(Judgment of the General Court in case Т-265/2012, Schenker v. Commission)

Stanka Cherkezova[1]

The article discusses the judgment of the General Court of the EU in case T-265/12 Schenker Limited v. Commission and the wide discretion of the Commission in competition cases on matters of leniency, liability, definition of market, agreement and providing information.

On 29 of February 2016 the General Court issued six judgements in the international air freight forwarding case[2]. The Court upheld the findings of the European Commission for agreements and concerted practices in the international air freight forwarding sector, which caused four different infringements of Art. 101 (1) of TFEU and Art. 53 (1) of the Agreement on the European Economic Area. The General Court discussed important issues regarding the Commission’s discretion as to its leniency program, defining the liable entities, or seeking agreement with the companies, involved in an infringement of the competition rules. Those issues are enshrined in the Case T-265/ 12, Schenker/ Commission, analyzed in detail in the present article.

The General Court in the discussed case provides for clear guidance as to the application and scope of the leniency program. Focusing on the wide discretion of the European Commission, the Court notes that the leniency is applied on a different basis depending on whether it concerns the first company to disclose information for a secret cartel, or the next companies to assist the Commission in its findings. The two-folded approach is clear from the Commission Notice on immunity from fines and reduction of fines in cartel cases from 2006 on which the leniency procedure is based, and is further elaborated by the Court decision in the case T-265/12. The approach is founded on the preventive nature of the Commission’s policy in the field of competition. Since the cartel agreements and practices are the most serious infringements of Art. 101 TFEU, the leniency program is directed towards benefiting the companies, which are the first to provide information for anti-competitive practice, but not to companies which decide to cooperate with the Commission on a later stage, at least not with the same degree of benefit. The ground for granting reduction in fines to companies which cooperate on a later stage of the proceedings is for securing effective and timely imposition of sanctions for the illegal activity.

The Court notes the importance of the provided information and the degree of cooperation from any of the companies in deciding on the immunity or the reduction of fines. The aim of the leniency program is to stimulate the companies, participating or aware of secret cartel, to assist the Commission as early as possible. Therefore, it is justifiable to grant reduction or immunity to such companies, in correspondence with the added value of the provided evidence.

The Court also points to the wide discretion of the Commission when defining the circle of companies, which shall bear the liability for the anti-competitive actions. In this respect, the Commission may decide on objective criteria to impose sanctions to one or all of the parent companies for the actions of their subsidiaries. In the particular case, the Commission had found only the present parent company as liable for the actions of a subsidiary, but not the parent company at the time of the action itself. The Court finds this approach as falling within the discretion of the Commission.

It is for the Commission as well to decide on whether to initiate an agreement procedure with the companies involved in the anti-competitive action. The Court hold that this decision is based on discretion, bot an obligation of the Commission for that matter.

In the field of competition, Regulation № 141 of the Council on the application of Regulation № 17/62 provides for exemption of competition provisions towards cartel agreements in the transport services, which define prices and conditions, limit or control the supply of transport serviced, or divide respective markets. This exemption is the response to substantial state involvement and regulation in the transport sector. The scope of the exemption had been limited over the years until the adoption of Regulation № 1/2003. Therefore, the Court in the discussed case limits the scope of Regulation № 141 of the Council only to cartels which directly concern air transport between Member states and third states, while cartels on services, which are not directly concerning air transport, are not covered by the exemption of the Regulation. Since in the present case the services covered by the cartel are freight forwarding services, as such they are outside the application of the exemption.

The same discussions are held by the Court in the other cases concerning the freight forwarding services. Since the Commission imposed fines in the total amount of over 169 million euro, it is expected that the decisions will be appealed before the Court of Justice of the European Union.




[1] Legal practitioner in the private sector with years of experience in the field of Commercial and Contract law. Member of the Board of Directors of International Moot Court Competitions Association. LL.M. in European law with focus on Competition law at Maastricht University.

[2] Case T-256/2012 Schenker Lts vs. Commission; Case TТ-267/ 2012 Deutsche Bahn AG and Others vs. Commission; Case T-251/2012 ЕGL and Others vs. Commission; Case T-254/2012 Kuhne + Nagel International and Others vs. Commission; Case T-270/ 2012 Panalpina World Transport (Holding) Ltd. and Othersvs.Commission; and Case T-264/ 2012 UTi Worldwide and Others vs. Commission.