ECJ rejects Schenker’s application
In November 2010, the EU Commission fined 11 cargo carriers – Air Canada, Air France-KLM, British Airways, Cathay Pacific, Cargolux, Japan Airlines, LAN Chile, Martinair, SAS, Singapore Airlines and Qantas – a total of 800 million euros (US$975.3 million) for operating a worldwide cartel for price fixing within the European Economic area.
The fine was in relation to illegal, anti-competitive contracts between the carriers with regards to fixing of fuel surcharges, the creation of a security surcharge, and the refusal to pay a commission on surcharges to the airlines’ clients, between 1999 and 2006.
Many of the carriers indicted have appealed against the cartel fines that the EU Commission’s ruling brought against them.
In response to this, Schenker AG, the Germany-headquartered freight forwarding concern, applied to the EU’s highest court – the European Court of Justice (ECJ) – for an intervention into the air cargo cartel’s appeals, on the basis that the cartel’s illegal behaviour was detrimental to Schenker’s forwarding business. Moreover, Schenker argued that its right to intervene should be granted in order to prevent the reformation of the cartel in the future.
The move by Schenker, if upheld by the court, would have granted the forwarder access to sensitive cartel documentation that could be used in support of a civil damages claim against the guilty airlines.
On 10 July, the ECJ rejected Schenker’s intervention application, stating that the fact that a company is a customer of airlines participating in a cartel is not sufficient to establish a right to intervene. The court argued that the higher prices the cartel would have brought about for Schenker did not distinguish it significantly from other entities in the sector that would have been negatively impacted by the cartel’s price fixing activities.
The ECJ added that there are no indications that the cartel has not already been dissolved, and therefore Schenker has no right to intervene on the grounds that it wishes to ensure the end of the anti-competitive behaviour.