European Union: Beers On Grolsch As General Court Annuls Cartel Fine

On 15 September, the General Court annulled (not available in English) a fine of €31.7 million imposed on Grolsch for its participation in the Dutch beer cartel. In its decision, the Commission had held only the Grolsch parent company liable for the cartel. Grolsch appealed, arguing that only one of the directors identified as having attended cartel meetings was actually an employee of the parent company. All of the others were employees of its subsidiary Grolsche Bierbrouwerij Nederland (Grolsch Netherlands). The General Court agreed, and upheld Grolsch's appeal, concluding that proof of attendance at one meeting by a director of the Grolsch parent company was insufficient evidence on which to base a decision that the Grolsch parent company had participated in a single continuous infringement from 1996 to 1999.

Furthermore, the Court found that the Commission could not hold the Grolsch parent company liable for the actions of Grolsch Netherlands. The Commission had failed to include in its decision any justification for attributing the conduct of Grolsch Netherlands to the Grolsch parent company, thereby denying Grolsch the opportunity to challenge the Commission's conclusions. As Grolsch Netherlands was not named in the decision at all, the General Court annulled the fine in its entirety.

As a matter of EU law, there is a presumption that a parent of a wholly-owned subsidiary exercises decisive influence over it and can therefore be found jointly and severally liable, with the subsidiary for any infringement of competition law committed by the subsidiary. In such cases, the Commission must prove only that the subsidiary is wholly-owned, but must include reasoning to that effect in its statement of objections and decision. The burden of proof is then on the parent company to show that it does not, in fact, exercise decisive influence over the subsidiary. In its Dutch beer

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