Under EU case-law, anti-competitive agreements and concerted practices fall within the scope of Article 101 TFEU if there is a sufficient degree of probability that they may have a direct or indirect effect, actually or potentially, on the pattern of trade between EU Member States.
On appeal before the Court of Justice of the European Union ("ECJ"), Schenker (in case C-263/16 P) and Kühne (in case C-261/16 P) claimed that the alleged infringement in which they were involved did not fall within the scope of Article 101 TFEU. In particular, they argued that the alleged anti-competitive practices: (i) did not affect trade between Member States; and (ii) in any case, did not "appreciably" affect such trade.
With respect to the first point, Schenker and Kühne argued that the New Export System ("NES") cartel (which related to an agreement on a pre-clearance system for exports from the United Kingdom to countries outside the European Economic Area) and the Advanced Manifest System ("AMS") cartel (which related to an agreement on a regulatory requirement for goods to be shipped in the US) were only concerned with trade flows between the EEA and third countries and, therefore, did not fall within the scope of Article 101 TFEU. With respect to the second point, Schenker and Kühne argued that, in any case, the two allegedly anti-competitive practices did not appreciably affect trade between Member States.
The ECJ delivered its judgement in these cases on 1 February 2018. As regards the first ground of appeal, the ECJ ruled that the criterion of effect on trade between Member States has to be considered in relation to the relevant product market. It was not disputed that the relevant market in this case related to international air freight forwarding services. The companies involved in the cartels offered freight forwarding services as "a combination of several services as a single package" which covered transport, logistics and administrative operations. These services were sold and purchased not only in the UK but also across the EEA. Therefore, the ECJ ruled that it appeared sufficiently probable that the cartels were capable of having repercussions on the conduct of the freight forwarders in other Member States, where they were also competing with one another, and which were capable of altering the structure of competition within the EU.
The ECJ also dismissed the second ground of appeal stating that the General Court had been entitled to hold that, even assuming that the NES and AMS cartels did not affect the flow of goods between Member States in a significant way, that would not call into question the Commission's conclusion that, because of their effects on the market for freight forwarding services, those cartels were likely to affect trade between Member States in a substantial way.
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