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

01.08.2019 NL law
General court dismisses all five appeals in the optical disk drives cartel

Short Reads - The General Court recently upheld a Commission decision finding that suppliers of optical disk drives colluded in bids for sales to Dell and HP by engaging in a network of parallel bilateral contacts over a multi-year period. The General Court rejected applicants' arguments regarding the Commission's fining methodology, including that the Commission ought to have provided reasons for not departing from the general methodology set out in its 2006 Guidelines.

Read more

14.08.2019 BE law
Verklaring van openbaar nut is geen "project" in de zin van de MER-regelgeving

Articles - In een recent arrest bevestigt de Raad van State dat "verklaringen van openbaar nut", bedoeld in artikel 10 van de wet van 12 april 1965 betreffende het vervoer van gasachtige produkten en andere door middel van leidingen niet onder het begrip "project" uit de project-MER-regelgeving valt. Of hetzelfde geldt voor elk type gelijkaardige administratieve toelating, is daarmee evenwel nog niet gezegd. Niettemin geeft de Raad met zijn arrest een belangrijk signaal dat niet elke mogelijke toelating onder de project-MER-regelgeving valt.

Read more

01.08.2019 NL law
Brand owners beware: Commission tough on cross-border sales restrictions

Short Reads - The European Commission recently imposed a EUR 6.2 million fine on Hello Kitty owner Sanrio for preventing its licensees from selling licensed merchandising products across the entire EEA. Sanrio is the second licensor (after Nike) to be fined for imposing territorial sales restrictions on its non-exclusive licensees for licensed merchandise. A third investigation into allegedly similar practices by Universal Studios is ongoing. The case confirms the Commission's determination to tackle these practices, regardless of type or form.

Read more

08.08.2019 BE law
Regulating online platforms: piece of the puzzle

Articles - The new Regulation no. 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services, applicable as of 12 July 2020, is another piece of the puzzle regulating online platforms, this time focussing on the supply side of the platforms.

Read more

01.08.2019 NL law
Call of duty: Commission must state reasons when straying from its guidelines

Short Reads - The European Commission has lost a second battle concerning its EUR 15 million fine imposed upon interdealer broker ICAP, this time before the European Court of Justice. The Court upheld the previous judgment of the General Court on the basis of the Commission's failure to state reasons concerning its fining methodology of cartel facilitator ICAP. This may lead to more reasoned Commission decisions in the future - deterrence of cartel behaviour does not justify keeping the methodology for setting the fines as a 'black box'.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring