On 1^st February 2018, the Court of Justice handed down its judgment on the fines imposed by the Commission in 2012, amounting to 169 million euro, on a number of companies for their participation in various agreements and concerted practices on the market for international air freight forwarding services between 2002 and 2007.

More specifically, the Commission found four different cartels. The first conduct concerned ‘new export system’ (NES) introduced by the UK authorities in 2002, which consisted in a pre-clearance system for exports from the UK to countries outside the European Economic Area. A group of freight forwarders agreed to introduce a surcharge for NES declarations. The second conduct concerned the ‘advanced manifest system’ (AMS), introduced after the terrorist attacks of 11 September 2001, to submit in advance data on goods that companies intend to ship to the United States. A number of freight forwarders coordinated the introduction of a surcharge applicable to the AMS service, for the electronic communication of the data concerned to the United States authorities. The third conduct saw the introduction of a ‘currency adjustment factor’ (CAF) to deal with a risk of a fall in profits owing to the decision of the People’s Bank of China in 2005 that it would no longer peg the Chinese currency (renminbi or RMB) to the United States dollar (USD). A number of international freight forwarders decided to convert all contracts with their customers into renminbi and to introduce a CAF surcharge, setting the amount. The last conduct investigated by the Commission was the ‘peak season surcharge’ (PSS), a cartel designed to protect the freight forwarders’ margins thanks to the application of a temporary rate adjustment factor in times of increased demand in the air freight forwarding sector.

A number of the companies concerned brought actions before the General Court for the annulment of the Commission’s decision or for a reduction in their respective fines. With its judgments of 29 February 2016, the General Court upheld the amount of the fines imposed on Kühne + Nagel International, Schenker, Deutsche Bahn and Others, Panalpina World Transport (Holding), Ceva Freight (UK) and EGL and it reduced the fine for UTi Worldwide, UTi Nederland and UTI Worldwide (UK). The aforementioned companies, with the exception of Ceva Freight (UK) and EGL and UTi Worldwide, UTi Nederland and UTI Worldwide (UK), decided to bring appeals in front of the Court of Justice. The Court, with its judgments in Cases C-261/16 P, C-263/16 P, C-264/16 P e C-271/16 P, upheld the fines and rejected all the arguments put forward by those companies, stating that the General Court was correct in holding that it is appropriate to base the calculation of the amount of the fines on the value of sales associated with freight forwarding services as a package of services on the trade routes concerned.

Davide Scavuzzo