Australian Competition and Consumer Commission v Cargolux Airlines International SA [2009] FCA 342

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Cargolux Airlines International SA [2009] FCA 342

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v CARGOLUX AIRLINES INTERNATIONAL SA (ARBN 089 702 447)

NSD 106 of 2009

LINDGREN J

14 APRIL 2009

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 106 of 2009

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: CARGOLUX AIRLINES INTERNATIONAL SA

(ARBN 089 702 447)

Respondent

JUDGE: LINDGREN J

DATE OF ORDER: 16 FEBRUARY 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The respondent pay the Commonwealth of Australia within 14 days of this order a pecuniary penalty in the sum of $5,000,000 in respect of contraventions of section 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (the Act) in that: 1.1. the respondent, in about April 2003, arrived at an understanding with certain of its competitors including Lufthansa Cargo Aktiengesellschaft (Lufthansa), Societe Air France, and Koninklijke Luchtvaart Maatschaapij N.V, for the supply of services for the international carriage of air cargo (air cargo services) containing a provision that they would each impose a charge, described as a fuel surcharge, in respect of the air cargo services supplied by each of them throughout the world, according to a methodology published by Lufthansa, except where conditions in a particular port or in a particular geographic area prevented the imposition, or full imposition, of the charge; 1.2. that provision had the purpose, effect and likely effect of fixing, maintaining or controlling a component of the price charged by each of them for the said services within the meaning of section 45A of the Act, and is therefore deemed to substantially lessen competition within the meaning of section 45(2)(a)(ii) of the Act; and 1.3. the respondent gave effect to that provision of the understanding, including on air cargo services from other countries to Australia, between April 2003 and February 2006 by inter alia: 1.3.1. increasing or decreasing on 18 occasions the amount of the fuel surcharge it imposed per kilogram of cargo in accordance with the said understanding; and 1.3.2. imposing the fuel surcharge on its international air cargo services, including to Australia. 2. The respondent be restrained, for a period of five years from the date of this order from making, arriving at, or giving effect to, any contract, arrangement or understanding with any of its competitors for the supply of air cargo services, containing provisions which have the effect of fixing, controlling or maintaining the price or any part of the price at which it or any of them will supply those services in competition with each other unless: 2.1. the said contract, arrangement or understanding does not involve or relate to the carriage of goods to or from Australia; 2.2. the said contract, arrangement or understanding is necessary for the purpose of interlining between two or more carriers in the course of supplying air cargo services; or 2.3. the respondent is specifically authorised to do so under section 88 of the Act. 3. The respondent pay the applicant within 14 days of this order a contribution towards its costs of and incidental to these proceedings in the sum of $200,000. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.