EU’s top court upholds airfreight cartel fines, cuts penalty for SAS Cargo

The Court of Justice of the European Union has dismissed appeals brought by 12 airlines seeking to overturn or reduce fines imposed for their role in a global airfreight cartel, while partially upholding an appeal by SAS Cargo Group and lowering its penalty.

The ruling marks the latest chapter in a long-running competition case that began with a 2010 decision by the European Commission, which found that multiple carriers had participated in a pricing cartel between December 1999 and February 2006. The Commission concluded that the airlines coordinated fuel and security surcharges and refused to pay commission to freight forwarders on those surcharges, in breach of EU competition law, the EEA Agreement and the EU–Switzerland Air Transport Agreement.

From Annulment to Reaffirmation

The Commission’s original 2010 decision, which imposed fines totalling around €790 million, was annulled in whole or in part by the General Court due to deficiencies in its reasoning that risked undermining the airlines’ rights of defence.

In March 2017, the Commission adopted a revised decision correcting those defects and reimposed fines amounting to €776 million. Several airlines — including Martinair Holland, KLM, Cargolux, Air France-KLM, Air France, Lufthansa and Singapore Airlines — challenged that decision before the General Court. In March 2022, the General Court largely upheld the Commission’s findings, while reducing certain fines.

The airlines subsequently appealed to the Court of Justice.

Jurisdiction Over Inbound Freight Confirmed

In a series of 13 judgments delivered today, the Court of Justice rejected almost all of the airlines’ arguments.

A central issue concerned the Commission’s jurisdiction over airfreight services from third countries into the EU or European Economic Area (so-called “inbound freight”). The Court confirmed that the Commission was entitled to assert jurisdiction under the “qualified effects” test, which allows enforcement where conduct outside the EU produces foreseeable, immediate and substantial effects within it.

The Court found no legal error in the General Court’s conclusion that this test had been satisfied, reaffirming that EU competition law can extend to conduct implemented abroad if its market impact within the EU meets the required threshold.

Single and Continuous Infringement

The airlines also contested the characterisation of the conduct as a “single and continuous infringement.” The Court dismissed those arguments, holding that participation in a cartel over several years can be established even if direct evidence is not available for every specific period — provided that objective and consistent indicia support the finding.

Crucially, the Court reiterated that an airline may be held liable even for routes it did not itself operate, if it contributed to the cartel’s common objectives and was aware of the broader anti-competitive scheme pursued by other participants.

Limitation Period Argument Rejected

Several airlines sought to argue — for the first time on appeal — that certain conduct fell outside the limitation period for the Commission’s power to impose fines. The Court rejected this line of reasoning, stating that limitation pleas must be raised by the parties before the General Court and cannot be introduced for the first time on appeal. Nor is such a plea a matter of public policy that the court must examine of its own motion.

Partial Victory for SAS Cargo

The only substantive success came for SAS Cargo Group. The Court found that the General Court had erred in recalculating its fine on the basis of purported equal treatment with other airlines. Specifically, the General Court had assumed — without sufficient evidence — that turnover from purely domestic routes had been included in the fine calculations for other carriers.

In the absence of proof of unequal treatment, the Court of Justice ruled that the General Court should not have adjusted SAS Cargo’s fine on that basis. It therefore set aside that aspect of the earlier judgment and fixed the fine at a lower amount.

Long-Running Case Nears Its End

With today’s rulings, the Court of Justice has effectively confirmed the Commission’s revised 2017 decision and reinforced the extraterritorial reach of EU competition law in global transport markets.

For the air cargo industry, the judgments close one of the EU’s most complex cartel cases — and underline the high evidentiary and procedural thresholds airlines must meet to overturn antitrust penalties at Europe’s highest court.