In a series of judgments handed down on 11 July 2013, the Court of Justice of the European Union ("ECJ") dismissed appeals brought by five Belgian removal companies against judgments of the General Court ("GC") which largely upheld the European Commission's 2008 decision fining the companies for their participation in the international removal services cartel case. In addition, the ECJ reinstated the fine imposed on Portielje, which the GC had previously annulled.
In the contested decision, the Commission found that ten companies had participated in an international "door-to-door" removal services cartel, operating to and from Belgium from October 1984 to September 2003. The participating companies were found to have agreed on prices, to have provided cover quotes for contracts and to have offered rival companies financial compensation for lost bids known as "commission", this compensation being a hidden element of the final price paid by the consumer (see VBB on Competition Law, Volume 2008, No 3, available at www.vbb.com). Five of the companies fined, some together with their parent companies, applied to the GC seeking annulment of the decision or a reduction of their fine. The GC, for the most part, upheld the Commission's decision. However, the GC reduced the amount of the fine imposed on Gosselin from € 3.28 million to € 2.32 million. The GC also annulled the € 270,000 fine imposed on Portielje – the parent company of Gosselin – holding that it did not constitute an "undertaking" for the purposes of competition law (see VBB on Competition Law www.vbb.com). Gosselin, Team Relocations (together with others) and Ziegler lodged appeals with the ECJ, while the Commission also appealed against the GC's judgment in so far as it annulled the fine imposed on Portielje.
All of the appeals brought by the companies were dismissed and, as a result, the fines imposed on those companies were upheld. The appeal brought by the Commission was, by contrast, successful as the ECJ set aside the GC's judgment. On the one hand, the ECJ found the GC had erred in law by holding that a sanction could be imposed on Portielje only if, viewed in isolation, it could be classified as an undertaking for the purposes of competition law. On the other hand, the ECJ found that, given that Portielje exercised 100% control of Gosselin, the GC had been wrong to hold that the mere fact that Portielje did not take any formal management decision during the period for which it was held jointly and severally liable for payment of the fine was sufficient to rebut the presumption of actual exercise of decisive influence over its wholly-owned subsidiary. For these reasons, the ECJ set aside the GC's judgment insofar as it annulled the fine imposed on Portielje and reinstated the € 270,000 fine originally imposed by the Commission.
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