For over a decade, airlines have been subject to an EU Commission investigation and court proceedings for their involvement in an international airfreight cartel. This article provides an overview of the key elements of the case in the EU including the follow-on civil litigation.
From December 1999 to February 2006, major international airlines coordinated their pricing behaviour on the airfreight market in relation to fuel and security surcharges and refusing payment of commission on surcharges.
The alleged cartel was brought to light by Lufthansa under an application for immunity to the European Commission on 7 December 2005. Lufthansa’s immunity application prompted the European Commission to open an investigation into major airlines across the globe in February 2006 which concluded with a Decision on 9 November 2010 imposing fines on eleven airlines. The European Commission Decision’s concluded that the airlines conduct constituted a single complex and continuous infringement prohibited by Article 101 of the Treaty on the Functioning of the European Union, Article 53 of the European Economic Area Agreement and Article 8 of the Agreement Between the European Community and the Swiss Confederation on Air Transport.
On appeal, the EU General Court annulled the 2010 Decision on 16 December 2015 due to an inconsistency between the grounds and the operative part. The European Commission nonetheless re-adopted the decision on 17 March 2017 with fines on ten airlines (one airline having paid the original fine and not appealed).
This complex litigation was extended to several EU national civil courts and currently there are ongoing private claims for damages against British Airways plc along with other Addressees of the EU Commission’s decision from Emerald Supplied Ltd. in the UK High Court and against KLM, Air France, Martinair et all in the Amsterdam District Court.