Alleged cartel activity: air cargo & freight services

Air Canada & Ors v Emerald Supplies Limited & Ors [2015] EWCA Civ 1024
Court of Appeal (Civil Division)
Lord Justice elias, Lady Justice Gloster, Sir Bernard Rix
14 October 2015

Appeals against certain case management and other orders made by Peter Smith J in proceedings brought by some 565 claimant companies against British Airways plc, arising out of an alleged unlawful cartel said to have operated worldwide between 1999 and 2007. The claimants are shippers of air freight who purchased air freight services in various territories worldwide, in virtually all cases acquiring those services indirectly through freight forwarders who contracted directly with the airline concerned. The object of the cartel, it is alleged, was to co-ordinate and fix prices for air cargo services, especially with respect to fuel and security surcharges, thereby distorting competition and inflating prices for those acquiring the services.

For further UK case law, see our United Kingdom – Cases page.

 

September 2010 – April 2011

21 April 2011:

AviationLaw.eu goes live!!

Welcome to AviationLaw.EU! We hope that it will be a useful resource that you will use time and time again.

 

19 April 2011:

On 19 April 2011, Cameroon acceded to the Convention on International Interests in Mobile Equipment, 2001 and the Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Aircraft Equipment, 2001.

 

18 April 2011:

Gamit Ltd v Saudi Arabian Airlines Corp. [2011] EWHC 989 (Comm)

Queen’s Bench Division, Commercial Court, Mr Justice David Steel, 18 April 2011

Contract – Interpretation – Claim for spare parts or their value following the termination of aircraft maintenance agreement.

 

15 April 2011:

On 15 April 2011, France signed the Beijing Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, 2010 and its Supplementary Protocol.

 

17 March 2011:

Judgment of the Court of Justice of the European Communities handed down in Brussels Hoofdstedelijk Gewest and Others

The case concerned the interpretation of point 7(a) of Annex I to Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, as amended. The Court held that:

The renewal of an existing permit to operate an airport cannot, in the absence of any works or interventions involving alterations to the physical aspect of the site, be classified as a ‘project’ or ‘construction’, respectively, within the meaning of those provisions;

However, it is for the national court to determine, on the basis of the national legislation applicable and taking account, where appropriate, of the cumulative effect of a number of works or interventions carried out since the entry into force of the directive, whether that permit forms part of a consent procedure carried out in several stages, the ultimate purpose of which is to enable activities which constitute a project within the meaning of the first indent of point 13 of Annex II, read in conjunction with point 7 of Annex I, to the directive to be carried out. If no assessment of the environmental effects of such works or interventions was carried out at the earlier stage of the consent procedure, it would be for the national court to ensure that the directive was effective by satisfying itself that such an assessment was carried out at the very least at the stage at which the operating permit was to be granted.

The full judgment may be found at:

http://www.bailii.org/eu/cases/EUECJ/2011/C27509.html

 

17 February 2011:

Opinion of AG Cruz Villal’n handed down in European Air Transport SA v Collège d’Environnement de la Région de Bruxelles-Capitale

The central issue in the case concerned the scope which must be given to ‘operating restrictions’ in Directive 2002/30/EC on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports.

The AG held, inter alia, that an ‘operating restriction’ is ‘a prohibition imposed in advance and on an objective basis, which prevents a civil subsonic jet from having access to an airport. The distinguishing feature of these restrictions is the express prohibition on landing. As a consequence, ex post measures for enforcement, such as a system involving penalties applicable in relation to the emission of noise, cannot be said to be ‘operating restrictions’.’

The AG further added that an operating restriction within the meaning of the Directive is ‘a prohibition, absolute or temporary, imposed in advance and on an objective basis, which specifically prevents – and does not merely render difficult or less attractive ‘ the access of a civil subsonic jet aeroplane to a European Union airport.’

The judgment of the Court of Justice of the European Communities has not yet been handed down. For the AG’s Opinion, go to http://www.bailii.org/eu/cases/EUECJ/2011/C12010_O.html

 

14 February 2011:

NEW! Legislation – Turkey

New Turkish Commercial Code 6102

14.02.2011 (date of publication in the Official Gazette)
01.07.2012 (date of entry into force)

 

February 2011:

NEW! Legislation – UK

Air Navigation (Overseas Territories) (Amendment) Order 2011 2011/237

Air Traffic Services (Exemption) Order 2011 2011/425

 

25 January 2011:

Judgment of the Court of Justice of the European Communities handed down in Neukirchinger v Bezirkshauptmannschaft Grieskirchen

The case examined the validity of national legislation that required a person to have a place of residence or a company seat in a particular Member State in order to be permitted to operate commercial balloon flights there.

The Court held that Article 12 EC precludes legislation of a Member State, which, for the organisation of balloon flights in that Member State and subject to administrative sanctions in the event of failure to comply with that legislation, requires a person resident or established in another Member State, who is licensed in that second Member State to operate commercial balloon flights, to have a place of residence or company seat in the first Member State, and obliges that person to obtain a new licence, without due account being taken of the fact that the conditions of issue are, essentially, the same as those which apply to the licence already issued to that person in the second Member State.

The Court found that such distinguishing criterion which is based on residence, in fact leads to the same result as discrimination based on nationality, since it is liable to operate mainly to the detriment of nationals of other Member States, as non-residents are in the majority of cases foreign nationals. Such a difference in treatment can be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate aim of the national provisions. However, no such justification was found in relation to the legislation being examined in the proceedings.

The full judgment may be found here: http://www.bailii.org/eu/cases/EUECJ/2011/C38208.html

 

12 October 2010:

NEW! Legislation – Greece

ΠΔ 103/2010

Προεδρικό Διάταγμα 103/2010 ‘Κανονισμός Λειτουργίας της Εθνικής Εποπτικής Αρχής Αεροναυτιλίας’ (ΦΕΚ Α’ 180 12.10.2010)

[Presidential Decree 103/2010 Regulation of the National Supervisory Αir Navigation Authority (Gazette № A’  180 12.10.2010]

 

10 September 2010:

New Convention and Protocol adopted at the International Conference on Air Law

The following instruments were adopted by the Final Act of the International Conference on Air Law (Diplomatic Conference on Aviation Security), held under the auspices of ICAO, at Beijing from 30 August to 10 September 2010.

  • Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation
  • Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft

The Governments of over 70 States were represented at the Conference, along with Observers from the African Civil Aviation Commission, the Arab Civil Aviation Commission, the International Air Transport Association and the United Nations Office on Drugs and Crime.

For further information on the Conference and the full texts of the Convention and Protocol, see:

http://www.icao.int/DCAS2010/