Koninklijke Grolsch NV v European Commission (T-234/07)

Contents

Judgment of the General Court (Sixth Chamber, Extended Composition)15 September 2011^noteIn Case T-234/07,Koninklijke Grolsch NV, established in Enschede (Netherlands), represented by M. Biesheuvel and J. de Pree, lawyers,vEuropean Commission, represented initially by A. Bouquet, S. Noë and A. Nijenhuis, acting as Agents, and subsequently by A. Bouquet and S. Noë, assisted by M. Slotboom, lawyer,THE GENERAL COURT (Sixth Chamber, Extended Composition),composed of V. Vadapalas, acting for the President, A. Dittrich and L. Truchot (Rapporteur), Judges,Registrar: J. Plingers, Administrator,having regard to the written procedure and further to the hearing on 24 March 2010,gives the following

Judgment

Facts

1The applicant, Koninklijke Grolsch NV, is a company whose business is to produce beer, which it markets under its own brand.

2The Grolsch group is one of the four main operators on the Dutch beer market. The other three leading brewers on that market are, first, the Heineken group (‘Heineken’), which is managed by Heineken NV and whose production is managed by the subsidiary Heineken Nederland BV, second, the InBev group (‘InBev’), which, prior to 2004, was known under the name Interbrew which is managed by InBev SA and whose production is the responsibility of the subsidiary InBev Nederland NV, and, third, Bavaria NV.

3The Grolsch group and the other three leading brewers on that market sell their beer to end-customers, using two distribution channels in particular. A distinction should thus be drawn between the on-trade establishment channel, that is to say, hotels, restaurants and cafes, where drinks are consumed on the premises, and the off-trade channel of supermarkets and off-licences, where beer is sold for home consumption. This latter sector also includes the private label beer segment. Of the four brewers concerned, only InBev and Bavaria are active in that segment.

4The four brewers are members of the Centraal Brouwerij Kantoor (Central Brewery Office (CBK)). This is an umbrella organisation which, according to its statutes, represents the interests of its members and is composed of a general assembly and various working parties, such as the Working Party for on-trade matters and the Working Party on finance, which has become its steering committee. For meetings which take place within the CBK, its secretariat sends the participating members invitations and sequentially numbered official minutes.

Administrative procedure

5By letters of 28 January 2000 and of 3, 25 and 29 February 2000, InBev made a series of statements, together with the annexed statements made by five of its managers (hereinafter referred to, together, as ‘the statement by InBev’), providing information on restrictive business practices on the Dutch beer market. The statement by InBev was made during an investigation conducted by the Commission of the European Communities, in particular in 1999, into cartel activities and a possible abuse of a dominant position on the Belgian beer market. In conjunction with the statement by InBev, InBev made a leniency application in accordance with the Commission notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4).

6Following the statement by InBev, on 17 March 2000 the Commission adopted an investigation decision on the basis of Article 14(3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ English special edition: Series I Chapter 1959-1962 p. 87), as amended most recently by Council Regulation (EC) No 1216/1999 of 10 June 1999 (OJ 1999 L 148, p. 5).

7The first two recitals in that decision state:‘Koninklijke Grolsch NV is a brewing undertaking.The Commission has information that Koninklijke Grolsch NV, the undertakings directly or indirectly controlled by it, including Grolsche Bierbrouwerij Nederland BV, and its main competitors are participating or have participated in agreements and/or concerted practices and/or are contributing or have contributed to the adoption, by [the CBK], of decisions to fix prices, share markets and/or exchange information on the Dutch beer market, both in the retail sales [sector] and in the on-trade sector...’

8Article 1 of that decision provides:‘Koninklijke Grolsch NV and the undertakings directly or indirectly controlled by it, including Grolsche Bierbrouwerij Nederland BV, shall submit to an investigation concerning presumed agreements and/or concerted practices, which have as their object or effect to restrict competition between brewing undertakings in the Netherlands. The agreements and/or concerted practices relate to fixing prices, sharing markets and/or exchanging information on the Dutch beer market, both in the retail trade [sector] and in the on-trade sector... That conduct may also take the form of decisions [of the CBK], an association of undertakings which includes Grolsch.’

9Under Article 3(1) of the investigation decision:‘This decision is addressed to:Koninklijke Grolsch NVBrouwerijstraat 17523 XC EnschedeNederlandand the undertakings directly or indirectly controlled by it, including:Grolsche Bierbrouwerij Nederland BVBrouwerijstraat 17523 XC EnschedeNederland.’

10According to the Commission, inspections were carried out on 22 and 23 March 2000 at ‘Koninklijke Grolsch NV’, at the other three Dutch brewers concerned, and at the offices of the CBK.

11In addition, the Commission notified ‘Grolsch’ of several requests for information.

12On 30 August 2005, the Commission adopted a statement of objections, which was sent to the applicant on 31 August 2005. By letter of 25 November 2005, the applicant submitted its written observations on that statement. None of the undertakings concerned requested an oral hearing.

13On 18 April 2007, the Commission adopted Decision C(2007) 1697 relating to a proceeding under Article 81 [EC] (Case COMP/B-2/37.766 — Dutch beer market) (‘the contested decision’), which was notified to the applicant by letter of 24 April 2007.

The contested decision

14Article 1 of the contested decision states that ‘Grolsch: Koninklijke Grolsch NV’ and the other brewers concerned participated, during the period from 27 February 1996 to 3 November 1999, in a single and continuous infringement of Article 81(1) EC by entering into a complex of agreements and/or concerted practices the object of which was to restrict competition within the common market.

15The infringement consisted, first, in coordinating prices and price increases for beer in the Netherlands, in both the on-trade and the off-trade sector, including with regard to private label beer, and, second, in occasionally coordinating other commercial conditions offered to individual customers in the on-trade sector in the Netherlands, such as loans to businesses, and, third, in occasionally coordinating customer allocation, in both the on-trade and the off-trade sector in the Netherlands (Article 1 of and recitals 257 and 258 to the contested decision).

16According to the contested decision, the anti-competitive conduct of the brewers took place during a cycle of unofficial multilateral meetings which regularly brought together the four main operators on the Dutch beer market and at additional bilateral meetings involving different combinations of the same brewers. These meetings took place secretly, intentionally, because the participants knew that they were not permitted (recitals 257 to 260 to the contested decision).

17Thus, firstly, a series of multilateral meetings known as ‘Catherijne consultation’ or ‘Working Group on agenda’ were held between 27 February 1996 and 3 November 1999. The contested decision finds that the main object of these meetings, which focused on the on-trade sector, but could also deal with the off-trade sector, was to coordinate prices and price increases for beer, to discuss limiting the amount of discounts and customer allocation and to consult on certain other commercial conditions. Prices of private label beer were also discussed in these meetings (recitals 85, 90, 98, 115 to 127 and 247 to 252 to the contested decision).

18Secondly, as far as bilateral contacts between the brewers are concerned, the contested decision states that on 12 May 1997 InBev and Bavaria met and discussed the price increase for private label beer (recital 104 to the contested decision). Furthermore, according to the Commission, Heineken and Bavaria met in 1998 to discuss restrictions relating to points of sale in the on-trade sector (recital 189 to the contested decision). The Commission states that bilateral contacts also took place around 5 July 1999 between Heineken and Grolsch on the subject of compensation granted to customers in the off-trade sector who made temporary price reductions (recitals 212 and 213 to the contested decision).

19Lastly, according to the contested decision, bilateral contacts and exchanges of information took place between InBev and Bavaria in 1997 consisting in general discussions on beer prices and discussions dealing more with private labels. Bilateral contacts, in the form of exchanges of information, on the subject of private labels also involved the Belgian brewers in June and July 1998. The Commission states that those discussions were attended by Heineken and by Grolsch (recitals 105, 222 to 229 and 231 to 236 to the contested decision).

20The finding of this conduct relies to a large extent on the information provided in the statement by InBev (recitals 40 to 62 to the contested decision).

21Furthermore, the Commission considers that the statement by InBev is corroborated by a number of internal documents from the Grolsch group and the other three Dutch brewers, handwritten notes from meetings, expense reports and copies of agendas obtained following investigations and requests for information (recitals 63 to 255 to the contested decision).

22The operative part of the contested decision is worded as follows:‘Article 1The following undertakings participated, during the period from 27 February 1996 to 3 November 1999, in a single and continuous infringement of Article 81 [EC], by entering into a complex of agreements and/or concerted practices the object of which was to restrict competition within the common market, in particular (i) by coordinating prices and price increases for beer in the Netherlands, in both the on-trade [sector] and the off-trade sector, including with regard to private label beer; (ii) by occasionally coordinating other commercial conditions offered to individual customers in the on-trade [sector] in the Netherlands; and (iii) by occasionally coordinating customer allocation, in both the on-trade [sector] and the off-trade [sector] in the Netherlands:InBev: InBev NV and InBev Nederland NVHeineken: Heineken NV and Heineken Nederland BVGrolsch: Koninklijke Grolsch NVBavaria: Bavaria NVArticle 2The undertakings named in Article 1 shall forthwith bring to an end the infringements referred to in that article, if they have not already done so.They shall refrain from any act or conduct referred to in Article 1 and from adopting any measure having the same or equivalent object or effect.Article 3For the infringements referred to in Article 1, the following fines are imposed:(a) Heineken NV and Heineken Nederland BV, jointly and severally: EUR 219275000;(b) Koninklijke Grolsch NV: EUR 31658000;(c) Bavaria NV: EUR 22850000....Article 4This decision is addressed toInBev NV, Brouwerijplein 1, B 3000 Louvain, BelgiumInBev Nederland NV, Ceresstraat 1, 4811 CA Breda, NetherlandsHeineken NV, Vijzelstraat 72, 1017 HL Amsterdam, NetherlandsHeineken Nederland BV, Burgemeester Smeetsweg 1, 2382 PH Zoeterwoude, NetherlandsKoninklijke Grolsch NV, Brouwerslaan 1, 7548 XA Enschede, NetherlandsBavaria NV, De Slater 1, 5737 RV Lieshout, Netherlands....’

Procedure and forms of order sought

23By application lodged at the Registry of the General Court on 3 July 2007, the applicant brought the present action.

24By decision of 10 February 2010, the Court referred the case to the Sixth Chamber (Extended Composition) in accordance with Article 14(1) and Article 51(1) of the Rules of Procedure of the General Court.

25By way of measures of organisation of procedure of 12 February 2010, the Court sent a number of written questions to the parties, which replied within the period allowed.

26The parties presented oral argument and replied to the questions put by the Court at the hearing on 24 March 2010.

27Since the Judge-Rapporteur was prevented from sitting after the oral procedure was closed, the case was reassigned to a new Judge-Rapporteur and the present judgment was deliberated by the three judges whose signatures it bears, in accordance with Article 32(1) of the Rules of Procedure.

28The applicant claims that the Court should:— annul in whole or in part the contested decision, at least to the extent to which it is addressed to the applicant;— annul or, in the alternative, reduce the amount of the fine imposed on it;— order the Commission to pay the costs.

29The Commission contends that the Court should:— dismiss the application;— order the applicant to pay the costs.

Law

30In support of its action, the applicant essentially relies on six pleas, alleging, first, irregularities vitiating the administrative procedure, second, a breach of the obligation to state reasons in relation to the applicant’s direct participation in the infringement established, third, insufficient evidence of the anti-competitive conduct, fourth, the erroneous categorisation of that conduct as participation in a complex of agreements and/or concerted practices within the meaning of Article 81(1) EC, fifth, that the applicant did not participate directly in the single and continuous infringement established and, sixth, the unreasonableness of the amount of the fine.

31The fifth plea, alleging that the applicant did not participate directly in the single and continuous infringement established, should be examined first.

The fifth plea, alleging that the applicant did not participate directly in the single and continuous infringement established

32The applicant disputes that it participated directly in the infringement established. It claims that it was present, in the person of Mr J. T., the chair of its board of directors since 1997, only at the meeting of the Working Party on finance held on 8 January 1999. The other ‘managers from Grolsch’ who are mentioned in recital 19 to the contested decision and who attended all the other meetings in question were employees of its subsidiary Grolsche Bierbrouwerij Nederland BV.

Admissibility of the plea

—Arguments of the parties

33The Commission contests the admissibility of the plea on the ground that the applicant did not challenge the finding that it participated in the infringement either in its reply to the statement of objections or in its reply of 21 December 2001 to a request for information. On the contrary, the applicant had provided information which suggested that it was the employer of the participants at the contested meetings, as listed in recital 19 to the contested decision.

34Since it never raised the present plea sufficiently clearly in the course of the administrative procedure, the applicant is not entitled to rely on it for the first time before the General Court. Where an undertaking has explicitly acknowledged, in the administrative procedure, the substance of the allegations made against it by the Commission in the statement of objections, it is no longer able, in principle, to contest them before the General Court.

35The applicant acknowledges that it did not raise the present plea during the administrative phase, but points out that it denied having committed the infringement in its reply to the statement of objections. It considers that it is able to raise this procedural plea for the first time before the General Court.

36In its view, it is only where an undertaking has expressly acknowledged during the administrative procedure the allegations made against it that it is no longer able to contest them in principle before the General Court. However, it did not acknowledge that it had committed the alleged infringement, still less directly.

—Findings of the Court

37No provision of EU law requires that during the administrative procedure the addressee of a statement of objections must contest the individual matters of fact or of law in it, failing which it will no longer be able to do so subsequently during the judicial proceedings.

38Although an undertaking’s express or implicit acknowledgement of matters of fact or of law during the administrative procedure before the Commission may constitute additional evidence when determining whether an action is well founded, it cannot restrict the actual exercise of a natural or legal person’s right to bring proceedings before the General Court under the Treaty.

39The Commission’s argument that the applicant is not entitled to contest before the General Court the finding that it participated in the offending cartel, since it had failed to do so clearly and precisely during the administrative phase, effectively restricts the applicant’s access to justice and, more specifically, its right for its case to be heard before a court or tribunal.

40In the absence of a specific legal basis, such a restriction is contrary to the fundamental principles of the rule of law and of respect for the rights of the defence. Moreover, the right to an effective remedy and of access to an impartial tribunal are guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1).

41The present plea in law is therefore admissible.

The merits of the plea

—Arguments of the parties

42The applicant takes the view that, since it was represented only at the meeting of the Working Party on finance held on 8 January 1999, in the person of Mr J. T., the Commission should not have found that it participated in the infringement established, but should have imputed to it, if necessary, liability for an infringement committed by its subsidiary Grolsche Bierbrouwerij Nederland, whose employees attended all the other cartel meetings.

43Furthermore, the Commission could not be unaware of the existence of that subsidiary, since it was also an addressee of the investigation decision.

44The Commission considers, in essence, that it had sufficient reason to presume that the participants at the anti-competitive meetings worked for the applicant and that it was therefore involved in the infringement.

45The Commission also points out that, in its reply to the statement of objections, the applicant provided information which suggested that it was the employer of the ‘managers from Grolsch’ identified in recital 19 to the contested decision as participants in the contested meetings.

—Findings of the Court

46In recital 19, the contested decision states:‘The managers from Grolsch who play a role in the evidence in this procedure are:— Mr [P. P. S.] (chair of the board of directors from 1987 to 1996),— Mr [J. T.] (commercial manager from 1990 to 1996, managing director from 1996 to 1997, chair of the board of directors since 1997),— Mr [R. S.] (on-trade manager for the Netherlands from 1992 to 1995, commercial manager for the Netherlands from 1996 to 1999),— Mr [H. O. B.] (on-trade manager from 1996 to 2000),— Mr [P. M.] (off-trade sales manager until 1999, since then commercial manager),— Mr [K. H.] (off-trade sales manager since 2000 and previously market research manager),— Mr [L. S.] (production manager until 1996, since then technology control and services manager).’

47The Commission does not challenge the applicant’s claim that, with the exception of Mr J. T., the chair of its board of directors since 1997, none of the individuals referred to in recital 19 to the contested decision as ‘managers from Grolsch who play a role in the evidence in this procedure’ and whose participation in the contested meetings is imputed to it was employed by the applicant. Nor does the Commission contest that the managers in question were managers from the applicant’s subsidiary, Grolsche Bierbrouwerij Nederland, as is confirmed by their employment contracts and other documents annexed to the applicant’s replies to the written questions asked by the General Court.

48Furthermore, in its written pleadings and its replies to the written questions asked by the General Court, the Commission claimed that it had relied primarily on the applicant’s reply of 21 December 2001 to a request for information which had been sent to it on 10 October 2001 in support of its view that the individuals identified in recital 19 to the contested decision as ‘managers from Grolsch’ worked for the applicant.

49However, it is clear from the text of that reply, first, that Mr R. S. was commercial manager for the Netherlands for Grolsche Bierbrouwerij Nederland from January 1996 to November 1999 and that he is currently a manager for Grolsch International BV and, second, that Mr P. M. ‘has, since November 1999, worked as a commercial manager for Grolsche Bierbrouwerij Nederland BV [and that he] was previously responsible for ‘home consumption’ (retail, off-trade sector) as head of off-trade sales.

50In addition, the applicant stated in paragraph 47 of its reply to the statement of objections that ‘the list of code names was used by Mr [J. T.] not in his capacity as commercial manager for Grolsche Bierbrouwerij Nederland BV, but as chair of the board of directors of Grolsch NV (a post he held from 1997 to 2004) [and that t]his list was not used by others at Grolsch NV or at Grolsche Bierbrouwerij Nederland BV (where the individuals who attended the plenary meetings worked)’.

51Lastly, according to the statement made by Mr J. T. (managing director of Grolsche Bierbrouwerij Nederland from 1996 to 1997 and chair of the applicant’s board of directors since 1997) during the inspection conducted by the Commission on 23 March 2000 and relied on as evidence in recitals 249 and 308 to the contested decision, the person making the statement holds the post of ‘[m]anaging director of Grolsche Bierbrouwerij Nederland BV’.

52Admittedly, according to the contested decision, on 21 October 1996 Mr J. T., together with the managing director of Interbrew Nederland, attended a bilateral meeting on the subject of private labels (recital 250 to the contested decision). It should be noted, however, that on that date Mr J. T. was still employed by the applicant’s subsidiary Grolsche Bierbrouwerij Nederland and that, consequently, he was not yet working for the applicant, as is clear from the applicant’s written replies to the questions asked by the General Court and from the copy of the employment contract which it concluded with Mr J. T. on 2 September 1997 and which was produced before the General Court.

53Similarly, whilst the contested decision mentions that on 10 November 1999 Mr J. T., together with representatives from Heineken, attended a meeting concerning the general development of the European and/or global beer market (recitals 405 and 412 to the contested decision), that meeting was held after 3 November 1999, the end of the period, identified by the Commission, in which the infringement took place.

54According to the contested decision, Mr J. T. always brought to the meetings of the CBK Working Party on finance a document whose purpose was to draw the attention of Interbrew and Bavaria to the fixing of prices for private label beer (recitals 249 and 308 to the contested decision). However, it is not apparent from the contested decision that Mr J. T. attended meetings other than the one held on 8 January 1999, in the course of which, according to his notes on the invitation to that meeting, the subject of beer prices was mentioned (recital 193 to the contested decision).

55There are only three items of evidence mentioned by the contested decision which could establish the applicant’s participation in the impugned conduct: the statement by InBev, the notes taken by Mr J. T. on the invitation to the abovementioned meeting held on 8 January 1999 (recital 193 to the contested decision) and documents discovered at Heineken which include a reference to two telephone contacts by Mr J. T. with the management of Heineken around 5 July 1999 regarding reductions applied by a chain of shops (footnote 473 of the contested decision).

56First, in the statement by InBev, which is the only item of evidence which deals with all the elements of the infringement established, InBev refers in general terms to participation by the Grolsch group, without specifically mentioning the individual participation of the applicant, Koninklijke Grolsch. The individuals from the Grolsch group whose names are mentioned in the statement by InBev are all, with the exception of Mr J. T., employed by the subsidiary Grolsche Bierbrouwerij Nederland.

57The name of Mr J. T. appears only on a list of meeting dates for the CBK Working Party on finance annexed to the statement by InBev and persons who represented the main Dutch brewers at those meetings. It is clear from that list that, during the period in question, Mr J. T. attended four meetings of the Working Party on finance. However, the meeting on 8 January 1999 is the only meeting on the list to be mentioned in the contested decision. Furthermore, according to the statement by InBev, the names of the participants at that meeting are ‘niet bekend’ (unknown).

59In the view of the Commission, those notes show that the discussions on beer prices focused on four aspects: first, promotional measures in the off-trade market, second, the price of cheaper and private label beers, third, the price of cask beer, the large containers used in the on-trade sector of the Dutch beer market and, fourth, the Dutch competition authority, the NMA (recital 194 to the contested decision).

60Third, the Commission infers from the documents discovered at Heineken which include a reference to two telephone contacts by Mr J. T. with the management of Heineken around 5 July 1999 that Heineken made direct contact with the Grolsch group on the subject of price reductions, one and a half months before the actual implementation of the temporary reductions applied by a chain of shops to which the Grolsch group had refused to grant compensation (recital 213 to the contested decision).

61The notes by Mr J. T. on the invitation to the meeting held on 8 January 1999 and the documents discovered at Heineken which include a reference to two telephone contacts by Mr J. T. with the management of Heineken around 5 July 1999 are the only evidence which deals specifically with the possible individual participation by the applicant in the single and continuous infringement established by Article 1 of the contested decision for the period between 27 February 1996 and 3 November 1999.

62First of all, those documents do not contain any evidence of the applicant’s participation in the second and third elements of that infringement, namely ‘occasionally coordinating other commercial conditions [other than prices] offered to individual customers in the on-trade [sector] in the Netherlands’ and ‘coordinating customer allocation, in both the on-trade and the off-trade sector in the Netherlands’.

63Second, as regards the first element of the single and continuous infringement established, namely ‘coordinating prices and price increases for beer in the Netherlands, in both the on-trade and the off-trade sector’, the notes taken by Mr J. T. concerning the meeting held on 8 January 1999 are the only evidence mentioned in the contested decision relating to the applicant’s participation in coordinating prices and price increases in the private label beer segment, which comes solely under the off-trade sector.

64Furthermore, the two telephone contacts made around 5 July 1999 between Heineken and Mr J. T. cannot be considered to relate to this segment of the off-trade sector, since neither Heineken nor the Grolsch group produce private label beers (recitals 7 and 18 to the contested decision).

65However, the complex of agreements and/or concerted practices within the meaning of Article 81 EC, as described in recital 337 to the contested decision, is the result, as is clear from the above presentation of the background to the present dispute, of a complex system of concerted actions undertaken by the four brewers concerned and therefore necessitated regular meetings over a long period (see, to this effect, Case C-8/08 T-Mobile Netherlands and Others [2009] ECR I-4529, paragraph 60).

66In these circumstances, the notes taken by Mr J. T. do not appear, in themselves, to be capable of establishing the applicant’s participation in the continuous concerted action by the four brewers, established by the contested decision, in this segment of the Dutch beer market.

67In view of such isolated evidence of the applicant’s participation in the concerted action with the other three brewers concerned, it cannot be considered to be proven that the applicant participated in the continuous concerted action, found by Article 1 of the contested decision, in coordinating prices and price increases for beer in the Netherlands in respect of private label beer in the off-trade beer segment in the Netherlands.

68Third, because the applicant was not present at any of the meetings between brewers mentioned in the contested decision, with the exception of the meeting held on 8 January 1999, it is also not proven that the applicant participated in the continuous multilateral concerted action with the other three brewers concerned with regard to prices and price increases for beer in the Netherlands in both the on-trade sector and the non-private label beer segment in the off-trade sector.

69On account of the bilateral nature of the contacts between Heineken and Mr J. T. around 5 July 1999, the notes taken by Mr J. T. regarding the meeting held on 8 January 1999 are not, in themselves, capable of proving the applicant’s participation in this continuous multilateral price coordination between the four brewers to which the contested decision is addressed.

70In those circumstances, the handwritten notes by Mr J. T. regarding the meeting held on 8 January 1999 and the two telephone contacts by Mr J. T. with the management of Heineken around 5 July 1999 are not sufficient to establish the applicant’s participation in the single and continuous infringement, as found by the Commission.

71It follows from the foregoing that the Commission wrongly concluded, in recital 399 to the contested decision, that ‘the evidence described [in paragraph] 4 thereof shows that [the applicant,] Koninklijke Grolsch NV, participated directly in the cartel from 27 February 1996 to 3 November 1999’.

72Accordingly, the plea alleging that the applicant did not participate directly in the single and continuous infringement from 27 February 1996 to 3 November 1999, as found in Article 1 of the contested decision, must be upheld.

The second plea, alleging a breach of the obligation to state reasons in relation to the applicant’s direct participation in the infringement established

Arguments of the parties

73The applicant complains that the Commission breached its obligation to state reasons through its allegations concerning its supposed direct participation in the infringement established by the contested decision.

74In its written replies of 27 February 2010 to the questions asked by the General Court, the Commission stated that no distinction was made between the legal persons of Koninklijke Grolsch and its (wholly owned) subsidiary, Grolsche Bierbrouwerij Nederland, and that the participants in the cartel meetings were acting as commercial manager, off-trade manager, managing director, etc. of the Grolsch undertaking, under the control of the legal person Koninklijke Grolsch.

75During the hearing the Commission added that these two companies formed an economic entity and that that economic entity had participated in the infringement.

Findings of the Court

76According to settled case-law, the statement of reasons required under Article 253 EC must be appropriate to the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to carry out its review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 63 and the case-law cited).

77Where, as in the present case, a decision taken in application of Article 81 EC relates to several addressees and raises a problem of imputing liability for the infringement established, it must include an adequate statement of reasons with respect to each of the addressees, in particular those of them who, according to the decision, must bear the liability for the infringement.

78Thus, with regard to a parent company held liable for the behaviour of its subsidiary, such a decision must contain a detailed statement of reasons for imputing the infringement to that company (see, to that effect, Case T-327/94 SCA Holding v Commission [1998] ECR II-1373, paragraphs 78 to 80).

79By its plea, the applicant essentially complains that the Commission in fact imputed to it, without indicating the matters of fact and of law in support of such imputation, the participation in the cartel by its subsidiary, Grolsche Bierbrouwerij Nederland, by virtue of the attendance of employees of the latter company at the contested meetings.

80It is settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (see Case C-97/08 P Akzo Nobel and Others v Commission [2009] ECR I-8237, paragraph 58).

81In those circumstances, the parent company and the subsidiary form the same economic unit and, accordingly, form a single undertaking. Thus, the fact that a parent company and its subsidiary constitute a single undertaking within the meaning of Article 81 EC enables the Commission to address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (Akzo Nobel and Others v Commission, cited above, paragraph 59).

82In the particular case of a parent company having a 100 % shareholding in a subsidiary which has infringed the rules on competition, the parent company is able to exercise decisive influence over the conduct of its subsidiary, and there is a rebuttable presumption that the parent company does in fact exercise decisive influence over the conduct of the subsidiary (Akzo Nobel and Others v Commission, cited above, paragraph 60).

83In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (Akzo Nobel and Others v Commission, cited above, paragraph 61).

84In the present case, however, it should be noted that, after citing, in recital 3 to the contested decision, the Grolsch group among the four breweries which formed the cartel at issue, in recital 18 the Commission equates the applicant with the Grolsch group, to which the applicant’s subsidiary Grolsche Bierbrouwerij Nederland belongs.

85By then listing, in recital 19 to the contested decision, the names of the managers from ‘Grolsch’ who attended the meetings between brewers, without indicating whether they worked for the applicant or for its subsidiary Grolsche Bierbrouwerij Nederland, the Commission treated all the persons concerned as managers of the applicant, whereas, during the period in which the infringement took place, they were all employed by the subsidiary Grolsche Bierbrouwerij, with the exception of Mr J. T.

86After equating the applicant with the Grolsch group, however, the Commission fails to state the reasons why it imputes to the applicant the participation in the cartel by its subsidiary Grolsche Bierbrouwerij Nederland by virtue of the attendance of employees of the latter company at the contested meetings, in accordance with the abovementioned case-law.

87The Commission set outs the applicant’s liability for the infringement established in Article 1 of the contested decision in the following terms:8. 2. Liability in the present case...8. 2.2. Grolsch(399) The evidence described [in paragraph] 4 shows that Koninklijke Grolsch NV participated directly in the cartel from 27 February 1996 to 3 November 1999.’

88The contested decision thus ignores the economic, organisational and legal links between the applicant and its subsidiary and its grounds make no mention of the name of the subsidiary.

89It is therefore apparent that the Commission did not state the reasons which led it, in accordance with the principle which it sets out in recital 397 to the contested decision, ‘to determine the legal person responsible for the operation of the undertaking when the infringement was committed, so that that legal person may be held liable’ or, if necessary, so that that person is able to rebut the rebuttable presumption that the parent company does in fact exercise decisive influence over the conduct of its subsidiary.

90It follows that, in the contested decision the Commission failed to state the reasons for imputing to the applicant the conduct of its subsidiary Grolsche Bierbrouwerij Nederland by virtue of the attendance of employees of the latter company at the contested meetings.

91The Commission has thus deprived the applicant of the possibility to contest the validity of that imputation before the General Court by rebutting the presumption and has not put the General Court in a position to exercise its review in this regard.

92The second plea must therefore be upheld in so far as it alleges a breach of the obligation to state reasons as regards the imputation to the applicant, by reason of the involvement of its subsidiary Grolsche Bierbrouwerij Nederland BV, of the single and continuous infringement from 27 February 1996 to 3 November 1999, as established by Article 1 of the contested decision.

93It is therefore necessary to annul that provision in full and, consequently, the entire operative part of the contested decision, in so as far as they refer to the applicant, without it being necessary to rule on the other pleas raised by it.

94In the light of the foregoing, in so far as it states that the applicant ‘participated, during the period from 27 February 1996 to 3 November 1999, in a single and continuous infringement of Article 81 [EC], by entering into a complex of agreements and/or concerted practices the object of which was to restrict competition within the common market, in particular (i) by coordinating prices and price increases for beer in the Netherlands, in both the on-trade sector and the off-trade sector, including with regard to private label beer; (ii) by occasionally coordinating other commercial conditions offered to individual customers in the on-trade sector in the Netherlands; and (iii) by occasionally coordinating customer allocation, in both the on-trade sector and the off-trade sector in the Netherlands’, Article 1 and, consequently, the entire operative part of the contested decision must be annulled in so far as they refer to the applicant.

Costs

95Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

Operative part

On those grounds,THE GENERAL COURT (Sixth Chamber, Extended Composition)hereby:

1.Annuls Commission Decision C(2007) 1697 of 18 April 2007 relating to a proceeding under Article 81 [EC] (Case COMP/B-2/37.766 — Dutch beer market), to the extent to which it concerns Koninklijke Grolsch NV;

2.Orders the European Commission to pay the costs.

Delivered in open court in Luxembourg on 15 September 2011.