British Airways v Commission

The Commission found that the airlines had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating in a cartel in relation to fuel and security surcharges and the commission paid on them for airfreight services. The airlines applied to annul the Commission’s decision inter alia on the basis that the Commission did not have jurisdiction in relation to the airfreight services on inbound routes from third countries into the EEA because competition in relation to those routes only took place in those third countries, where the relevant agreements were implemented.

The General Court dismissed the airline’s applications, holding that the Commission had been right to assert jurisdiction in relation to inbound routes. The airlines appealed to the CJEU. The Advocate General has concluded that the appeals should be dismissed.

The appeals represent one of the first considerations by the CJEU of the so-called “qualified effects” test for establishing extraterritorial jurisdiction (established in Case C-413/14 P Intel v Commission) in the context of Article 101 TFEU. The Advocate General’s opinion sets a low bar for the establishment of jurisdiction, concluding that evidence of actual effects is not required and that it is sufficient that the impugned conduct should be liable to have substantial, immediate and foreseeable effects within the EEA. The Advocate General has also concluded that the qualified effects test is on its own sufficient to establish jurisdiction and that it is permissible for the Commission to take into account the single and continuous nature of the infringement in applying the qualified effects test.

The opinion can be read here.

Tom Coates represented British Airways before the CJEU.