Short Reads

Court of Justice dismisses appeal of British Airways in Air Cargo case

Court of Justice dismisses appeal of British Airways in Air Cargo case

Court of Justice dismisses appeal of British Airways in Air Cargo case

01.12.2017 NL law

On 14 November 2017, the Court of Justice dismissed the appeal by British Airways (BA) and upheld the fine for its participation in an infringement in the air cargo sector. It ruled that the General Court (GC) had been correct in not granting a full annulment of the infringement decision, as BA had only sought a partial annulment before the GC.

In 2010, BA and several other carriers were fined for an infringement in the air cargo sector. On appeal before the GC, most addressees of the fining decision requested a full annulment. BA, however, only sought a partial annulment. On 16 December 2015, the GC annulled the decision in its entirety in relation to the carriers that had asked for full annulment because the grounds of the decision were inconsistent with the operative part [see our January 2016 Newsletter]. The GC had raised this issue of its own motion as it concerned a matter of public policy. BA, however, only obtained a partial annulment of the fining decision as it had only requested a partial annulment.

BA subsequently appealed the GC's judgment before the Court of Justice, arguing that the GC should have gone beyond BA's request for a partial annulment and should have ordered a full annulment instead. In particular, BA was of the opinion that the principle of non ultra petita (i.e. the principle that the European Courts cannot go beyond the form of order sought by the appellant) did not apply in this situation as the GC had found of its own motion the inconsistencies in the fining decision as matter of public policy. The Court of Justice, however, disagreed with BA. It stated that "it is the parties that take the initiative in pursuing the case and delimiting its subject matter, inter alia by identifying in the form of order sought the act, or part of the act, which they intend to submit to judicial review". The fact that the GC can raise a public policy argument of its own motion in its substantive examination of a decision does not mean that the GC can amend the scope of the dispute on the same basis.

This judgment is not the end of the Air Cargo case. In 2016, after the annulment of the original fining decision by the GC, the European Commission adopted a second decision against the carriers. New appeal proceedings against this second decision are currently pending before the GC.

This article was published in the Competition Law Newsletter of December 2017. Other articles in this newsletter:

  1. Court of Justice rules on the application of competition law to agricultural producer organisations
  2. National courts may declare that a practice infringes competition law after it was the subject of a commitment decision
  3. General Court partially annuls the Commission's ICAP decision (in the YIRD case)

Team

Related news

04.01.2019 NL law
Guess what, online branding restrictions are on the Commission's radar

Short Reads - Companies are probably aware of the Commission's eagerness to clamp down on online resale price maintenance and geo-blocking restrictions. The recent fine for vertical restraints by clothing company Guess marks a new dot on the Commission's radar. Restrictions on retailers using a supplier's brand names for online search advertising purposes are just as much a no-go.

Read more

08.01.2019 EU law
Belgium's Energy & Climate Plan - What is the legislative framework for climate policy in Belgium?

Articles - On 19 December 2018, Belgium adopted the first version of the National Energy & Climate Plan, which is a compilation of three individual climate plans from each of Belgium’s regions. It contains specific measures aiming to reduce CO2 emissions in Belgium by 35% by 2030 and to increase the share of renewable energy to 18.3%. The Plan will be submitted to the European Commission and, at the same time, presented to the population, stakeholders, parliaments, and neighboring countries.

Read more

04.01.2019 NL law
Partial fine reduction for Deutsche Telekom and Slovak Telekom for abuse of dominance

Short Reads - The General Court recently clarified that to establish a margin squeeze in the case of positive margins, the Commission needs to prove the exclusionary effects of the dominant company's pricing practices. It also indicated that in cases of refusal to grant access, it is not always necessary to establish the indispensability of the access.

Read more

04.01.2019 NL law
Walking the tightrope between data protection and EU investigations

Short Reads - Two recent publications confirm that it is possible for companies to cooperate with a European Commission investigation and still comply with the data protection rules. It is also possible for the Commission to deviate from certain data protection obligations in the interest of a competition law investigation. The tightrope between data protection and Commission investigations may not be as rigid as initially feared.

Read more

04.01.2019 NL law
General Court dismisses Canal+ appeal against pay-TV commitment decision

Short Reads - The General Court recently dismissed the appeal brought by Canal+ against the decision of the European Commission making the commitments of Paramount legally binding. In 2015, the Commission sent a Statement of Objections alleging that certain geo-blocking clauses in licensing agreements between film studios and pay-TV broadcasters had the object of restricting cross-border competition.

Read more

Our website uses cookies: third party analytics cookies to best adapt our website to your needs & cookies to enable social media functionalities. For more information on the use of cookies, please check our Privacy and Cookie Policy. Please note that you can change your cookie opt-ins at any time via your browser settings.

Privacy – en cookieverklaring