On 15 September 2011, the General Court ("GC") handed down its judgment on an appeal brought by Koninklijke Grolsch NV against the European Commission's decision of 18 April 2007, fining it € 31.66 million for its participation in a cartel affecting the beer market in the Netherlands between 1996 and 1999. According to the Commission's decision, three Dutch brewers – Bavaria NV, Koninklijke Grolsch NV and Heineken NV – together with the InBev group, participated in price-fixing and market-sharing activities, organised during a number of unofficial meetings. While InBev received full immunity from fines under the Commission's leniency programme, the other participants in the cartel were subject to fines totalling more than € 273 million for this infringement (see VBB on Competition Law, Volume 2007, No. 5, available at www.vbb.com). Koninklijke Grolsch subsequently appealed against the Commission's decision.
Before the GC, Koninklijke Grolsch argued, among other things, that the employees of its wholly-owned subsidiary, Grolsche Bierbrouwerij Nederland BV, attended most of the unofficial meetings and thus, that the Commission should not have found that Koninklijke Grolsch participated in the infringement. Koninklijke Grolsch further argued that the Commission was in breach of its obligation to state reasons by having in fact attributed liability to it for an infringement committed by its subsidiary, without specifying all the matters of fact and of law justifying this attribution of liability.
In its judgment, the GC first considered that the evidence available to the Commission was not sufficient to establish the direct participation of Koninklijke Grolsch in the cartel. Second, the GC observed that, in the case of a parent company held liable for the conduct of its subsidiary, as in the case at hand, the Commission decision must contain a detailed statement of reasons for attributing the infringement to the parent company. Third, the GC explicitly recalled that there is a rebuttable presumption that a subsidiary which is wholly-owned by a parent company does not freely determine its own conduct on the market and that it is sufficient for the Commission to show that the entire capital of a subsidiary is held by the parent company to be able to hold the parent company jointly and severally liable for the conduct of its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to prove that its subsidiary acted autonomously on the market. In this respect, the GC noted that the Commission decision treated the parent company, Koninklijke Grolsch, and the Grolsch group as one and made no mention of the economic, organisational and legal links between the parent company and its subsidiary. According to the GC, the subsidiary's name was not even mentioned in the statement of reasons in the Commission decision.
The GC concluded that the Commission failed to explain its reason for attributing to Koninklijke Grolsch the conduct of its subsidiary, and thus, denied Koninklijke Grolsch any opportunity to reverse the presumption of parental liability. Consequently, the GC annulled the Commission decision insofar as it concerns Koninklijke Grolsch.
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