Appeal brought on 26 August 2011 by the European Commission 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-440/11 P)

Language of the case: Dutch

Parties

Appellant: European Commission (represented by: A. Bouquet, S. Noë and F. Ronkes Agerbeek, Agents)

Other parties to the proceedings: Gosselin Group NV, formerly Gosselin World Wide Moving NV, and Stichting Administratiekantoor Portielje

Form of order sought

Set aside the judgment under appeal in so far as it annuls Decision C(2008) 926, as amended by Decision C(2009) 5810, in relation to Stichting Administratiekantoor Portielje;

dismiss the action brought by Portielje;

order Portielje to pay the costs of the proceedings before the General Court and the Court of Justice.

Pleas in law and main arguments

I.    First plea in law: persons covered by Article 101 TFEU

The General Court erred in law in its interpretation of 'undertaking' and the rules concerning the burden of proof regarding responsibility for participation in an infringement of Article 81 EC (now Article 101 TFEU). The General Court concentrated on the wrong issue in paragraphs 36 to 50 of the judgment under appeal, namely whether Portielje was an undertaking. What the General Court should have considered was whether the Commission had been right in proceeding in its decision on the assumption that Portielje was part of the undertaking that had committed the infringement. The principles laid down in Case C-97/08 P Akzo Nobel and Others, ¹ including the presumption arising in the case of a 100% shareholding, are fully applicable in that respect.

II.     Second plea in law: rebuttal of the presumption of decisive influence

A. First part

The General Court made a manifest error of assessment of the evidence in determining that the personal links between Portielje and Gosselin involved only half of Portielje's management, at least in so far as the General Court intended thereby to suggest that the managers in question could not have had any decisive influence on Portielje's policy. After all, together, the persons concerned had sufficient votes on the management board to be able to determine Portielje's policy.

B. Second part

In any event the General Court erred in law in determining that, notwithstanding the personal links, Portielje had rebutted the presumption developed in the case-law with regard to a 100% shareholding since it had not taken any formal management decisions during the relevant period. The General Court's assessment is incompatible with the functional nature of the concept of an undertaking and with the principles laid down in Akzo Nobel and Others.

C. Third part

The General Court also erred in law in finding that Portielje had rebutted the presumption arising in the case of a 100% shareholding since there had been no general meeting of Gosselin during the relevant period. The General Court's assessment in this regard also is incompatible with the functional nature of the concept of an undertaking and with the principles laid down in Akzo Nobel and Others.

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¹ - C-97/08 P Akzo Nobel and Others [2009] ECR I-8237.