Appeal brought on 18 August 2011 by Gosselin Group NV, formerly Gosselin World Wide Moving NV, against the judgment delivered by the General Court (Eighth Chamber) on 16 June 2011 in Joined Cases T-208/08 and T-209/08 Gosselin Group NV and Stichting Administratiekantoor Portielje v European Commission
(Case C-429/11 P)
Language of the case: Dutch
Parties
Appellant: Gosselin Group NV, formerly Gosselin World Wide Moving NV, (represented by: F. Wijckmans and H. Burez, advocaten)
Other parties to the proceedings: European Commission and Stichting Administratiekantoor Portielje
Form of order sought
Principally, (i) set aside the judgment under appeal
1 in so far as the General Court finds that the unlawful practices by their nature restrict competition and that there is no need to prove anti-competitive effects; and (ii) annul the Decision
2 (as amended and in so far as it relates to the appellant) since it contains no proof of the consequences in terms of competition law of the practices for which the appellant is held liable;
in the alternative, (i) set aside the judgment under appeal in so far as the General Court finds that the Commission was entitled, exceptionally, to rely on the second alternative condition in paragraph 53 of the Guidelines on the effect on trade between States
3 without specifically determining the market within the meaning of paragraph 55 of those guidelines; and (ii) annul the Decision (as amended and in so far as it relates to the appellant) since the Commission did not demonstrate to the requisite legal standard that the practices appreciably affect trade between States;
in the further alternative, (i) set aside the judgment under appeal in so far as the General Court finds that the Commission was not obliged, either in the context of its assessment of the gravity of the infringement or in the context of mitigating circumstances, to take into account the fact that the appellant had not participated in the written price agreements or in the meetings; and (ii) annul the Decision (as amended and in so far as it relates to the appellant) on the same grounds;
in the further alternative, (i) set aside the judgment under appeal in so far as it applies a rate of 17% of relevant sales without taking into account all 30 relevant circumstances, relying inter alia on a minimum threshold of 15%; and (ii) annul the Decision (as amended and in so far as it relates to the appellant) on the same grounds;
in the further alternative, (i) set aside the judgment under appeal in so far as it finds that the appellant's participation between 31 January 1992 and 30 October 1993 is not time-barred; (ii) annul the Decision (as amended and in so far as it relates to the appellant) in so far as the fine imposed the appellant is calculated on the basis of the appellant's participation between 31 January 1992 and 30 October 1993; and (iii) reduce the fine accordingly;
order the European Commission to pay the costs in accordance with Article 69(2) of the Rules of Procedure.
Pleas in law and main arguments
In support of its appeal, Gosselin Group NV submits that the General Court infringed European Union law, erring in law in its characterisation of the facts which it established (cover quotes and commissions) as price agreements and market-sharing practices, and that, at the very least, the judgment under appeal is vitiated by a lack of reasoning in that regard.
In the alternative, Gosselin Group NV submits that the General Court:
- in its assessment of the appreciable effects of the practices at issue on trade between Member States, infringed the rule that the Commission must follow its own guidelines;
- in its assessment of the mitigating circumstances in the context of the calculation of the fine, infringed the principle of the personal nature of liability and also the rule that the Commission must follow its own guidelines;
- in the calculation of the basic amount of the fine, infringed the obligation to state reasons, the principle of the personal nature of liability and also the rule that the Commission must follow its own guidelines. Under the first limb, it is submitted that the General Court erred in its view that the Commission was entitled to rely on paragraph 23 of the Guidelines on setting fines.
4 Under the second limb it is submitted that the General Court erred in law in finding that there is a minimum rate of 15% of the value of sales that is, by definition, the minimum starting point for a fine for serious restrictions of competition. Under the third limb, it is submitted that the General Court erred in law in finding that 17% is equal or almost equal to 15% and in concluding from that that all the relevant circumstances did not have to be taken into account;
- infringed Article 25 of Regulation No 1/2003
5 by ruling that the participation of Gosselin Group NV in the practices at issue in the period from 31 November 1992 to 30 October 1993 is not time-barred.