1. By its appeal, the European Commission seeks the partial annulment of the judgment of the General Court of the European Union in Joined Cases T‑208/08 and T‑209/08 Gosselin Group and Stichting Administratiekantoor Portielje v Commission [2011] ECR II‑3639 (‘the judgment under appeal’), by which that court annulled, in Case T‑209/08, Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.543 - International Removal Services) (‘the contested decision’), as amended by Commission Decision C(2009) 5810 final of 24 July 2009 (‘the amending decision’), in so far as it concerned Stichting Administratiekantoor Portielje (‘Portielje’). Legal context
2. Article 2 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) provides that ‘the burden of proving an infringement of Article 81(1) … [EC] shall rest on the party or the authority alleging the infringement’.
3. Article 23(2) of Regulation No 1/2003 states, inter alia, that ‘[t]he Commission may by decision impose fines on undertakings and associations of undertakings …’.
4. The Guidelines on the effect on trade concept contained in Articles 81 [EC] and 82 [EC] (OJ 2004 C 101, p. 81) (‘the Guidelines on the effect on trade’) state, inter alia, at point 53 as follows: ‘The Commission will … hold the view that where an agreement by its very nature is capable of affecting trade between Member States, for example, because it concerns imports and exports or covers several Member States, there is a rebuttable positive presumption that such effects on trade are appreciable when the turnover of the parties in the products covered by the agreement … exceeds 40 million euro. In the case of agreements that by their very nature are capable of affecting trade between Member States it can also often be presumed that such effects are appreciable when the market share of the parties exceeds the 5 % threshold … . However, this presumption does not apply where the agreement covers only part of a Member State …’.
5. The Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) (‘the Guidelines on the method of setting fines’) provide, under the heading ‘Adjustments to the basic amount’, as follows: ‘… B. Mitigating circumstances 29. The basic amount may be reduced where the Commission finds that mitigating circumstances exist, such as: … - where the undertaking provides evidence that its involvement in the infringement is substantially limited and thus demonstrates that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market: the mere fact that an undertaking participated in an infringement for a shorter duration than others will not be regarded as a mitigating circumstance since this will already be reflected in the basic amount; … - where the anti-competitive conduct of the undertaking has been authorised or encouraged by public authorities or by legislation. … …’ Background to the dispute and the contested decision
6. The facts giving rise to the dispute and the contested decision, as set out in paragraphs 1 to 19 of the judgment under appeal, may be summarised as follows.
7. Gosselin Group NV (‘Gosselin’) was founded in 1983 and has operated under that name since 20 December 2007. Since 1 January 2002, 92% of Gosselin’s shares have been held by Portielje, the remaining 8% being held by Vivet en Gosselin NV, in which Portielje in turn has a 99.87% holding. Portielje is a foundation which does not engage in any commercial activity and ‘brings together family shareholders in order to ensure unity of management’. During the financial year ending 30 June 2006, Gosselin achieved a consolidated worldwide turnover of EUR 143 639 000 and Portielje a consolidated worldwide turnover of EUR 0.
8. In the contested decision, the Commission found that the addressees of that decision, which included Portielje and Gosselin, had participated in a cartel in the international removal services sector in Belgium by fixing prices, sharing customers and manipulating the procedure for the submission of tenders and thereby committed a single and continuous infringement of Article 81 EC, or must be held liable for such an infringement, for part or the whole of the period from October 1984 to September 2003.
9. The services concerned by the infringement include removals of goods, both for natural persons and for undertakings or public institutions, to or from Belgium. In view of the fact that the international removal companies in question are all located in Belgium and that the activities of the cartel took place there, Belgium was considered to be the geographic centre of the cartel. The combined turnover of the cartel members for those international removal services was estimated by the Commission at EUR 41 million for 2002. Since the size of the sector was estimated at approximately EUR 83 million, the combined market share held by the undertakings involved was therefore considered to account for approximately 50% of the sector concerned.
10. The Commission stated in the contested decision that one of the aims of the cartel was to establish and maintain high prices and to share the market, and the cartel itself took various forms: agreements on prices (‘the agreement on prices’), agreements on sharing the market by means of a system of false quotes, known as ‘cover quotes’ (‘the agreement on cover quotes’) and agreements on a system of financial compensation, known as ‘commissions’, for rejected offers or for not quoting at all (‘the agreement on commissions’).
11. In the contested decision, the Commission found that, between 1984 and the early 1990s, the cartel had operated inter alia on the basis of written price-fixing agreements, the ‘commission’ and ‘cover quote’ practices being introduced at the same time. According to that decision, the ‘commissions’ practice was to be treated as the indirect fixing of prices for international removal services in Belgium, since the cartel members issued invoices to each other for commissions on rejected offers or offers not made, referring to fictitious services, and the amount represented by those commissions was, moreover, invoiced to the customers.
12. As regards ‘cover quotes’, the Commission stated in the contested decision that, through the submission of such quotes, the removal company which wanted the contract ensured that the customer paying for the removal received several quotes. To that end, that company indicated to its competitors the total price that they were to quote for the planned removal, which was higher than the price quoted by the company itself. Thus the system in operation was one of fictitious quotes submitted by companies which did not intend to carry out the removal. The Commission took the view that that practice constituted a manipulation of the tendering procedure to ensure that the price quoted for a removal was higher than it would have been in a competitive environment.
13. The Commission found in the contested decision that those arrangements were in place until 2003 and that those complex activities had the same object: price-fixing and market-sharing, and, thereby, the distortion of competition.
14. In the light of those factors, the Commission adopted the contested decision, Article 1 of which is worded as follows: ‘By directly and indirectly fixing prices for international removal services in Belgium, sharing part of the market, and manipulating the procedure for the submission of tenders, the following undertakings have infringed Article 81(1) [EC] and Article 53(1) of the [Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3)] in the periods indicated: … (c) [Gosselin] from 31 January 1992 until 18 September 2002; with [Portielje], from 1 January 2002 to 18 September 2002; …’
15. Consequently, in Article 2(e) of the contested decision, the Commission imposed a fine of EUR 4.5 million on Gosselin, of which Portielje was held jointly and severally liable for EUR 370 000. That fine was calculated in accordance with the methodology set out in the Guidelines on the method of setting fines.
16. On 24 July 2009, the Commission adopted the amending decision. By that decision, the Commission reduced by approximately EUR 600 000 the value of Gosselin’s sales. As that value had been used at the basis of the calculation of the fine imposed on Gosselin, the Commission reduced the fine to be imposed on it to EUR 3.28 million, of which Portielje was held jointly and severally liable for EUR 270 000. The procedure before the General Court and the judgment under appeal
17. By application lodged at the Registry of the General Court on 4 June 2008, Portielje brought an action for annulment of the contested decision, in so far as it concerned Portielje, or, in the alternative, annulment of Article 2(e) of that decision, in so far as that provision concerned it, and, as a consequence, annulment of the fine imposed in Article 2(e).
18. By order of the President of the Eighth Chamber of the General Court of 5 March 2010, Case T‑209/08 was joined, for the purposes of the oral procedure and of the judgment, to Case T‑208/08, brought by Gosselin against the contested decision.
19. In support of its action, Portielje relied on five pleas in law, the first two of which were specific to it and the remaining three corresponding, in essence, to the pleas raised by Gosselin in Case T‑208/08. By the judgment under appeal, the General Court granted the first two pleas relied on by Portielje. That court’s decision was based inter alia on the following considerations.
20. After setting out its reasons at paragraphs 37 to 50 of the judgment under appeal, the General Court granted Portielje’s first plea, by which it submitted that it is not an undertaking within the meaning of Community competition law and that, as a consequence, there could be no parent company/subsidiary relationship between itself and Gosselin. The General Court found in particular, at paragraphs 39 to 42 of the judgment under appeal, that the parent company of an undertaking which has infringed Article 81 EC cannot be penalised by a decision implementing that provision, if it is not itself an undertaking. It considered in that connection that reliance on the concept of economic unity cannot compensate for the fact that the parent company is not an undertaking and that it is necessary to distinguish the concept of an undertaking from that of imputation of the conduct of a subsidiary to its parent company.
21. As to whether it is possible to classify Portielje as an undertaking, after stating that it was established that Portielje was not directly engaged in any economic activity, the General Court found, at paragraphs 47 and 48 of the judgment under appeal, in reliance on Case C‑222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I‑289, that ‘the mere fact of holding shares, even controlling shareholdings’ was insufficient to characterise as economic an indirect activity of the entity holding those shares and that, in order to ascertain whether such an economic activity is carried on, it is necessary to examine whether that entity involved itself directly or indirectly in the management of its subsidiary.
22. The General Court stated in that regard, at paragraphs 48 to 50 of the judgment under appeal, that the question whether Portielje had involved itself directly or indirectly in the management of Gosselin is different from the question whether it exercised decisive influence over it. The General Court pointed out that no presumption has been established concerning the possibility of classifying an entity as an undertaking and that, as a consequence, the burden of proving that Portielje was in fact involved in the management of Gosselin lay with the Commission. Since the Commission had adduced no evidence of such involvement, the General Court concluded that the Commission had failed to establish that Portielje was an undertaking for the purpose of Article 81 EC.
23. At paragraphs 51 to 59 of the judgment under appeal, the General Court analysed the second plea put forward by Portielje, ‘[f]or the sake of completeness’, on the basis ‘even if Portielje were an undertaking’. It concluded that Portielje had succeeded in rebutting the presumption relating to the exercise of decisive influence established, inter alia, by Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237 and consequently upheld the second plea.
24. In its analysis, the General Court stated, at paragraphs 54 to 56 of the judgment under appeal that: (i) it was necessary to rule out the claim that Portielje exerted decisive influence over the conduct of its subsidiary on the ground alone that both Portielje’s first decision in writing and the first formal meeting of its board of directors occurred after the end of the infringement; (ii) the only way Portielje could influence Gosselin’s policy was to use its voting rights at the general meeting of that company’s shareholders but no general meeting had been held during the period from 1 January 2002 to 18 September 2002; and (iii) the members of Gosselin’s board of directors were appointed before Portielje acquired Gosselin’s shares as trustee, which shows, according to the G eneral Court, that their presence on Gosselin’s board of directors does not indicate influence on the part of Portielje.
25. Moreover, the General Court found, at paragraph 57 of the judgment under appeal, that it could not be accepted that the three persons who constituted Gosselin’s board of directors, but who represented only half of Portielje’s board of directors, controlled Gosselin not in their capacity as directors of that company but through the influence exerted by Portielje over Gosselin’s general meeting. The General Court observed in that regard, inter alia, that even if the three directors of Gosselin, who were among the owners of Portielje, did not act only as directors of Gosselin, it is more likely that they acted in their own interests.
26. In the light of the foregoing considerations, the General Court found, at paragraph 59 of the judgment under appeal, that it was necessary to annul the contested decision, as amended by the amending decision (‘the contested decision as amended’), in so far as it concerned Portielje. Nevertheless, the General Court went on to analyse the three other pleas relied on by Portielje, since they had also been raised by Gosselin, and rejected them. Forms of order sought by the parties
27. By its appeal, the Commission asks the Court to set aside the judgment under appeal, to the extent that it annuls the contested decision as amended as regards Portielje, to dismiss Portielje’s action for annulment and to order the latter to pay the costs of the proceedings before the General Court and the Court of Justice.
28. Portielje contends that the Court should dismiss the appeal and order the Commission to pay the costs of both sets of proceedings. The appeal
29. The basic amount may be reduced where the Commission finds that mitigating circumstances exist, such as: … - where the undertaking provides evidence that its involvement in the infringement is substantially limited and thus demonstrates that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market: the mere fact that an undertaking participated in an infringement for a shorter duration than others will not be regarded as a mitigating circumstance since this will already be reflected in the basic amount; … - where the anti-competitive conduct of the undertaking has been authorised or encouraged by public authorities or by legislation. … …’ Background to the dispute and the contested decision 6. The facts giving rise to the dispute and the contested decision, as set out in paragraphs 1 to 19 of the judgment under appeal, may be summarised as follows. 7. Gosselin Group NV (‘Gosselin’) was founded in 1983 and has operated under that name since 20 December 2007. Since 1 January 2002, 92% of Gosselin’s shares have been held by Portielje, the remaining 8% being held by Vivet en Gosselin NV, in which Portielje in turn has a 99.87% holding. Portielje is a foundation which does not engage in any commercial activity and ‘brings together family shareholders in order to ensure unity of management’. During the financial year ending 30 June 2006, Gosselin achieved a consolidated worldwide turnover of EUR 143 639 000 and Portielje a consolidated worldwide turnover of EUR 0. 8. In the contested decision, the Commission found that the addressees of that decision, which included Portielje and Gosselin, had participated in a cartel in the international removal services sector in Belgium by fixing prices, sharing customers and manipulating the procedure for the submission of tenders and thereby committed a single and continuous infringement of Article 81 EC, or must be held liable for such an infringement, for part or the whole of the period from October 1984 to September 2003. 9. The services concerned by the infringement include removals of goods, both for natural persons and for undertakings or public institutions, to or from Belgium. In view of the fact that the international removal companies in question are all located in Belgium and that the activities of the cartel took place there, Belgium was considered to be the geographic centre of the cartel. The combined turnover of the cartel members for those international removal services was estimated by the Commission at EUR 41 million for 2002. Since the size of the sector was estimated at approximately EUR 83 million, the combined market share held by the undertakings involved was therefore considered to account for approximately 50% of the sector concerned. 10. The Commission stated in the contested decision that one of the aims of the cartel was to establish and maintain high prices and to share the market, and the cartel itself took various forms: agreements on prices (‘the agreement on prices’), agreements on sharing the market by means of a system of false quotes, known as ‘cover quotes’ (‘the agreement on cover quotes’) and agreements on a system of financial compensation, known as ‘commissions’, for rejected offers or for not quoting at all (‘the agreement on commissions’). 11. In the contested decision, the Commission found that, between 1984 and the early 1990s, the cartel had operated inter alia on the basis of written price-fixing agreements, the ‘commission’ and ‘cover quote’ practices being introduced at the same time. According to that decision, the ‘commissions’ practice was to be treated as the indirect fixing of prices for international removal services in Belgium, since the cartel members issued invoices to each other for commissions on rejected offers or offers not made, referring to fictitious services, and the amount represented by those commissions was, moreover, invoiced to the customers. 12. As regards ‘cover quotes’, the Commission stated in the contested decision that, through the submission of such quotes, the removal company which wanted the contract ensured that the customer paying for the removal received several quotes. To that end, that company indicated to its competitors the total price that they were to quote for the planned removal, which was higher than the price quoted by the company itself. Thus the system in operation was one of fictitious quotes submitted by companies which did not intend to carry out the removal. The Commission took the view that that practice constituted a manipulation of the tendering procedure to ensure that the price quoted for a removal was higher than it would have been in a competitive environment. 13. The Commission found in the contested decision that those arrangements were in place until 2003 and that those complex activities had the same object: price-fixing and market-sharing, and, thereby, the distortion of competition. 14. In the light of those factors, the Commission adopted the contested decision, Article 1 of which is worded as follows: ‘By directly and indirectly fixing prices for international removal services in Belgium, sharing part of the market, and manipulating the procedure for the submission of tenders, the following undertakings have infringed Article 81(1) [EC] and Article 53(1) of the [Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3)] in the periods indicated: … (c) [Gosselin] from 31 January 1992 until 18 September 2002; with [Portielje], from 1 January 2002 to 18 September 2002; …’ 15. Consequently, in Article 2(e) of the contested decision, the Commission imposed a fine of EUR 4.5 million on Gosselin, of which Portielje was held jointly and severally liable for EUR 370 000. That fine was calculated in accordance with the methodology set out in the Guidelines on the method of setting fines. 16. On 24 July 2009, the Commission adopted the amending decision. By that decision, the Commission reduced by approximately EUR 600 000 the value of Gosselin’s sales. As that value had been used at the basis of the calculation of the fine imposed on Gosselin, the Commission reduced the fine to be imposed on it to EUR 3.28 million, of which Portielje was held jointly and severally liable for EUR 270 000. The procedure before the General Court and the judgment under appeal 17. By application lodged at the Registry of the General Court on 4 June 2008, Portielje brought an action for annulment of the contested decision, in so far as it concerned Portielje, or, in the alternative, annulment of Article 2(e) of that decision, in so far as that provision concerned it, and, as a consequence, annulment of the fine imposed in Article 2(e). 18. By order of the President of the Eighth Chamber of the General Court of 5 March 2010, Case T‑209/08 was joined, for the purposes of the oral procedure and of the judgment, to Case T‑208/08, brought by Gosselin against the contested decision. 19. In support of its action, Portielje relied on five pleas in law, the first two of which were specific to it and the remaining three corresponding, in essence, to the pleas raised by Gosselin in Case T‑208/08. By the judgment under appeal, the General Court granted the first two pleas relied on by Portielje. That court’s decision was based inter alia on the following considerations. 20. After setting out its reasons at paragraphs 37 to 50 of the judgment under appeal, the General Court granted Portielje’s first plea, by which it submitted that it is not an undertaking within the meaning of Community competition law and that, as a consequence, there could be no parent company/subsidiary relationship between itself and Gosselin. The General Court found in particular, at paragraphs 39 to 42 of the judgment under appeal, that the parent company of an undertaking which has infringed Article 81 EC cannot be penalised by a decision implementing that provision, if it is not itself an undertaking. It considered in that connection that reliance on the concept of economic unity cannot compensate for the fact that the parent company is not an undertaking and that it is necessary to distinguish the concept of an undertaking from that of imputation of the conduct of a subsidiary to its parent company. 21. As to whether it is possible to classify Portielje as an undertaking, after stating that it was established that Portielje was not directly engaged in any economic activity, the General Court found, at paragraphs 47 and 48 of the judgment under appeal, in reliance on Case C‑222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I‑289, that ‘the mere fact of holding shares, even controlling shareholdings’ was insufficient to characterise as economic an indirect activity of the entity holding those shares and that, in order to ascertain whether such an economic activity is carried on, it is necessary to examine whether that entity involved itself directly or indirectly in the management of its subsidiary. 22. The General Court stated in that regard, at paragraphs 48 to 50 of the judgment under appeal, that the question whether Portielje had involved itself directly or indirectly in the management of Gosselin is different from the question whether it exercised decisive influence over it. The General Court pointed out that no presumption has been established concerning the possibility of classifying an entity as an undertaking and that, as a consequence, the burden of proving that Portielje was in fact involved in the management of Gosselin lay with the Commission. Since the Commission had adduced no evidence of such involvement, the General Court concluded that the Commission had failed to establish that Portielje was an undertaking for the purpose of Article 81 EC. 23. At paragraphs 51 to 59 of the judgment under appeal, the General Court analysed the second plea put forward by Portielje, ‘[f]or the sake of completeness’, on the basis ‘even if Portielje were an undertaking’. It concluded that Portielje had succeeded in rebutting the presumption relating to the exercise of decisive influence established, inter alia, by Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237 and consequently upheld the second plea. 24. In its analysis, the General Court stated, at paragraphs 54 to 56 of the judgment under appeal that: (i) it was necessary to rule out the claim that Portielje exerted decisive influence over the conduct of its subsidiary on the ground alone that both Portielje’s first decision in writing and the first formal meeting of its board of directors occurred after the end of the infringement; (ii) the only way Portielje could influence Gosselin’s policy was to use its voting rights at the general meeting of that company’s shareholders but no general meeting had been held during the period from 1 January 2002 to 18 September 2002; and (iii) the members of Gosselin’s board of directors were appointed before Portielje acquired Gosselin’s shares as trustee, which shows, according to the G eneral Court, that their presence on Gosselin’s board of directors does not indicate influence on the part of Portielje. 25. Moreover, the General Court found, at paragraph 57 of the judgment under appeal, that it could not be accepted that the three persons who constituted Gosselin’s board of directors, but who represented only half of Portielje’s board of directors, controlled Gosselin not in their capacity as directors of that company but through the influence exerted by Portielje over Gosselin’s general meeting. The General Court observed in that regard, inter alia, that even if the three directors of Gosselin, who were among the owners of Portielje, did not act only as directors of Gosselin, it is more likely that they acted in their own interests. 26. In the light of the foregoing considerations, the General Court found, at paragraph 59 of the judgment under appeal, that it was necessary to annul the contested decision, as amended by the amending decision (‘the contested decision as amended’), in so far as it concerned Portielje. Nevertheless, the General Court went on to analyse the three other pleas relied on by Portielje, since they had also been raised by Gosselin, and rejected them. Forms of order sought by the parties 27. By its appeal, the Commission asks the Court to set aside the judgment under appeal, to the extent that it annuls the contested decision as amended as regards Portielje, to dismiss Portielje’s action for annulment and to order the latter to pay the costs of the proceedings before the General Court and the Court of Justice. 28. Portielje contends that the Court should dismiss the appeal and order the Commission to pay the costs of both sets of proceedings. The appeal 29. The Commission puts forward two grounds of appeal, each alleging infringement of Article 81 EC. The first ground of appeal, concerning the scope ratione personae of Article 81 EC Arguments of the parties
30. The Commission claims that, at paragraphs 39 to 42 of the judgment under appeal, the General Court erred in law in its interpretation of the concept of an undertaking for the purpose of Article 81 EC. Joint and several liability applies as between legal entities and arises as a result of the fact that such entities constitute an economic unit and, therefore, a single undertaking for the purpose of EU competition law. Thus, in order for it to be possible for an infringement of Article 81 EC to be imputed to a specific legal person, the Commission is required to establish that that person belonged to the undertaking which committed the infringement. However, it is not necessarily required to show that that person itself has the legal capacity of an undertaking. The Commission refers in that regard to Akzo Nobel and Others v Commission .
31. As a consequence, according to the Commission, the General Court focused its analysis on an irrelevant issue, namely whether Portielje could be classified as an undertaking as such, and thereby applied an incorrect legal test. It should in fact have considered whether the Commission was justified in claiming that Portielje belonged to the undertaking which committed the infringement.
32. The Commission submits as an alternative argument that the conclusions drawn by the General Court from its incorrect premiss also amount to an error in law. The approach adopted by the General Court at paragraphs 48 and 49 of the judgment under appeal is not only at odds with the case‑law of the Court of Justice but also has the effect of requiring the Commission to demonstrate - twice and by two different means - that Portielje actually exerted control over Gosselin. Due to that incorrect approach, the General Court erred in law in finding that, in order to hold Portielje jointly liable with Gosselin for the infringement at issue, the Commission could not simply rely on the presumption laid down by the case‑law established in Akzo Nobel and Others v Commission but was required to show in addition and beforehand, by means of ‘hard evidence’, that Portielje had ‘involved itself directly or indirectly’ in the management of Gosselin. Moreover, the General Court rejected as irrelevant evidence which was, nevertheless, important and ruled out the application of the presumption based on the holding of shares in a manner that is incompatible with the principles established in Akzo Nobel and Others v Commission .
33. Portielje contends that the question whether it is an undertaking for the purpose of competition law is of fundamental importance for the application of Article 81 EC and that the Commission bears the burden of proving that that condition is fulfilled, in accordance with Article 2 of Regulation No 1/2003. By applying the evidentiary presumption established in Akzo Nobel and Others v Commission to a situation in which it had not yet been established that Portielje is an undertaking, the Commission failed properly to discharge the burden of proof incumbent upon it.
34. As regards the Commission’s principal argument, Portielje submits that, while the substantive provisions of competition law embrace an economic concept of an undertaking, the provisions concerning penalties must necessarily apply to a legal entity and, as a consequence, embrace the legal concept of an undertaking. Accordingly, the question whether it is possible to impute an infringement must be distinguished from the question whether an entity may be held liable for it. Thus, before an infringement can be imputed to a parent company, it must be possible for that company to be liable for the infringement in law. That will be the case only where it is an undertaking within the meaning of Article 81 EC and Article 23(2) of Regulation No 1/2003, either on account of its own economic activities or the economic activities of the companies in which has a controlling interest. However, in the latter case, it will be necessary for it actually to exercise control over those companies by involving itself, directly or indirectly, in their management. It is common ground that that was not the case with Portielje during the period of the infringement at issue.
35. As regards the argument put forward by the Commission in the alternative, Portielje considers that the requirement of proof of the exercise of decisive influence which stems from the presumption established inter alia by Akzo Nobel and Others v Commission cannot be applied to the doctrine concerning the circumstances in which an entity may be held liable for an infringement of Article 81 EC. Acceptance of the presumption that decisive influence is exerted as a valid criterion for demonstrating that an entity is to be regarded as an undertaking might, according to Portielje, have significant repercussions, in particular as regards entities engaged in both economic activities and activities entailing the exercise of the powers of a public authority. Findings of the Court
36. First, it should be observed that EU competition law refers to the activities of ‘undertakings’ (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 59, and Akzo Nobel and Others v Commission , paragraph 54) and that the concept of an undertaking encompasses any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 112, and Akzo Nobel and Others v Commission , paragraph 54). That concept must be understood as denoting an economic unit for the purposes of the subject-matter of the agreement in question, even if in law that economic unit consists of several persons, natural or legal (Case 170/83 Hydrotherm Gerätebau [1984] ECR 2999, paragraph 11, and Akzo Nobel and Others v Commission , paragraph 56).
37. When such an entity infringes competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (see, to that effect, Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 145, and Akzo Nobel and Others v Commission , paragraph 56).
38. With regard to the circumstances in which a legal person who is not responsible for the infringement may, nevertheless, be subject to penalties, it is the Court’s established case‑law that the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, the subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities ( Akzo Nobel and Others v Commission , paragraph 58 and the case‑law cited, and Joined Cases C‑628/10 P and C‑14/11 P Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others [2012] ECR I‑0000, paragraph 43).
39. In such a situation, since the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC, the Commission may address a decision imposing fines on the parent company, without having to establish the personal involvement of the latter in the infringement (see Akzo Nobel and Others v Commission , paragraph 59, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others , paragraph 44).
40. The Court has made clear that, in the particular case of a parent company having a 100% or virtually 100% shareholding in a subsidiary which has infringed EU rules on competition, there is a rebuttable presumption that the parent company does in fact exercise decisive influence over its subsidiary (‘the presumption of actual exercise of decisive influence’) (Case C‑508/11 P ENI v Commission [2013] ECR I‑000, paragraph 47; see also, to that effect, Akzo Nobel and Others v Commission , paragraph 60 and the case‑law cited; Case C‑521/09 P Elf Aquitaine v Commission [2011] ECR I‑8947, paragraphs 56 and 63; and Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others , paragraph 46).
41. In those circumstances, it is sufficient for the Commission to prove that the entire capital, or virtually the entire capital, of a subsidiary is held by the parent company in order for it to be presumed that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see, to that effect, Akzo Novel and Others v Commission , paragraph 61; Elf Aquitaine v Commission , paragraphs 57 and 63; Alliance One International and Standard Commercial Tobacco v Commission , paragraph 47; and ENI v Commission , paragraph 47).
42. That case‑law is based on the premiss that liability may be imputed to a legal entity for the conduct of another legal entity where the latter does not decide independently upon its own conduct on the market. Consequently, the fact that the entity holding all or virtually all the capital of another undertaking or all or virtually all of that entity’s shareholdings (‘the holding entity’) is constituted in the legal form of a foundation rather than a company is irrelevant.
43. It follows, as observed by the Advocate General at points 36 and 37 of her Opinion, that where the issue is whether an undertaking is to be penalised for infringement of competition law on the basis of Article 81 EC in conjunction with Article 23(2) of Regulation No 1/2003, it is also irrelevant whether each individual legal entity comprising the undertaking is itself economically active and therefore individually constitutes an undertaking as defined at paragraph 36 above.
44. The only decisive factor for the purpose of the penalty is that all the legal entities which are held jointly and severally liable, in whole or in part, for payment of the same fine together constitute with the entity whose direct involvement in the infringement has been established (‘the author of the infringement’) a single undertaking for the purpose of Article 81 EC. According to the case‑law cited at paragraphs 38 to 41 above, it is the actual exercise by the holding entity of decisive influence over the author of the infringement which is important in that regard.
45. It follows from the foregoing that the General Court erred in law in finding, first, at paragraph 39 of the judgment under appeal, that the concept of an undertaking must be considered separately from the concept that the conduct of the author of the infringement is to be imputed to its holding entity and, second, at paragraph 42 of that judgment, that ‘the parent company of an undertaking which has infringed Article 81 EC cannot be penalised by a decision implementing Article 81 EC, if it is not an undertaking itself’ and by consequently verifying, at paragraphs 43 to 50 of that judgment, whether the Commission had established that Portielje, by itself, was an undertaking for the purpose of Article 81 EC.
46. The main argument of the Commission’s first ground of appeal is therefore well founded and must be upheld, without it being necessary for the Court to rule on the argument put forward in the alternative.
47. However, that finding is not capable in itself of leading to the annulment of the judgment under appeal, in so far as it rules on the action brought before the General Court by Portielje. As is apparent from paragraphs 51 to 59 of that judgment, for the sake of completeness, the General Court based its decision on the finding that, in its view, Portielje had ‘adduced evidence to show that it did not exert a decisive influence over Gosselin, or even that it was unable to exert such an influence’, thus rebutting the presumption developed inter alia in Akzo Nobel and Others v Commission . It is therefore necessary also to examine the second ground of appeal. The second ground of appeal, concerning the rebuttal of the presumption of proof of exercise of decisive influence Arguments of the parties
48. The Commission submits that the General Court’s findings at paragraphs 51 to 59 of the judgment under appeal, to the effect that Portielje had adduced evidence to show that it did not exert decisive influence over Gosselin, or even that it was unable to exert such influence, are based on errors of law and/or manifest distortion of the clear sense of the evidence.
49. First, at paragraphs 56 and 57 of the judgment under appeal, the General Court manifestly distorted the clear sense of the evidence concerning the nature and extent of the personal links between Portielje and Gosselin. It stated that those links covered ‘only half’ of the directors of Portielje, thus implying that they could not together determine Portielje’s policy. However, it is apparent from recitals 46 and 446 of the contested decision and paragraphs 11 and 22 to 24 of Portielje’s defence and paragraph 6 of its rejoinder as well as from Portielje’s articles of association, which were submitted to the General Court, that those personal links concerned the three principal directors of Portielje, who, together, were in a position to determine that company’s policy and comprised Gosselin’s entire board of directors.
50. Second, the Commission claims that the General Court erred in law by finding, at paragraph 54 of the judgment under appeal, that, since Portielje did not take any formal management decision during the period of the infringement in question, it could not have exerted decisive influence over the conduct of Gosselin. The Commission accepts that the presumption of the actual exercise of decisive influence may be rebutted by evidence which shows that the subsidiary acted independently. However, the General Court introduced a rule to the effect that it is impossible for decisive influence to be exercised where the legal person exercising total control has not adopted any formal management decision. That amounts to a considerable restriction of the scope of that presumption, for which no basis may be found in case‑law and which is incorrect, especially where there are significant personal links between the legal persons concerned. The Commission observes in that connect ion that the case‑law established by Akzo Nobel and Others v Commission is based on economic reality and does not impose any formal requirement for the exercise of decisive influence.
51. Third, the Commission maintains that paragraphs 55 to 57 of the judgment under appeal are also vitiated by errors of law. Paragraph 55 is based on the erroneous premiss that decisive influence may be exercised only where the formal requirements of company law are complied with, namely, in the present case, at the general meeting of Gosselin’s shareholders. That assumption disregards the personal links between Gosselin and Portielje and discloses an excessively formalistic approach at odds with the functional nature of the economic concept of an undertaking.
52. With regard in particular to personal links, it is not possible, on the basis of any one of the three factors identified by the General Court at paragraphs 56 of the judgment under appeal, to conclude that Portielje did not constitute an economic unit with Gosselin. The Commission points out that those personal links concerned persons who, together, formed the entire board of directors of Gosselin and at the same time accounted for the majority of the votes on the board of directors of Portielje. Similarly, the considerations set out at paragraph 57 of the judgment are vitiated by an error of law and do not alter the conclusion that Gosselin may be deemed to have complied with Portielje’s wishes.
53. The Commission submits, in conclusion, that the Court has before it all the information necessary to give a definitive ruling on the dispute and dismiss the action brought by Portielje before the General Court.
54. Portielje contends that it did in fact rebut the presumption established in Akzo Nobel and Others v Commission .
55. Wit h regard to the actual exercise of decisive influence, Portielje considers that, since there was no meeting of its board of directors during the period of the infringement at issue, no general meeting of its shareholders during that period and no influence on the composition of the board of directors of Gosselin, it has succeeded in demonstrating that it had, as a matter of fact, no decisive influence over Gosselin. The Commission’s argument cannot be accepted. First, the effect of that argument would be to render the presumption irrebuttable, which is incompatible with, inter alia, its right to due legal process. Second, that argument is at odds with the fundamental principles of company law and the law governing legal persons. A legal entity such as a foundation exists only by virtue of its statutory bodies.
56. Portielje is of the view that personal links are decisive only where they are indicative of the fact that it is possible for the parent company to influence the policy of its subsidiary. That would be the case where the parent company has appointed directors to the board of its subsidiary in order that they might exert influence there. That was not done in this instance. Moreover, Portielje was not established for the purpose of exerting any kind of control over Gosselin.
57. Moreover, the position adopted by the Commission is at odds with two fundamental principles of company law, under which Portielje cannot be held liable for the conduct of three of its directors which had no connection with any body within the company. Thus, first, the directors of a company do not have any powers on an individual basis. Gosselin and Portielje act only through their individual organs and their respective boards of directors alone, acting as a collegiate body, have general powers of administration. Second, directors can use their powers only within the limits of the authority conferred on them and only in the interests of the company, misuse of power generally entailing the sanction of annulment. Accordingly, it is perfectly reasonable to take the view that the three Gosselin directors acted only in their capacity as directors of that company, not as representatives of Portielje. Findings of the Court
58. First, it should be noted that it is apparent from the analysis of the first ground of appeal that the General Court was incorrect to hold that the Commission was not entitled to apply the presumption of actual exercise of decisive influence for the purpose of establishing that, as a result of such influence, Portielje and Gosselin formed, during the period from 1 January 2002 to 18 September 2002, a single undertaking for the purpose of Article 81 EC. The only question before the Court for the purpose of the first ground of appeal is therefore whether the General Court erred in law in finding that Portielje adduced evidence capable of rebutting that presumption.
59. The question whether the General Court has taken the right legal criteria as the basis for its appraisal of the facts and the evidence is a question of law, which is amenable to review by the Court of Justice on appeal (see, to that effect, Case C‑109/10 P Solvay v Commission [2011] ECR I‑0000, paragraph 51 and the case‑law cited). That is precisely the question put before the Court by the Commission in the second and third parts of its second ground of appeal, concerning paragraph 54 and paragraphs 55 to 57 respectively of the judgment under appeal.
60. As is apparent from the analysis of the first ground of appeal, in order to establish whether the author of the infringement decides independently upon its own conduct on the market, account must be taken of all the relevant factors relating to the economic, organisational and legal links which tie that author to its holding entity, which may vary from case to case and cannot therefore be set out in an exhaustive list (see, to that effect, Akzo Nobel and Others v Commission , paragraphs 73 and 74; Elf Aquitaine v Commission , paragraph 58; and Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others , paragraph 45).
61. In the present case, the General Court stated at paragraph 54 of the judgment under appeal that the issue of Gosselin’s certificates in the foundation was recorded only on 11 December 2002, that Article 5.2 of Portielje’s articles of association also permit decisions to be taken in writing and, according to Portielje - which, according to the General Court, was not contradicted in that regard by the Commission - such a case had arisen only once before the meeting of 5 November 2004, namely on 10 March 2003 in order to prepare the 2002 annual report. The General Court concluded from this that it must be held that Portielje had acted in accordance with its articles of association and that both the written procedure of 10 March 2003 and the first formal meeting of 5 November 2004 were held after the end of the infringement. It concluded, also at paragraph 54, as follows: ‘[t]hat Portielje exerted a decisive influence over the conduct of its subsidiary is therefore ruled out on that ground alone’.
62. Nevertheless, the General Court added, first of all, at paragraph 55 of the judgment under appeal, that as Portielje’s sole activity consisted in exercising the voting rights linked to the shares in question at the general meeting of Gosselin’s shareholders, ‘[t]he only way Portielje could influence Gosselin’s policy was … to use those voting rights at that company’s general meeting’. It pointed out, however, that it had been established that, during the period of the infringement, namely from 1 January 2002 to 18 September 2002, no meeting of Gosselin’s shareholders was held. Next, at paragraph 56 of the judgment, it stated that, during that period, Portielje did not alter the composition of Gosselin’s board of directors, observing in that connection that ‘[t]he members of Gosselin’s board of directors were already directors of that company before Portielje acquired Gosselin’s shares as trustee’ and that ‘[t]hat time sequence shows that their presence on the board of directors does not indicate influence on the part of Portielje’.
63. Lastly, at paragraph 57 of the judgment under appeal, the General Court stated that it was necessary to reject the argument that the three persons who constituted Gosselin’s board of directors, but who represented only half of Portielje’s board of directors, controlled Gosselin ‘not in their capacity as directors of the company but through the influence exerted by Portielje over Gosselin’s general meeting’ and expressed the view that ‘the fact that the board members are partly the same cannot mean that all the undertakings in which the three members of Gosselin’s board of directors are also represented in that capacity are therefore to be regarded as parent companies of Gosselin’. It also stated at paragraph 57 that, in the present case, ‘Gosselin’s three directors were among the owners of Portielje, which was only an instrument for exercising ownership rights’ and that ‘[a]ccordingly, even if those three persons did not act only as directors of Gosselin, it is more likely that they acted in their own interests’.
64. In the light of the foregoing, the General Court concluded, at paragraph 58 of the judgment under appeal, that ‘Portielje has adduced evidence to show that it did not exert a decisive influence over Gosselin, or even that it was unable to exert such an influence’ and that Portielje had thus succeeded in rebutting the presumption of actual exercise of decisive influence established inter alia by Akzo Nobel and Others v Commission .
65. It is apparent from the foregoing, first, that the General Court considered, at paragraph 54 of the judgment under appeal, that the fact that the holding entity did not adopt any formal management decision during the period for which it is held jointly and severally liable for payment of the fine is sufficient in itself to rebut the presumption of actual exercise of decisive influence. It thus took the view that decisive influence may be exerted over the author of the infringement by the holding entity only where that entity adopts management decisions which comply with the formal requirements of company law.
66. In so deciding, the General Court erred in law. It is clear from the Court’s settled case‑law cited at paragraph 60 above that, in order to establish whether the author of the infringement decides independently upon its conduct on the market, it is necessary for account to be taken of all the relevant factors relating to the economic, organisational and legal links which tie that author to its holding entity and, therefore, of economic reality. The mere fact that the holding entity did not adopt any management decision in a manner consistent with the formal requirements of company law will not therefore suffice for that purpose.
67. Second, the General Court’s analysis at paragraphs 55 to 57 of the judgment under appeal is vitiated by the same error of law. It is apparent from the matters set out at paragraphs 62 and 63 above that the General Court found that the presumption of actual exercise of decisive influence had been rebutted purely on the basis of an analysis conducted by reference to company law and did not, before reaching that conclusion, take account of all the relevant factors relating to the economic, organisational and legal links which tie Portielje to Gosselin. In particular, while, at paragraph 57 of the judgment under appeal, the General Court would appear to consider the personal links that exist between Portielje and Gosselin, it is none the less apparent from the wording of that paragraph that that court examined those links simply from a company law perspective. There is therefore nothing in the reasoning adopted by the General Court at paragraphs 55 to 57 or indeed other paragraphs of its judgment to indicate that it took account of other factors as the basis for its conclusion that Portielje had succeeded in rebutting that presumption by establishing that Gosselin determined its policy independently during the period in question.
68. In so doing, the General Court also failed to have regard to the case‑law cited at paragraph 60 above, in particular, as observed by the Advocate General at point 74 of her Opinion, the fact that a finding that the author of the infringement and its holding entity form an economic unit does not necessarily presuppose the adoption of formal decisions by statutory organs and that, on the contrary, that unit may also have an informal basis, consisting inter alia in personal links between the legal entities comprising such an economic unit.
69. The Court therefore finds that the second and third part of the second ground of appeal are well founded, without there being any need to examine the first part, by which the Commission alleges distortion of the clear sense of the evidence.
70. That finding is not affected by Portielje’s claim that an approach requiring account to be taken of other factors than those merely pertaining to company law would have the effect of rendering the presumption of actual exercise of decisive influence irrebuttable.
71. According to the Court’s case‑law, a presumption remains within acceptable limits so long as it is proportionate to the legitimate aim pursued, it is possible to adduce evidence to the contrary and the rights of the defence are safeguarded. The fact that it is difficult to adduce the necessary evidence to the contrary in order to rebut the presumption or the mere fact that an entity does not, in a given case, produce evidence capable of rebutting a presumption does not, in itself, mean that that presumption cannot in fact be rebutted, especially where, as is the case with the presumption at issue, the entities against which the presumption operates are those best placed to seek that evidence within their own sphere of activity ( Elf Aquitaine v Commission , paragraphs 62, 66 and 70).
72. No infringement of Article 47 of the Charter of Fundamental Rights of the European Union or Article 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, may therefore be established.
73. Since the grounds of appeal are therefore well founded, they must be upheld and paragraphs 4 and 6 of the operative part of the judgment under appeal, by which the General Court annulled the contested decision as amended, in so far as it concerned Portielje, and ordered the Commission to pay the costs in Case T‑209/08, set aside. The action before the General Court
74. In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, where the appeal is well founded, the Court may, if the decision of the General Court is set aside, give final judgment in the matter where the state of the proceedings so permits. The Court considers that to be the position in the present case.
75. As is apparent from paragraph 19 above, Portielje relied on five pleas in law before the General Court, the first by way of main argument and the remaining four as arguments put forward in the alternative, claiming that it can incur liability for the infringement committed by Gosselin only if the latter itself infringed Article 81 EC. The first plea in law
76. By the first plea in support of its action, Portielje submits that, since it did not engage in any economic activity, it cannot be classified as an undertaking for the purpose of Article 81(1) EC or Article 23(2) of Regulation No 1/2003. As a consequence, the rules of EU competition law cannot be applied to it and the Commission could not, therefore, have held it liable for the infringement committed by Gosselin without itself acting in breach of those provisions.
77. It is sufficient to observe in that regard that it is apparent from the analysis of the first ground of appeal that the first plea in law before the General Court is unfounded. The second plea in law
78. By this plea, Portielje maintains that it demonstrated that it exerted no decisive influence over the commercial or strategic policy of Gosselin. By taking the opposite view in the contested decision, the Commission infringed Article 81(1) EC and Article 23(2) of Regulation No 1/2003.
79. The Commission takes the view that this plea is unfounded.
80. First, it should be noted that, as is apparent from the contested decision, between 1 January 2002 and 18 September 2002 Portielje controlled virtually all Gosselin’s share capital and, as a consequence, the Commission was entitled to presume, as is clear from the analysis of the first ground of appeal, that Portielje actually exercised decisive influence over Gosselin’s commercial policy during that period and that Portielje and Gosselin thus formed, during that period, a single undertaking for the purpose of Article 81 EC. The onus was therefore on Portielje, in order to rebut that presumption, to adduce any evidence capable of proving that Gosselin acted independently on the market during that period.
81. In the present case, Portielje relied before the General Court, first, on the fact that its board of directors met for the first time only after the end of the infringement. Second, it stated that its only activity consisted in exercising the voting rights linked to the shares in question at the general meeting of Gosselin’s shareholders, whereas, under Belgian company law, it is not the general meeting of the shareholders but the board of directors of the company which is responsible for the management of the company and, in any event, no meeting of Gosselin’s shareholders was held during the period concerned. Third, Portielje had no influence over the composition of Gosselin’s board of directors, since that had already been established before 1 January 2002 and its composition was not altered during the period concerned. Portielje infers from those considerations that it was in, practical terms, impossible for it to have exerted any influence whatsoever over Gosselin.
82. In its reply, Portielje adds that: (i) the issue of certificates in the foundation was registered only on 11 December 2002; (ii) of the six persons constituting its board of directors, only half also sat on Gosselin’s board of directors; (iii) only Portielje’s board of directors, not its directors acting outside the bounds of any statutory organ, has management powers; and (iv) its first decision was in written form and also after the end of the infringement.
83. It should be noted, in that regard, first, that, as is apparent from the analysis of the second ground of appeal, such factors are not in themselves, in principle and in the absence of special circumstances, sufficient to establish that the presumption of actual exercise of decisive influence has been rebutted.
84. Next, the Commission stated at recital 451 of the contested decision that Portielje had confirmed that ‘its object [is] to acquire bearer shares in return for the issue of bearer certificates, to manage the shares thus acquired, to exercise all rights attaching to the shares, such as the right to receive any remuneration in its entirety and to exercise voting rights, as well as to carry out any other activity having a connection, in the broadest sense of the term, with the foregoing or which may facilitate it’ and, at recital 452, that Portielje ‘does not dispute that its objective is to ensure the uniform management of Gosselin and other subsidiaries’.
85. Moreover, it is apparent from Gosselin’s articles of association and recitals 46, 446 and 452 of the contested decision that, during the period in question, Portielje and Gosselin were managed by the same persons, which Portielje confirmed in its reply to the statement of objections. Indeed, the same three persons holding the majority of the voting rights within Portielje’s board of directors, where, as a general rule, decisions are taken by simple majority, comprised at the same time the entire board of directors of Gosselin.
86. Lastly, apart from the formal evidence referred to at paragraphs 81 and 82 above, Portielje has failed to furnish any concrete evidence capable of demonstrating that, notwithstanding the conflict of interests arising in particular as a result of the existence of those particularly strong personal links and the objective pursued by Portielje, Gosselin acted independently on the market during the period in question.
87. It follows from the foregoing that the second plea relied on before the General Court cannot succeed. The third plea in law
88. By the third plea in support of its action, Portielje submits that the Commission infringed Article 81 EC in two respects. First, it claims that the Commission failed to establish that the conduct imputed to Gosselin may be classified as an appreciable restriction of competition within the meaning of Article 81 EC. Second, the Commission also failed to establish that the agreement in which Gosselin participated was capable of having an appreciable effect on trade between Member States. The fact that the services in question are international removal services is insufficient for that purpose and the Commission was wrong to refer to the turnover and market share thresholds alluded to at point 53 of the Guidelines on the effect on trade, especially because that provision does not apply to an agreement such as that in question and because the Commission failed to define the relevant market.
89. According to the Commission, this plea is unfounded.
90. First, it should be recalled that Gosselin was held liable for the infringement in question only as of 31 January 1992 and it is apparent inter alia from recital 307 of the contested decision that it was held liable, in connection with the single and continuous infringement established by the Commission, only in respect of the agreement on commissions and the agreement on cover quotes, not the agreement on prices, which was no longer implemented in the manner initially agreed when Gosselin became involved in the cartel.
91. With regard to Portielje’s line of argument, it should be observed, first, that in the contested decision the Commission recognised the existence of restriction of competition at recitals 346 to 370 of the decision. It observed in particular, at recital 349, that ‘[t]he object of the agreement on prices, the agreement on commissions and the agreement on cover quotes is to establish and maintain a high price level for international removal services in Belgium and to share that market’.
92. With regard in particular to the agreement on commissions, the Commission stated, at recitals 351 to 357 of the contested decision, that depending, inter alia, on the circumstances of each individual case, the commissions entailed the direct or indirect fixing of prices for those services, manipulation of the procedure for the submission of tenders and client-sharing and resulted in a higher level of prices for those services than would have been obtained in a competitive environment. As for the agreement on cover quotes, the Commission stated, at recitals 356 to 360 of the decision, that that consisted in a manipulation of the procedure for the submission of tenders, distorting customer choice and resulting in a price level higher than it would have been obtained in a competitive environment.
93. The Commission expressed the view, at recitals 361 to 365 of the contested decision, that both direct and indirect price‑fixing and the sharing of the market and customers by their very nature have the effect of restricting competition within the meaning of Article 81 EC and that the manipulation of the procedure for the submission of tenders also constitutes such a restriction. It concluded, at recital 366 of the decision, that ‘the object of that set of agreements was to restrict competition within the meaning of Article 81 EC’.
94. Moreover, in its application before the General Court, Portielje ‘accepts that Gosselin received or paid commissions in connection with specific international removals and that it requested or provided cover quotes in connection with other specific international removals’. Portielje does not therefore dispute that Gosselin participated in the agreements on commissions and the agreements on cover quotes. It merely submits that, unlike the agreement on prices, those agreements cannot be classified as appreciable restrictions of competition within the meaning of Article 81 EC, since, in so far as concerns Gosselin, the fact that it received or charged commission and requested or provided cover quotes does not in any way mean that it was involved in customer‑sharing or any agreement on prices.
95. However, it is clear, first, that the object of the agreements in which Gosselin participated was, as is apparent from the very nature of those agreements and as the Commission rightly demonstrated in the contested decision, to fix an artificially high price level for the removal services in question and to share customers for those services. The agreements therefore constituted forms of collusion that were particularly injurious to the proper functioning of normal competition. Gosselin’s claim that that was not the case and the fact that it did not participate in the agreement on prices are irrelevant in that regard and cannot, therefore, lead to the conclusion that the Commission erred in its classification of the agreements on commissions and cover quotes as agreements whose object was to restrict competition appreciably for the purpose of Article 81 EC.
96. Next, the argument that there was no justification for the Commission’s imputing to Gosselin liability for the client‑sharing agreements and the agreements on prices is based on the premiss that the agreements on commissions and cover quotes - which it is not disputed Gosselin participated in - cannot be classified as client‑sharing agreements or agreements on prices. It is clear from paragraph 95 that such a premiss is incorrect. That argument must therefore be rejected.
97. Lastly, it is the Court’s established case‑law that, for the purpose of applying Article 81(1) EC, there is no need to take account of the actual effects of an agreement once it appears that it has as its object the prevention, restriction or distortion of competition within the common market (Joined Cases 56/64 and 58/64 Consten and Grundig v Commission , English Special Edition 1966, pp. 299, 342, and Aalborg Portland and Others v Commission , paragraph 261).
98. As a consequence, the claim that the agreements on commissions and cover quotes did not have the effect of restricting competition appreciably, especially in the manner in which they were implemented by Gosselin, cannot, even if proven, render the contested decision unlawful, the Commission being entitled to take the view that the object of those agreements was to restrict competition appreciably for the purpose of Article 81(1) EC, as observed by the Court at paragraph 95 above.
99. Second, it should be noted that, according to the Court’s case law, if an agreement, decision or concerted practice is to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or fact, that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that it might hinder the attainment of a single market between Member States. Moreover, the effect must not be insignificant (Case C‑238/05 Asnef-Equifax and Administración del Estado [2006] ECR I‑11125, paragraph 34 and the case-law cited, and Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/05 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, paragraph 36).
100. Thus, the Court has already held that a cartel extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thus impeding the economic interpenetration which the FEU Treaty is designed to bring about and is therefore capable of affecting trade between Member States within the meaning of Article 81(1) EC (see, to that effect, Case C‑35/99 Arduino [2002] ECR I‑1529, paragraph 33; Asnef-Equifax and Administración del Estado , paragraph 37 and the case-law cited; and Erste Group Bank and Others v Commission , paragraph 38) and that, where the services concerned have a cross border dimension, that is a relevant factor in determining whether trade between Member States is affected within the meaning of that provision (see, by analogy, Case 311/85 Vereniging van Vlaamse Reisbureaus [1987] ECR 3801, paragraphs 18 and 21).
101. Moreover, the sole purpose of the definition of the relevant market for the purposes of applying Article 81(1) EC is to determine whether the agreement in question may affect trade between Member States and has the object or effect of preventing, restricting or distorting competition within the common market (the order of 16 February 2006 in Case C‑111/04 P Adriatica di Navigazione v Commission , paragraph 31).
102. In the present case, the Commission concluded, at recitals 372 and 373 of the contested decision, that the agreements in question were ‘capable of having an appreciable effect on trade between Member States’, in the light, inter alia, of the fact that the services in question had a cross‑border dimension and that ‘the total market shares of the removal companies in question exceeds 5% of the market for international removal services in Belgium … their total market share [being] approximately 50%’. The Commission also described the market at issue at recitals 88 to 94 of the contested decision, in which it stated inter alia that the services concerned are ‘international removal services in Belgium, and, accordingly “door-to-door” removal services, with Belgium as either the starting place or the destination”, and that the market share of the cartel members for 2002 was ‘approximately 50%’. It also stated that, given that ‘Belgium forms part of important geo‑political centres and is … a commercial hub’, a great many multinational companies which are established or have a branch in Belgium have recourse to international removal companies for the removal of their goods or those of their employees and the geographic centre of the cartel was in Belgium.
103. It is apparent from the foregoing, first, that the description of the market in the contested decision is, in accordance with the case‑law cited at paragraph 101 above, sufficient for the purpose of determining whether the cartel in question may have an effect on trade between Member States. Furthermore, contrary to what is claimed by Portielje, there are no grounds for concluding that the Commission omitted to define the relevant market because, in recitals 88 to 94 of that decision, it defined the size of the product market and of the geographic market affected by the cartel, namely the international Belgian removal services market. That description was therefore sufficient to enable it to ascertain the market share threshold referred to in point 53 of the Guidelines on the effect on trade.
104. Next, first, it is apparent from the file on the case before the General Court that the total relevant market share held by the members of the cartel is considerably in excess of 5%. Second, in the light of both the case‑law cited at paragraph 100 above and the characteristics of the infringement at issue, as identified by the Commission in the contested decision, the requirement laid down in point 53 of the Guidelines on the effect on trade relating to the nature of the cartel in question is clearly fulfilled.
105. In those circumstances and bearing in mind in particular the fact that the 5% market share threshold laid down at point 53 of the Guidelines on the effect on trade was clearly exceeded, the Commission was justified in concluding that the agreements in question were capable of having an appreciable effect on trade between Member States for the purpose of Article 81(1) EC.
106. Lastly, since, according to point 53 of the Guidelines on the effect on trade, where the 5% market share threshold is exceeded, that may, in principle, for cartels such as that at issue in the present case, be sufficient in itself to demonstrate an appreciable effect on trade between Member States and given that that threshold was considerably exceeded in the present case, the argument by which Portielje seeks to establish that the Commission failed to show that that condition for the application of Article 81 EC was satisfied may be rejected, without there being any need for the Court to rule on the other matters raised by Portielje.
107. It follows from the foregoing that the third plea relied on by Portielje in the action before the General Court must be rejected since neither of its two parts is well founded. The fourth plea in law
108. By the fourth plea in support of its action, Portielje claims that, when calculating the fine imposed on Gosselin, the Commission infringed Article 23(2)(a) and (3) of Regulation No 1/2003 and the Guidelines on the method of setting fines, first of all, in its determination of the seriousness of the infringement committed by Gosselin. It infringed those provisions, secondly, by applying, for the purpose of calculating the basic amount of the fine imposed on Gosselin, the value of sales achieved by it during the period from 1 July 2000 to 30 June 2001, instead of the sales achieved between 1 July 2001 and 30 June 2002 and, thirdly, by rejecting the mitigating circumstances put forward by Gosselin.
109. The Commission contends, in essence, that the fourth plea should be rejected.
110. First, Portielje’s argument that, in its assessment of the gravity of the infringement committed by Gosselin, the Commission failed to take account of all the relevant circumstances of the case is also based on the premiss that, first, there is a qualitative distinction to be made between participation merely in the agreements on commissions and cover quotes and participation in the agreement on prices and, second, the agreements in which Gosselin participated were not among the most serious restrictions of competition. According to Portielje, there was therefore no basis for the Commission’s conclusion that the infringement committed by Gosselin was of the same degree of seriousness as the infringement committed by the other members of the cartel at issue, especially those who participated in the agreement on prices, and it was not therefore entitled to apply, for the purpose of determining the basic amount of the fine, the same proportion of 17% of the value of sales to all the cartel members.
111. However, it is clear from the analysis of the first part of the third plea in law invoked before the General Court that that premiss is incorrect, since the Commission was fully entitled to classify the agreements on commissions and cover quotes as agreements on prices and customer‑sharing and such agreements, like agreements on prices, clearly form part of the category of the most serious restrictions of competition. Accordingly, that argument must be rejected as must, on the same ground, Portielje’s claim that the fine imposed on Gosselin should be reduced by the Court in the exercise of its unlimited jurisdiction.
112. Second, it should be recalled that, by the amending decision, the Commission modified the contested decision in so far as concerns the value of sales achieved by Gosselin used as the basis of the calculation of the fine imposed on it, by recalculating that fine by reference to the value of sales achieved by that company during the period from 1 July 2001 to 30 June 2002 and modifying, as a result, the fine which had been imposed on it. The second part of Portielje’s argument has therefore become devoid of purpose.
113. Third, with regard to mitigating circumstances, Portielje seeks, in essence, the benefit of the mitigating circumstance deriving from the fact that it participated to a limited degree in the infringement and played a minor role in it, which essentially corresponds to the mitigating circumstance set out in the third indent of point 29 of the Guidelines on the method of setting fines, as well as the benefit of the mitigating circumstance set out in the fifth indent of point 29.
114. It should be noted in that regard, first, that, according to the third indent of point 29 of the Guidelines on the method of setting fines, ‘where the undertaking provides evidence that its involvement in the infringement is substantially limited and thus demonstrates that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market’, the Commission may find that mitigating circumstances exist and reduce the basic amount of the fine.
115. However, the mere fact that Gosselin did not participate in the agreement on prices and did not participate in any meeting of the cartel is not sufficient, in itself, to establish that the requirements laid down in the third indent of point 29 of the Guidelines on the method of setting fines are fulfilled or indeed that Gosselin played a limited role in the cartel at issue, in view of the fact, in particular, as already observed at paragraph 90 above, that that company was not held liable in respect of participation in the agreement on prices and, during the period of its involvement in the cartel, the cartel operated without any need for its members to hold meetings.
116. Moreover, it should be noted that, even though, as Portielje claims, the Commission was not entitled, for the purpose of denying it the benefit of that mitigating circumstance, to rely on the fact that Gosselin was held liable for a single and continuous infringement, it is apparent in particular from recital 280 of the contested decision that the Commission was in possession of a great deal of direct evidence of Gosselin’s participation in the agreements on commissions and cover quotes. In any event, that evidence was already sufficient in itself to dismiss any claim that Gosselin’s participation in the cartel was limited.
117. In those circumstances, Portielje has failed to establish that the Commission erred in refusing, in the contested decision, to afford Gosselin the benefit of the mitigating circumstance pertaining to its limited participation and its minor role in the cartel.
118. Furthermore, with regard to the assertion that Gosselin’s anti‑competitive conduct was authorised by public authorities, it is sufficient to note that, apart from mere unsubstantiated claims, Portielje has failed to adduce any evidence capable of demonstrating that the Commission, as an institution, authorised or encouraged the conclusion of agreements on commissions or cover quotes within the meaning of the fifth indent of point 29 of the Guidelines on the method of setting fines. As a consequence, it has not been established that the Commission wrongly refused to afford Gosselin the benefit of that mitigating circumstance.
119. It follows that, in so far as it has retained its purpose, the fourth plea in law relied on before the General Court is unfounded. The fifth plea in law
120. By the fifth plea in law in support of its action, Portielje submits that, even if its third and fourth pleas are rejected, the contested decision should be annulled on the ground of infringement of the principle of equal treatment, on the one hand, in so far as an objective and qualitative distinction may be made between Gosselin’s conduct and that of the other members of the cartel at issue, Gosselin not having participated in agreements on prices or on customer‑sharing, and, on the other, in so far as the Commission applied, for the purpose of determining the basic amount of the fine, the value of sales achieved by Gosselin during the second‑last accounting period preceding the end of the infringement.
121. It is sufficient to observe in that regard, first, that it is clear from the analysis of the first part of the third plea relied on before the General Court that the agreements in which Gosselin participated were correctly classified by the Commission as agreements on prices and customer‑sharing and that, accordingly, Gosselin’s conduct was in essence no different from that of the other members of the cartel. Second, as was held at paragraph 112 above, the second part of Portielje’s argument no longer has any purpose because the Commission adopted the amending decision. The fifth plea in law cannot, therefore, succeed.
122. It follows from the foregoing that, as none of the pleas in law relied on by Portielje in support of its action for annulment before the General Court is well founded, that action must be dismissed in its entirety. Costs
123. Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court of Justice itself gives final judgment in the case, it is to make a decision as to costs. Article 138(1) of those rules, applicable to appeal proceedings in accordance with Article 184(1), provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
124. In the present case, since Portielje has been unsuccessful in its submissions in both the appeal and its action for annulment in Case T‑209/08 and the Commission has applied for an order that it pay the costs of both those sets of proceedings, Portielje must be ordered to pay the costs of the appeal proceedings and the proceedings before the General Court.