a measure and to implement it fully, the institution concerned is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part (judgments of 26 April 1988, Asteris and Others v Commission , 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraph 27 , and of 6 March 2003, Interporc v Commission , C‑41/00 P, EU:C:2003:125, paragraph 29 ).

734 Under Article 266 TFEU, the institution concerned is required to ensure that any act intended to replace the annulled act is not vitiated by the same irregularities as those identified in the annulling judgment (see, to that effect, judgment of 29 April 2004, IPK-München and Commission , C‑199/01 P and C‑200/01 P, EU:C:2004:249, paragraph 83 ).

735 By judgment of 16 December 2015, SAS Cargo Group and Others v Commission (T‑56/11, not published, EU:T:2015:990 ), the Court found that the Decision of 9 November 2010 was vitiated by contradictions between its grounds and its operative part, the former describing a single and continuous infringement, relating to all the routes covered by the cartel in which the 21 addressees of the Decision of 9 November 2010 allegedly participated, whereas the latter referred either to four separate single and continuous infringements, or to just one single and continuous infringement, liability for which was attributed to the carriers which, as regards the routes mentioned in Articles 1 to 4 of the Decision of 9 November 2010, had participated directly in the unlawful conduct referred to in each of those articles or had been aware of the collusion on those routes and had accepted the risk (see paragraph 17 above).

736 In addition, the Court considered that the grounds of the Decision of 9 November 2010 contained significant internal inconsistencies in so far as they contained assessments that were difficult to reconcile with the existence of a single cartel covering all of the routes referred to in the operative part, as described in the grounds (judgment of 16 December 2015, SAS Cargo Group and Others v Commission , T‑56/11, not published, EU:T:2015:990, paragraph 75 ). One of those assessments found that the starting date of participation in the infringement for certain carriers was 1 May 2004, on the ground that those carriers could not be held liable for the infringement as regards intra-EEA routes and that Regulation No 1/2003 had become applicable to the routes they served only from that date (judgment of 16 December 2015, SAS Cargo Group and Others v Commission , T‑56/11, not published, EU:T:2015:990, paragraph 76 ).

737 In the present case, the applicants have not put forward any argument to show that the contradictions noted above were reproduced in the contested decision. They merely observe that the beginning of their participation in the single and continuous infringement was determined on the basis of the email exchanges of 13 and 14 December 1999, unlike other carriers which were nonetheless involved in those exchanges. They do not state how that fact establishes that the contested decision maintained the contradictions identified in the judgment of 16 December 2015, SAS Cargo Group and Others v Commission (T‑56/11, not published, EU:T:2015:990 ), and, in particular, contradicts the finding of a single and continuous infringement, relating to all the routes covered by the cartel, in which all of the incriminated carriers participated.

738 Moreover, contrary to the applicants’ assertions, the Court did not rule, in paragraph 85 of the judgment of 16 December 2015, SAS Cargo Group and Others v Commission (T‑56/11, not published, EU:T:2015:990 ), that the Commission had given insufficient reasons for the Decision of 9 November 2010 by finding that the email exchange of 13 and 14 December 1999 was evidence of the applicants’ participation, but not that of the other carriers party to that exchange. In that paragraph, the Court addressed the consequences of the contradictions in the Decision of 9 November 2010 if its operative part were to be read as describing four separate single and continuous infringements. In that regard, the Court referred to the applicants’ allegation that the Commission had treated the exchange of emails of 13 and 14 December 1999 in a discriminatory manner solely to illustrate the consequences of those contradictions. As the Court observes, in essence, in paragraph 85 of the judgment of 16 December 2015, SAS Cargo Group and Others v Commission (T‑56/11, not published, EU:T:2015:990 ), those contradictions deprived the applicants of the possibility to understand whether they had been treated differently to the other addressees of the Decision of 9 November 2010 involved in the email exchanges at issue on the ground that those other addressees did not operate certain routes.

739 The applicants have therefore failed to establish that the contested decision is vitiated by an infringement of Article 266 TFEU. The present part of the plea must therefore be rejected.

(b) The second part of the plea, alleging infringement of the right to property enshrined in Article 17 of the Charter

740 The applicants claim that the Commission acted in an arbitrary and selective way in their regard, thus infringing the right to property enshrined in Article 17 of the Charter, which should, under Article 52(3) of the Charter, have the same meaning and scope as Article 1 of Additional Protocol No 1 to the ECHR. To impose a fine on them constitutes an unjustified interference with their right to property, on account of its arbitrary and inconsistent nature, in so far as the Commission did not hold certain infringers liable for the infringement, or held them liable for a shorter period.

741 The Commission disputes the applicants’ line of argument.

742 As has been pointed out in paragraph 424 above, the fact that an undertaking in a position similar to that of an applicant was not found by the Commission to have committed any infringement cannot constitute a ground for setting aside the finding of an infringement by that applicant, provided it was properly established, the circumstances of that other undertaking not even being the subject of proceedings before the EU Courts. The same applies where the undertaking concerned relies on the fact that the undertaking which is allegedly in a similar position was not penalised for part of its participation in the infringement (see, to that effect, judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission , C‑615/15 P, not published, EU:C:2017:190, paragraph 38 ).

743 In the context of the present part of the plea, referring once again to the Commission’s assessments relating to the email exchange of 13 and 14 December 1999, the applicants specifically criticise the Commission for acting arbitrarily in failing to hold liable some of those responsible for the single and continuous infringement, or in finding them liable for a shorter period. The present part of the plea must therefore be rejected.

744 In any event, as regards the fact that the Commission failed to hold certain infringers of the single and continuous infringement liable, it should be borne in mind that, as is apparent from paragraph 463 above, the possibility of establishing an undertaking’s participation in an infringement depends on all the evidence against it, as the Commission correctly points out. Thus, it is apparent from paragraph 464 above that the Commission was right to state that it ‘[did] not necessarily hold every recital … and every single item of evidence therein to be of equal value’ and that ‘rather, the recitals to which reference [was] made [formed] part of the overall body of evidence [on which it relied] and [had] to be evaluated in this context’. It follows that the fact that a non-incriminated undertaking or an undertaking found liable to a lesser extent is mentioned in certain documents relied on by the Commission against incriminated undertakings is not sufficient to consider that the former is in a similar situation to the latter, as regards their liability for the infringement in question.

745 It follows that the Commission was entitled, without in any way rendering the contested decision arbitrary, to take the view that an overall assessment of the contacts at issue relied on against the applicants was sufficient to incriminate them, while taking the view that there was no sufficiently convincing body of evidence to incriminate the non-incriminated carriers which had participated in some of those contacts.

746 Similarly, as regards the differences between the dates which the Commission found to be the starting dates of the applicants’ participation in the infringement and that of the other two incriminated carriers involved in the email exchange of 13 and 14 December 1999, it must be borne in mind that the determination of the date on which an undertaking began to participate in the infringement may depend on a body of evidence established concomitantly with, before or after the date concerned (see, to that effect, judgment of 16 June 2015, FSL and Others v Commission , T‑655/11, EU:T:2015:383, paragraph 178 ).

747 The Commission was therefore entitled, again without rendering the contested decision arbitrary, to consider that a body of evidence established concomitantly was sufficient to incriminate SAS Consortium as from 13 December 1999, while considering that there was no such body of evidence to incriminate, as of the same date, the other two incriminated carriers which had also participated in the email exchange of 13 and 14 December 1999.

748 Consequently, the Commission cannot be criticised for having identified different starting dates of participation in the single and continuous infringement for the applicants, on the one hand, and the other two incriminated carriers, on the other, even though all those carriers were involved in the email exchange of 13 and 14 December 1999.

749 Moreover, as the Commission correctly notes, without being challenged in that regard, the dates on which participation in the single and continuous infringement began correspond, for each of the three incriminated carriers, to the dates of the first incriminating emails they sent (see recitals 135 and 161 of the contested decision) and, as regards the applicants, they sent the email of 13 December 1999. It follows that there is an objective justification for the different starting dates of participation in the single and continuous infringement found by the Commission in the present case. Any arbitrary conduct on the part of the Commission in that regard must therefore be ruled out.

750 It follows that the complaint alleging infringement of the right to property, which was based entirely on the allegedly arbitrary and inconsistent nature of the proceedings in the present case, must be rejected.

751 In the light of the foregoing, the present plea must be rejected.

(c) The third part of the plea, alleging breach of the duty to state reasons

752 The applicants claim, in essence, that the Commission does not give sufficient reasons for its decision, first, not to hold liable certain carriers involved in the single and continuous infringement and, secondly, to find a different starting date for participation in the single and continuous infringement for the other incriminated carriers involved in the email exchanges of 13 and 14 December 1999.

753 The Commission disputes the applicants’ line of argument.

754 In that regard, first, as regards the Commission’s decision not to hold liable certain carriers involved in the infringement, it must be borne in mind that the Commission was under no obligation to set out in the contested decision the reasons why other carriers were not held liable for the single and continuous infringement. The obligation to state the reasons on which a measure is based cannot encompass an obligation for the institution from which it emanates to give reasons for the fact that it did not adopt other measures of a similar kind addressed to third parties (judgment of 8 July 2004, JFE Engineering v Commission , T‑67/00, T‑68/00, T‑71/00 and T‑78/00, EU:T:2004:221, paragraph 414 ).

755 In the present case, the applicants rely specifically on the Commission’s failure to explain why undertakings which were in a situation similar to their own were not held liable for the single and continuous infringement.

756 It follows that that line of argument cannot succeed.

757 Moreover, as regards the alleged infringement of the obligation to state reasons on account of the allegedly inconsistent treatment of the email exchange of 13 and 14 December 1999, it should be noted that, in recital 1169 of the contested decision, the Commission set 13 December 1999 as the starting date of the applicants’ participation in the infringement. In the same recital, it set the starting date for the participation of the two other incriminated carriers involved in the email exchange of 13 and 14 December 1999, respectively, as 21 September 2000 and 14 December 1999.

758 As stated in paragraph 749 above, it is apparent from the contested decision that those dates correspond, for each of the three incriminated carriers involved in the exchange of emails of 13 and 14 December 1999, to the dates of the first incriminating emails they sent. In recital 1148 of the contested decision, the Commission identified those emails. As far as the applicants are concerned, these are the emails referred to in recitals 135 and 790 to 792 of the contested decision. As regards the two other incriminated carriers involved in the email exchanges of 13 and 14 December 1999, these are the emails referred to, respectively, in recitals 161 and 717 to 720 of the contested decision and recitals 135 and 773 to 777 of the contested decision.

759 Consequently, the Court must reject as unfounded the claim that the Commission gave insufficient reasons for its decision to set a different starting date for participation in the infringement for the three incriminated carriers which were involved in the email exchanges of 13 and 14 December 1999.

760 It follows from the foregoing that the present part of the plea must be rejected and, consequently, the fourth plea must be rejected in its entirety.

(a) The first part of the plea, alleging errors in the calculation of the value of sales

762 The applicants claim that the Commission infringed point 13 of the 2006 Guidelines by including, in the value of sales, some of their sales which were not related, directly or indirectly, to the single and continuous infringement. This concerns, first, sales on non-EU EEA-Switzerland routes, secondly, sales that took place ‘outside the EEA’, thirdly, sales on routes unrelated to the ‘handful of routes’ on which the applicants participated in local and isolated incidents and, fourthly, amounts linked to price components of freight services other than the FSC and the SSC.

763 Point 13 of the 2006 Guidelines is worded as follows:

‘In determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA. It will normally take the sales made by the undertaking during the last full business year of its participation in the infringement.’

764 As is apparent from the case-law, that point pursues the objective of adopting as the starting point for the setting of the fine imposed on an undertaking an amount which reflects the economic significance of the infringement and the relative size of the undertaking’s contribution to it (judgments of 12 November 2014, Guardian Industries and Guardian Europe v Commission , C‑580/12 P, EU:C:2014:2363, paragraph 57 , and of 28 June 2016, Portugal Telecom v Commission , T‑208/13, EU:T:2016:368, paragraph 237 ).

765 Consequently, while the concept of the ‘value of sales’ referred to in point 13 of the 2006 Guidelines admittedly cannot extend to encompassing sales made by the undertaking in question which do not come within the scope of the alleged cartel, it would, however, be contrary to the goal pursued by that provision if that concept were to be understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel (judgments of 11 July 2013, Team Relocations and Others v Commission , C‑444/11 P, not published, EU:C:2013:464, paragraph 76 , and of 1 February 2018, Panalpina World Transport (Holding) and Others v Commission , C‑271/16 P, not published, EU:C:2018:59, paragraph 30 ).

766 Such a limitation would, moreover, have the effect of artificially minimising the economic significance of the infringement committed by a particular undertaking since the mere fact that a limited amount of direct evidence of sales actually affected by the cartel had been found would lead to the imposition of a fine which bore no actual relation to the scope of application of the cartel in question. Such a reward for being secretive would also adversely affect the objective of the effective investigation and sanctioning of infringements of Article 101 TFEU and, therefore, cannot be permitted (judgment of 11 July 2013, Team Relocations and Others v Commission , C‑444/11 P, not published, EU:C:2013:464, paragraph 77 ).

767 It is in the light of those considerations that the four errors which the applicants claim vitiate the calculation of the value of sales in the contested decision must be analysed.

(b) The second part of the plea, alleging errors in the assessment of the gravity of the single and continuous infringement

824 The applicants claim that the Commission infringed Article 23(3) of Regulation No 1/2003 and points 19 and 20 of the 2006 Guidelines by applying an excessive gravity factor of 16%. According to the applicants, the Commission did not take account of all the relevant circumstances of the present case when determining the gravity of the single and continuous infringement. In particular, the Commission failed to take account of the applicants’ individual liability.

825 The applicants put forward, in essence, five complaints in support of that claim.

826 In the first place, the Commission wrongly failed to take into account the fact that the single and continuous infringement did not cover the entire price of the services in question and that the coordination of two (minor) elements of the total price, with no demonstrated effect on the total price, is plainly less grave than the coordination of the entire price, with proven effects on the market.

827 In the second place, the gravity factor of 16% applied by the Commission represents between 45 and 320% of the value of the surcharges concerned and thus exceeds the maximum threshold of 30% referred to in point 21 of the 2006 Guidelines. The surcharges, taken together, represented annually between 5 and 35% of the total value of concerned sales between February 2000 and February 2006.

828 In the third place, in recital 1199 of the contested decision, the Commission assumed, without any justification, that the single and continuous infringement had operated ‘to the detriment of … customers and ultimately the general public’.

829 In the fourth place, the application of the same gravity factor to all the addressees of the contested decision is contrary to the principle of individual punishment and the principle of proportionality. The 10% reduction granted to the applicants on account of mitigating circumstances in recital 1259 of the contested decision does not fully reflect the difference between the applicants’ situation and that of the other incriminated carriers.

830 In the fifth place, the conduct of the applicants was outside the core group and was generally limited to coordination complying with the ASAs in third countries and cooperation in the context of alliances. That conduct was not secret, was mostly made public by publication in newspapers or on the internet and was submitted to or approved by competition authorities.

831 The Commission disputes the applicants’ line of argument.

832 Under Article 23(3) of Regulation No 1/2003, in fixing the amount of the fine, regard is to be had inter alia to the gravity of the infringement.

833 Points 19 to 23 of the 2006 Guidelines read as follows:

‘19. The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement.

20. The assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case.

21. As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales.

22. In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.

23. Horizontal price-fixing, market-sharing and output-limitation agreements, which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.’

834 According to the case-law, a horizontal agreement by which the undertakings concerned agree not on the total price but on one element thereof constitutes a horizontal price-fixing agreement within the meaning of point 23 of the 2006 Guidelines and is therefore among the most harmful restrictions of competition (see, to that effect, judgment of 29 February 2016, UTi Worldwide and Others v Commission , T‑264/12, not published, EU:T:2016:112, paragraphs 277 and 278 ).

835 It follows that, as the Commission pointed out in recital 1208 of the contested decision, such an agreement generally merits a gravity factor at the higher end of the scale of 0 to 30% referred to in point 21 of the 2006 Guidelines.

836 According to the case-law, a gravity factor which is significantly lower than the upper limit of that scale, is highly favourable to an undertaking which is party to such an agreement (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, paragraph 125 ) and may even be warranted in view of the very nature of the infringement (see judgment of 26 September 2018, Philips and Philips France v Commission , C‑98/17 P, not published, EU:C:2018:774, paragraph 103 and the case-law cited).

837 In recital 1199 of the contested decision, the Commission specifically considered that the ‘agreements and/or concerted practices to which [the contested decision] relates concerned the fixing of various elements of the price’.

838 The Commission was thus entitled, in recitals 1199, 1200 and 1208 of the contested decision, to characterise the conduct at issue as a horizontal price-fixing agreement or practice, even though it ‘did not cover the entire price for the services in question’.

839 The Commission was therefore entitled to conclude, in recital 1208 of the contested decision, that the agreements and practices at issue were among the most harmful restrictions of competition and, accordingly, merited a gravity factor ‘at the higher end of the scale’.

840 The gravity factor of 16% which the Commission adopted in recital 1212 of the contested decision, which was significantly lower than the upper limit of the scale referred to in point 21 of the 2006 Guidelines, could therefore have been warranted in view of the very nature of the single and continuous infringement.

841 However, it must be observed that, as is apparent from recitals 1209 to 1212 of the contested decision, the Commission did not rely solely on the nature of the single and continuous infringement in order to set the gravity factor at 16%. The Commission thus referred in that decision to the combined market shares of the incriminated carriers worldwide and on intra-EEA and EEA-third country routes (recital 1209), to the geographic scope of the cartel at issue (recital 1210) and to the implementation of the agreements and practices at issue (recital 1211).

842 However, the applicants do not dispute, in the context of the present part of the plea, the merits of those factors for the purposes of setting the gravity factor.

843 In those circumstances, the applicants cannot claim that a gravity factor of 16% was unlawful.

844 None of the applicants’ arguments can call that conclusion into question.

845 In the first place, in so far as the applicants submit that the Commission should have taken account of the allegedly public nature of their actions, it must be observed that that argument has no basis in law or in fact. In law, it should be borne in mind that the secret nature of a cartel is indeed a factor liable to exacerbate its gravity. However, point 23 of the 2006 Guidelines does not make classification of an infringement as one of the most harmful competition restrictions subject to its being secret. That point merely states that horizontal price-fixing agreements, which are, by their very nature, among the most harmful restrictions of competition, ‘are usually secret’. It follows that the secret nature of an infringement is not an essential condition for it to be classified as harmful within the meaning of point 23 of the 2006 Guidelines and for it to be penalised accordingly (see, to that effect and by analogy, judgment of 14 December 2006, Raiffeisen Zentralbank Österreich and Others v Commission , T‑259/02 to T‑264/02 and T‑271/02, EU:T:2006:396, paragraph 252 ).

846 Therefore, even if it were to be established, the secret nature of the applicants’ conduct is not such as to call into question the lawfulness of the gravity factor applied in recital 1212 of the contested decision.

847 In fact, it must be observed, as noted by the Commission, that the applicants did not merely participate in public conduct. On the contrary, they participated in secret conduct, a number of which even show an active desire for concealment. In recital 144 of the contested decision, the Commission refers to an exchange of internal emails of January 2000 in which an employee of the applicants told his colleagues to ‘make sure not to refer to other carriers [in a reply to a letter from the Finnish Forwarders Association], as this [could] be a problem with anti-trust watching authorities’ (see paragraph 400 above).

848 In the second place, in so far as the applicants rely on the absence of proven effects of the single and continuous infringement and on the fact that the Commission failed to prove that it had operated ‘to the detriment of … customers and ultimately the general public’, it must be borne in mind that the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3) provided that, in assessing the criterion of the infringement’s gravity, account had be taken of, inter alia, its actual impact on the market, where this could be measured.

849 However, that requirement no longer appears in the 2006 Guidelines, which are applicable in the present case. Accordingly, those guidelines do not require the Commission to take into consideration the actual impact of the infringement on the market in order to determine the percentage of the value of sales used for gravity in accordance with points 19 to 24 of those guidelines (see, to that effect, judgment of 16 June 2015, FSL Holdings and Others v Commission , T‑655/11, EU:T:2015:383, paragraph 539 ).

850 Nor does the case-law require it to do so, at least with regard to a restriction of competition ‘by object’.

851 The gravity of an infringement of competition rules must be determined by reference to numerous factors. Those factors include, in particular, the particular circumstances of the case, its context and the deterrent effect of fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up (order of 25 March 1996, SPO and Others v Commission , C‑137/95 P, EU:C:1996:130, paragraph 54 , and judgment of 28 June 2005, Dansk Rørindustri and Others v Commission , C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 241 ).

852 The effects on the market may indeed be taken into account amongst those factors, but they are crucial only when one is dealing with agreements, decisions or concerted practices which do not directly have as their object the prevention, restriction or distortion of competition and which are not therefore liable to fall within the scope of application of Article 101 TFEU except as a result of their actual effects (judgment of 12 December 2018, Servier and Others v Commission , T‑691/14, under appeal, EU:T:2018:922, paragraph 1809 ).

853 If it were otherwise, the Commission, at the stage of calculating the amount of the fine, would be under an obligation to which, according to settled case-law, it is not subject for the purposes of applying Article 101 TFEU where the infringement in question has an anticompetitive object (see judgment of 3 September 2009, Prym and Prym Consumer v Commission , C‑534/07 P, EU:C:2009:505, paragraph 64 and the case-law cited).

854 In recital 903 of the contested decision, the Commission classified the conduct at issue as a restriction of competition ‘by object’. Contrary to the applicants’ submission, it was therefore not required to take into consideration the actual impact of the single and continuous infringement on the market.

855 The fact remains that, if the Commission considers it appropriate, for the purposes of calculating the amount of the fine, to take account of the actual impact of the infringement on the market, it cannot rely on a mere presumption, but must provide specific, credible and adequate evidence with which to assess what actual influence the infringement may have had on competition in that market (judgment of 3 September 2009, Prym and Prym Consumer v Commission , C‑534/07 P, EU:C:2009:505, paragraph 82 ).

856 Similarly, although the Commission is not required, for the purpose of setting fines, to establish that the infringement in question conferred an unlawful advantage on the undertakings concerned, or to take into consideration, where applicable, the absence of such an advantage, the assessment of the unlawful gains from the infringement may be relevant if the Commission relies precisely on such gains for the purpose of setting the gravity factor (see, to that effect, judgment of 15 March 2000, Cimenteries CBR and Others v Commission , T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraphs 4881 and 4882 ).

857 In recital 1199 of the contested decision, when setting the gravity factor, the Commission found that the agreements and practices at issue had ‘operated to the benefit of the [incriminated carriers] and to the detriment of their customers and ultimately the general public’. Yet the Commission did not refer to any evidence in support of that finding.

858 It should be observed, however, that the finding at issue is not an independent ground that the Commission relied on in order to assess the gravity of the single and continuous infringement, but one of a number of considerations which it took into account in assessing the nature of that infringement in recitals 1199 to 1208 of the contested decision. That consideration does not constitute the necessary basis for the conclusion that the infringement concerned the fixing of elements of the price of freight services and was, therefore, such as to justify a gravity factor at the lower end of the ‘scale’ referred to in point 23 of the 2006 Guidelines for the most serious restrictions of competition. Accordingly, the present argument is not such as to call into question the assessment of the nature of the infringement at issue as set out in the contested decision. Consequently, since the applicants have failed to establish that the gravity factor was not justified in the light of the other factors taken into account in the contested decision (see paragraphs 841 and 842 above), the present argument must be rejected.

859 In the third place, as regards the complaint that the gravity factor applied represents between 45 and 320% of the value of the surcharges concerned and thus exceeds the maximum threshold of 30% of the value of sales referred to in point 21 of the 2006 Guidelines, it is sufficient to observe that the applicants rely on the incorrect premiss that the Commission should have taken into account only the amount of the surcharges rather than the full price of the services in question for the purposes of setting the value of sales (see paragraphs 809 to 816 above).

860 In the fourth place, as regards the Commission’s alleged failure to take account of the individual contribution of each of the incriminated carriers for the purposes of setting the gravity factor, it should be borne in mind that the factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the agreement, decision or concerted practice, the profit which they were able to derive from it, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union (see judgment of 26 January 2017, Roca Sanitario v Commission , C‑636/13 P, EU:C:2017:56, paragraph 49 and the case-law cited).

861 It should be borne in mind, however, that the taking into account of differences between the conduct of the various undertakings that participated in the same infringement need not necessarily occur when setting the gravity factor, but may occur at another stage in the setting of the fine, such as when the basic amount of the fine is adjusted in the light of mitigating or aggravating circumstances under points 28 and 29 of the 2006 Guidelines (see, to that effect, judgment of 26 January 2017, Roca v Commission , C‑638/13 P, EU:C:2017:53, paragraph 67 and the case-law cited).

862 In the context of determining the gravity factor, in recital 1208 of the contested decision, the Commission stated that it would take into account the ‘fact that certain carriers may have played a minor … role … as a possible mitigating circumstance’. Thus, it took the view, in recitals 1258 and 1259 of that decision, that the applicants’ participation in the single and continuous infringement was limited in scope and, consequently, it granted them a 10% reduction in the basic amount of the fine on account of mitigating circumstances.

863 It follows that the Commission did not err in not taking into account the applicants’ limited participation in the single and continuous infringement also when setting the gravity factor. As regards the question whether the 10% reduction in the amount of the fine which the applicants received on account of their limited participation in the single and continuous infringement in the context of the assessment of mitigating circumstances was sufficient, it overlaps with the fifth part of the present plea and will be examined in the context of that part.

864 The present part of the plea must therefore be rejected.

(c) The third part of the plea, alleging errors in the assessment of the duration of the single and continuous infringement

865 The applicants complain that the Commission erred in assessing the duration of the infringement.

866 The arguments put forward by the applicants in support of the present part of the plea overlap with those on which they rely in support of the third plea. As is apparent from paragraphs 353 to 358 above, that line of argument is unfounded.

867 The present part of the plea must therefore be rejected.

(d) The fourth part of the plea, alleging errors in the increase of the basic amount on account of repeated infringement

868 The applicants claim that the Commission erred in increasing by 50% the basic amount of the fine imposed on SAS Consortium and SAS Cargo to reflect the fact that SAS Consortium had been an addressee of Commission Decision 2001/716/EC of 18 July 2001 relating to a proceeding pursuant to Article [101 TFEU] and Article 53 of the EEA Agreement (case COMP.D.2 37.444 – SAS/Maersk Air and Case COMP.D.2 37.386 – Sun-Air v SAS and Maersk Air) (OJ 2001 L 265, p. 15).

869 According to the applicants, Decision 2001/716, first, concerned an infringement which is neither identical nor similar to that described in the contested decision and, secondly, cannot justify an increase in the amount of the fine in respect of conduct prior to 18 July 2001, the date on which Decision 2001/716 was adopted.

870 In addition, the applicants claim that they received assurances from the Danish competition authority in 2002 that the EU authorities would not be in a position to take action against tariffs for freight transport approved or coordinated by public authorities and applicable to EU-third country routes. The applicants also maintain that the Commission, through its decision-making practice, encouraged the creation of alliances between carriers including price coordination.

871 As follows from point 28 of the 2006 Guidelines and from the case-law of the Court of Justice, the aggravating circumstance of repeated infringement is characterised by the continuation or repetition by an undertaking of the same or a similar infringement after the Commission or a national competition authority has made a finding that that undertaking had infringed Article 101 or 102 TFEU (see judgment of 5 March 2015, Commission and Others v Versalis and Others , C‑93/13 P and C‑123/13 P, EU:C:2015:150, paragraph 87 and the case-law cited).

872 According to the case-law, infringements are similar, or of the same type, for the purposes of establishing a finding of repeated infringement, if they both consist of an infringement of the same provisions of the TFEU (see, to that effect, judgments of 12 December 2007, BASF and UCB v Commission , T‑101/05 and T‑111/05, EU:T:2007:380, paragraph 64 ; of 6 May 2009, Outokumpu and Luvata v Commission , T‑122/04, EU:T:2009:141, paragraph 56 ; and of 30 September 2009, Hoechst v Commission , T‑161/05, EU:T:2009:366, paragraph 147 ).

873 The Commission taking repeated infringement into account meets the imperative of punishing repeated infringements of the competition rules by the same undertaking (judgment of 17 June 2010, Lafarge v Commission , C‑413/08 P, EU:C:2010:346, paragraph 61 ) and is intended to induce undertakings which have demonstrated a tendency towards infringing the competition rules to change their conduct (judgment of 8 February 2007, Groupe Danone v Commission , C‑3/06 P, EU:C:2007:88, paragraph 39 ).

874 The finding and the appraisal of the specific features of a repeated infringement come within the Commission’s discretion in relation to the choice of factors to be taken into consideration for the purpose of determining the amount of fines (judgment of 8 February 2007, Groupe Danone v Commission , C‑3/06 P, EU:C:2007:88, paragraph 38 ). In exercising that power, the Commission may, in each individual case, take into consideration the indicia which confirm an undertaking’s tendency to infringe competition rules, including, for example, the time that has elapsed between the infringements in question (judgment of 8 February 2007, Groupe Danone v Commission , C‑3/06 P, EU:C:2007:88, paragraph 39 ). According to the case-law, the Commission does not disregard the limits of that power by finding that the aggravating circumstance of repeated infringement applies in a case where the second infringement, which began before the establishment of the first infringement, did not mainly take place before that finding (see, to that effect, judgment of 8 July 2008, BPB v Commission , T‑53/03, EU:T:2008:254, paragraphs 394 to 396 ).

875 It is in the light of the abovementioned considerations and principles that the present part of the plea must be examined.

876 In the first place, as regards the alleged lack of similarity between the single and continuous infringement and the market-sharing agreement penalised by Decision 2001/716, it must be noted that those infringements both concern a horizontal agreement which the Commission considered infringed Article 101 TFEU. Those infringements must therefore be regarded as similar for the purpose of establishing the existence of repeated infringement.

877 That conclusion is not called into question by Commission Decision 2005/503/EC of 29 September 2004 relating to a proceeding under Article [101 TFEU] (case COMP/C.37.750/B2 – Brasseries Kronenbourg – Brasseries Heineken) (OJ 2005 L 184, p. 57), relied on by the applicants, in which the Commission considered that a previous price agreement was not of the same type as the ‘armistice’ agreement at issue in that decision. It is settled case-law that the Commission’s previous decision-making practice does not in itself serve as a legal framework for the fines imposed in competition matters, since that framework is defined solely in Regulation No 1/2003 and in the 2006 Guidelines and that it has not, in any event, been established that the facts of the case giving rise to that decision were comparable to those of the present case.

878 In the second place, as regards the Commission’s failure to distinguish and exclude, in the application of the increase of 50% in the basic amount for repeated infringement, the period of the single and continuous infringement which preceded the adoption of Decision 2001/716, first of all, it must be observed that, in accordance with the case-law referred to in paragraph 871 above, the aggravating circumstance of repeated infringement covers a situation where the second infringement is continued after the finding of the first infringement, which presupposes that it began before the first infringement was found. That applies, in the present case, to the participation of SAS Consortium and SAS Cargo in the single and continuous infringement, respectively, from 13 December 1999 and 1 June 2001, that is to say, before 18 July 2001, the date on which Decision 2001/716 was adopted.

879 Next, in recital 1244 of the contested decision, the Commission was justified, when assessing the characteristics of repeated infringement, in taking account of the fact that the applicants had in the present case continued a similar infringement for almost five years after the adoption of Decision 2001/716. That shows, first, that most of the single and continuous infringement took place after, and not before, the first finding of infringement, thereby distinguishing the facts of the present case from those at issue in the judgment of 11 March 1999, Thyssen Stahl v Commission (T‑141/94, EU:T:1999:48 ), relied on by the applicants. Secondly, it attests to the applicants’ tendency not to draw the appropriate conclusions from a finding that they had infringed the competition rules (see, to that effect, judgment of 8 July 2008, Lafarge v Commission , T‑54/03, not published, EU:T:2008:255, paragraph 727 ).

880 Last, it should be noted that point 28 of the 2006 Guidelines does not, as regards the method of increasing the basic amount on account of repeated infringement, distinguish according to whether the repeated infringement consists in the repetition or continuation of an infringement, and states only that ‘the basic amount will be increased by up to 100% for each infringement established’. By applying an increasing coefficient for repeated infringement to the basic amount taken as a whole, the Commission therefore complied with the indicative rules of conduct which it has imposed on itself and from which it cannot, in principle, depart (see, to that effect, judgment of 11 July 2013, Ziegler v Commission , C‑439/11 P, EU:C:2013:513, paragraph 60 ). Nevertheless, although point 28 of the 2006 Guidelines does not provide for the possibility of adjusting the basis of assessment for the increase on account of repeated infringement in order to take account, where appropriate, of the relative part of the infringement period that preceded the first finding of infringement, it does not preclude the increase percentage from reflecting such a consideration.

881 In the light of the circumstances of the case, as recalled in particular in paragraph 879 above, the rules governing repeated infringement in the event of the finding of a similar infringement (see paragraphs 878 and 880 above) and the need for deterrence underpinning the application of the aggravating circumstance of repeated infringement (see paragraph 873 above), it must be held that the Commission did not err in applying an increase of 50% to the basic amount of the fine imposed on SAS Cargo and SAS Consortium.

882 That conclusion is not called into question by the applicants invoking an infringement of the principle of the presumption of innocence, in support of which they have not adduced any arguments.

883 In the third place, the applicants rely on assurances received from the Danish competition authority. That argument has already been examined and rejected in the context of the third plea (paragraph 682 above).

884 As regards the Commission’s decision-making practice relating to alliances between carriers including price coordination, it should be borne in mind that the conduct ascribed to the applicants did not fall exclusively within the ambit of the legitimate objectives of the various alliances to which they belonged. The conduct that did relate to such objectives, apart from that described in recital 517 of the contested decision, was not relied on against the applicants (see paragraph 332 above).

885 It follows that the present part must be rejected.

(e) The fifth part of the plea, alleging errors in the consideration of mitigating circumstances

886 The applicants claim, in essence, that the Commission infringed point 29 of the 2006 Guidelines by failing to consider all the relevant factors in its assessment of mitigating circumstances and by granting them an insufficient reduction in the amount of the fine on account of the mitigating circumstances which it took into account. In that regard, the applicants note that SAS Cargo’s participation in the infringement was limited, that the coordination of surcharges was in many cases required by the regulatory regimes in third countries, that the creation of alliances between carriers including price coordination was a practice encouraged by the Commission, and that the 2002 decision of the Danish competition authority had given rise to a legitimate expectation that SAS Cargo’s compliance with the ASAs in third countries did not fall within the scope of EU competition rules.

887 The Commission disputes the applicants’ line of argument.

888 In that regard, it should be borne in mind that point 27 of the 2006 Guidelines provides that, in setting the amount of the fine, the Commission may take into account circumstances that result in an increase or decrease in the basic amount, on the basis of an overall assessment which takes account of all the relevant circumstances.

889 Point 29 of the 2006 Guidelines provides that the basic amount of the fine may be reduced where the Commission finds that mitigating circumstances exist. That point contains an indicative and non-exhaustive list of five types of mitigating circumstances which may be taken into account, including the substantially limited nature of the involvement of the undertaking in question in the infringement and the authorisation or encouragement of the anticompetitive conduct in question by public authorities or by legislation.

890 First, in recital 1263 of the contested decision, the Commission found that there was no regulatory regime which required the incriminated carriers to collude on their fares. However, it found, in recitals 1264 and 1265 of that decision, that some regulatory regimes had encouraged the incriminated carriers to engage in anticompetitive conduct and, consequently, granted them the general reduction of 15%, in accordance with point 29 of the 2006 Guidelines.

891 It should be noted that the applicants’ arguments challenging that assessment are the same as those which they put forward in support of the sixth part of the third plea (see paragraphs 505 to 507 above). The applicants maintain that the general reduction of 15% should have been greater, on the ground that ‘the laws and administrative practices’ of the countries in question ‘more than simply “[encouraged]” the coordination of surcharges: in many cases this was required’.

892 In that regard, in the first place, it should be observed that the relevant legislation either encouraged the conduct at issue on EEA-third country routes, in which case a reduction in the amount of the fine may be justified under point 29 of the 2006 Guidelines (see paragraphs 888 to 889 above), or required it, in which case no infringement of the competition rules could have been established, or any penalty imposed in respect of that conduct (see, to that effect, judgment of 11 November 1997, Commission and France v Ladbroke Racing , C‑359/95 P and C‑379/95 P, EU:C:1997:531, paragraph 33 and the case-law cited).

893 In so far as the applicants submit, in essence, that a number of regulatory regimes required coordination, their line of argument must be rejected as ineffective in so far as, even if it were well founded, it would vitiate the finding of an infringement, and not the application of point 29 of the 2006 Guidelines, which is at issue in the context of the present part of the plea.

894 In the second place and in any event, it should be noted that the applicants’ line of argument is based on an incorrect analysis of the regulatory regimes at issue. As was held in paragraphs 509 to 563 above, except as regards the coordination of the FSC in Thailand between 20 July 2005 and 14 February 2006, the applicants have failed to establish that their conduct in third countries was the result of State coercion. As regards that coordination, the applicants have established the existence of State coercion. That coordination does not therefore form part of the single and continuous infringement and cannot therefore result in a penalty for the applicants. Consequently, it cannot be taken into account as part of the mitigating circumstance regarding the impact of the rules of third countries on their conduct.

895 As regards the applicants’ reference to Commission Decision C(2008) 5955 final of 15 October 2008 relating to a proceeding under Article [101 TFEU] (Case COMP/39188 – Bananas), it is sufficient to note that the mere fact that the Commission has in its previous decisions granted a certain rate of reduction for specific conduct does not imply that it is required to grant the same proportionate reduction when assessing similar conduct in a subsequent administrative procedure (see judgment of 6 May 2009, KME Germany and Others v Commission , T‑127/04, EU:T:2009:142, paragraph 140 and the case-law cited). The applicants cannot therefore rely on the reduction in the amount of the fines granted in that other case.

896 In those circumstances, it must be held that the Commission did not err in setting the general reduction of 15%.

897 Secondly, in recitals 1258, 1259, 1268, 1271, 1274, 1278 and 1279 of the contested decision, the Commission rejected the applicants’ arguments based on their allegedly passive role in the single and continuous infringement, their legitimate expectations arising from a decision of the Danish competition authority of 2002 and the limited nature of the effects and implementation of the single and continuous infringement. By contrast, in recital 1258 of the contested decision, the Commission granted the applicants, Air Canada and Lan Cargo a reduction of 10% of the basic amount of the fine on account of their substantially limited involvement in that infringement.

898 The applicants claim that those assessments are vitiated by three errors, which the Court will examine in turn.

899 First, as regards the claim that the 10% reduction in the basic amount of the fine granted to the applicants on account of their limited participation in the single and continuous infringement was insufficient, it should be borne in mind that, in recital 1258 of the contested decision, the Commission, in assessing the limited nature of the participation in the single and continuous infringement of the applicants, Lan Airlines and Air Canada, took account of the fact that they had ‘not [participated] in all elements of th[at] infringement’.

900 The degree of participation in the single and continuous infringement of the applicants, Lan Airlines and Air Canada is described in recitals 882 and 883 of the contested decision. In those recitals, the Commission found that the applicants, Lan Airlines and Air Canada had participated directly in only one or two of the three elements of the single and continuous infringement, but that they could also be held liable for those aspects in which they had not directly participated on the ground that they were aware of them or could reasonably have foreseen them and were prepared to take the risk.

901 In paragraphs 698 to 712 above, it has been held that the Commission was wrong to ascribe to the applicants liability for the element of the single and continuous infringement relating to the refusal to pay commission. The Commission therefore overestimated the degree of their participation in the single and continuous infringement and, accordingly, rendered the contested decision unlawful in so far as it did not grant them a reduction of more than 10% in the basic amount of the fine on account of their limited participation in the single and continuous infringement.

902 Secondly, the argument relating to the decision-making practice designed to exempt alliances between carriers has already been examined and rejected in the context of the third part of the present plea (see paragraphs 367 and 368 above).

903 Thirdly, the complaint relating to the legitimate expectations which the applicants derived from a decision of the Danish competition authority of 2002 has already been examined and rejected in paragraph 682 above.

904 The present part of the plea must therefore be rejected, subject to the error found in paragraph 901 above as regards the 10% reduction granted to the applicants on account of their limited participation in the single and continuous infringement.

905 It follows from the foregoing that the present plea must be rejected, subject to the error found in paragraph 901 above and the error found in paragraph 774 above relating to the inclusion, in the value of sales, of revenues from freight services that the applicants had generated on non-EU EEA-Switzerland routes.

906 In the light of all the foregoing considerations, it is appropriate to uphold the sixth part of the third plea in so far as it concerns routes from Thailand to the EEA between 20 July 2005 and 14 February 2006 as regards the element of the single and continuous infringement relating to the FSC, the ninth part of the third plea in so far as it concerns the refusal to pay commission, the first part of the fifth plea in so far as it relates to the inclusion, in the value of sales, of turnover relating to non-EU EEA-Switzerland routes, and the fifth part of the fifth plea in so far as the Commission did not grant a reduction in the basic amount of the fine of more than 10% on account of the applicants’ limited participation in the single and continuous infringement.

907 Consequently, Article 1(1)(o), (p) and (q), (2)(o) and (p), (3)(o) and (p) and (4)(o), (p) and (q) of the contested decision must be annulled in so far as it finds that the applicants participated in the element of the single and continuous infringement relating to the refusal to pay commission. Article 1(2)(o) and (p) and (3)(o) and (p) of the contested decision must also be annulled in so far as it finds an infringement of Article 101 TFEU and Article 53 of the EEA Agreement on routes from Thailand to the EEA between 20 July 2005 and 14 February 2006 as regards the element relating to the FSC.

908 It cannot, however, be held that those illegalities are such as to require the contested decision to be annulled in its entirety. Although the Commission made an error of assessment in ascribing to SAS and SAS Cargo the single and continuous infringement as regards the element relating to the refusal to pay commission and as regards the element relating to the FSC in so far as it concerns routes from Thailand to the EEA between 20 July 2005 and 14 February 2006, it must be held that it has not been established, in the present action, that the Commission erred in finding that the applicants had participated in that infringement.

909 Lastly, Article 3(n) to (r) of the contested decision must be annulled on the ground that it takes into account, for the purpose of calculating the fine, first, a reduction of 10% granted to the applicants on account of their limited participation in the single and continuous infringement and, secondly, as regards the value of sales, revenue from freight services that the applicants generated on non-EU EEA-Switzerland routes.

910 The remainder of the claim for annulment must be rejected.