This matter goes back to 2008, when the European Commission had sanctioned various participants in a cartel on the international removal services market, one of which was Gosselin Group NV, which it had fined 3.28 million euros. The Portielje foundation had been held jointly and severally liable for the payment of part of the fine as (i) it held 100% of Gosselin’s capital for part of the period during which the infringement was committed and (ii) it had not succeeded in rebutting the presumption that it exercised a decisive influence over Gosselin.

The June 16, 2011 judgment of the General Court of the European Union had annulled the Commission’s decision with regard to Portielje, ruling that Portielje could not be sanctioned for its subsidiaries’ conduct as it was not itself an “undertaking” engaging in an economic activity, within the meaning of competition law, since it held “only in trust, shares which were previously held by the family shareholders themselves”. The General Court had in addition found that, even if Portielje could be deemed an undertaking, it had nevertheless managed to rebut the presumption of actually exercising a decisive influence over Gosselin, on the grounds that it had not adopted any formal management decision during the period in question.

The European Court of Justice (ECJ) considered that the General Court had committed an error in law on those two points. On the first point, the ECJ made clear 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”. According to the ECJ, the fact that the entity holding (virtually) all the capital of another entity is constituted in the legal form of a foundation rather than a company, or that it does not itself engage in any economic activity, is irrelevant. On the second point, the ECJ considered that the mere fact that a parent company has not adopted any management decision concerning the company against which the objections are being made is not sufficient to rebut the presumption of liability, insofar as a decisive influence can also be exercised informally, particularly as a result of the personal links existing between the legal entities comprising the economic unit.

The ECJ therefore annulled the General Court judgment and confirmed the fine imposed on the foundation. One more instance of the broad application of the presumption of parent companies’ liability…