On 11 July 2013, the European Court of Justice ("ECJ") handed down its judgement in the caseCommission v. Stichting Administratiekantoor Portielje and Gosselin Group NV (C-440/11 P). The ECJ found that the General Court ("GC") had committed errors in law in (i) requiring that the parent be engaged in economic activity before it can be held liable through parental liability established in Akzo Nobel and Others v Commission (C-97/08P) and (ii) accepting as sufficient the evidence adduced to rebut the presumption.
At first instance, the GC accepted Portielje's appeal arguments that the Commission should have established first that as a parent it was involved in an economic activity, thereby rendering it an undertaking in its own right, before it could impute the conduct of its virtually wholly owned subsidiary Gosselin. In the alternative, the GC also found that even if the presumption of decisive influence could be applied to Portielje, it had overcome this presumption through evidence demonstrating that the decisions and meetings of the board of directors had taken place after the infringement. In addition, the GC accepted Portielje's arguments that the personal links between Portielje's and Gosselin's board of directors did not demonstrate that there was exercise of decisive influence, direct or indirect. However, Portielje's win was short-lived.
The ECJ rejected the analysis of the GC as unfounded in the law. The ECJ held that it is not required to find that the parent is involved in an economic activity in its own right before the rebuttable presumption of decisive influence can be applied, given that it was already found to be part of an undertaking together with Gosselin. In addition, the ECJ found that the GC had only looked at national corporate law to find that the rebuttable presumption had been overcome and did not take into account other legal and economic links as established by the jurisprudence. The ECJ therefore held that the GC had committed errors of law and vacated its judgement.
Procedurally, the ECJ used its powers under Article 61 of the Statute of the Court of Justice of the European Union to give a final judgement in the case. It analysed the pleadings submitted by Portielje before the GC and agreed with the Commission's findings that Gosselin's infringement of Article 101 TFEU could be attributed to Portielje through the rebuttable presumption of decisive influence by a parent.