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EU Court partly annuls BA cargo fine


On 30 March 2022 the EU General Court (GC) partly annulled the Commission’s 2017 decision.  This is the second time the GC has annulled the Commission’s decision in this matter, having annulled the original 2010 decision in full in 2016. 

The GC upheld two of BA’s grounds of appeal:

  • The Commission finding that BA participated in an infringement concerning the non-payment of commission on surcharges.  The GC examined the four sets of evidence presented by the Commission ((i) contacts with Qantas; (ii) an email from SAC of 28 December 2005; (iii) email exchanges between members of the Italian Board of Airline Representatives (‘the IBAR’); and (iv) email exchanges between members of Air Cargo Council Switzerland (‘ACCS’)).  The GC concluded that only three items of evidence were capable of supporting the Commission’s conclusion and “in view of the ambiguity of the exchanges described in the first two of those recitals and of the weak evidential value of the email referred to in the third, and in the absence of other evidence, it must be concluded that the Commission did not rely on a body of evidence sufficient to prove the applicant’s participation in the component of the single and continuous infringement relating to the refusal to pay commission”.  Consequently, the GC annulled the Commission’s decision in so far as it found BA participated in a single continuous infringement with respect to the refusal to pay commission on surcharges.
  • The GC also annulled the Commission’s decision in so far as it found BA participated in an infringement with respect to routes between airports within the EU and Switzerland between 1 June 2002 and 14 February 2006.      

The GC reduced the fine imposed on BA by €20 million.

The judgment is here.

Robert O’Donoghue QC acted for BA in the case.