CELEX: 62007TJ0234
Language: en
Date: 2011-09-15 00:00:00
Title: Judgment of the General Court (Sixth Chamber, extended composition) of 15 September 2011.#Koninklijke Grolsch NV v European Commission.#Competition - Agreements, decisions and concerted practices - Dutch beer market - Decision finding a single and continuous infringement of Article 81 EC - Applicant found to have participated in the infringement - Insufficient evidence - No proper statement of reasons.#Case T-234/07.

Case T-234/07
      Koninklijke Grolsch NV
      v
      European Commission
      (Competition – Agreements, decisions and concerted practices – Netherlands beer market – Decision finding a single and continuous infringement of Article 81 EC – Applicant found to have participated in the infringement – Insufficient evidence – No statement of reasons)
      Summary of the Judgment
      1.      Actions for annulment – Admissibility – Natural or legal persons – Obligation on an undertaking which is an addressee of a
            statement of objections to challenge the matters of fact or law during the administrative procedure – Restriction of the exercise
            of the right to bring proceedings – Infringement of the fundamental principles of the rule of law and of respect for the rights
            of the defence 
      (Arts 81 EC, 82 EC and 230, fourth para., EC)
      2.      Competition – Agreements, decisions and concerted practices – Evidence – Single and continuous infringement resulting from
            a complex system of concerted actions
      (Art. 81(1) EC)
      3.      Acts of the institutions – Statement of reasons – Obligation – Scope – Decision applying competition rules – Decision relating
            to several addressees
      (Arts 81 EC and 253 EC)
      4.      Competition – European Union rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria
            for assessment – Rebuttable presumption that a parent company exercises decisive influence over its wholly-owned subsidiaries
      (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2))
      1.      In the field of the competition rules, there is no provision of Union law that requires the addressee of a statement of objections
         to contest individual matters of fact or of law in it during the administrative procedure, failing which it will no longer
         be able to do so subsequently during the judicial proceedings. Although 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.
      
      In 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. The right to an effective remedy and of access to an impartial tribunal are,
         moreover, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union.
      
      (see paras 37-38, 40)
      2.      In the field of the competition rules, in the case of a single and continuous infringement consisting of the coordination
         of prices and of price increases for a particular product in a Member State resulting from a complex system of concerted actions
         undertaken by the undertakings concerned, isolated evidence of an undertaking’s participation in that coordination is not
         sufficient to establish the participation of that undertaking in the infringement. The attendance by the chair of the board
         of directors of the undertaking in question at one meeting relating to a single segment of the market at issue constitutes
         isolated evidence.
      
      (see paras 63, 65-67, 71)
      3.      Where a decision applying 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.
      
      Thus, 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.
      
      In that context, where the Commission’s decision finding an infringement of the competition rules ignores the economic, organisational
         and legal links existing between the undertaking in question and its subsidiary and its account of the facts makes no mention
         of the name of the subsidiary, the Commission thereby fails to set out the reasons for imputing to the undertaking in question
         the conduct at issue of its subsidiary. The Commission thus deprives the undertaking of the possibility to contest the validity
         of that imputation before the General Court by rebutting the presumption that a parent company in fact exercises decisive
         influence over the conduct of its subsidiary and the Commission does not put the General Court in a position such as to enable
         it to exercise its review in that regard.
      
      (see paras 77-78, 88-91)
      4.      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. In 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.
      
      In 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. In 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.
      
      (see paras 80-83)
JUDGMENT OF THE GENERAL COURT (Sixth Chamber, Extended Composition)
      15 September 2011 (*)
      
      (Competition – Agreements, decisions and concerted practices – Dutch beer market – Decision finding a single and continuous infringement of Article 81 EC – Applicant found to have participated in the infringement – Insufficient evidence – No statement of reasons)
      In Case T‑234/07,
      Koninklijke Grolsch NV, established in Enschede (Netherlands), represented by M. Biesheuvel and J. de Pree, lawyers,
      
      applicant,
      v
      European 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, 
      
      defendant,
      APPLICATION for annulment, to the extent to which it concerns the applicant, of 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) and, in the alternative, for
         annulment or reduction of the amount of the fine imposed on the applicant, 
      
      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
      1        The applicant, Koninklijke Grolsch NV, is a company whose business is to produce beer, which it markets under its own brand.
      
      2        The 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.
      
      3        The 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. 
      
      4        The 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
      5        By 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).
      
      6        Following 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).
      
      7        The 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 ...’
      
      8        Article 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.’
      
      9        Under Article 3(1) of the investigation decision:
      
      ‘This decision is addressed to:
      Koninklijke Grolsch NV
      Brouwerijstraat 1
      7523 XC Enschede
      Nederland
      and the undertakings directly or indirectly controlled by it, including:
      Grolsche Bierbrouwerij Nederland BV
      Brouwerijstraat 1
      7523 XC Enschede
      Nederland.’
      10      According 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.
      
      11      In addition, the Commission notified ‘Grolsch’ of several requests for information.
      
      12      On 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.
      
      13      On 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
      14      Article 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.
      
      15      The 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). 
      
      16      According 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). 
      
      17      Thus, 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). 
      
      18      Secondly, 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). 
      
      19      Lastly, 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). 
      
      20      The 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).
      
      21      Furthermore, 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).
      
      22      The operative part of the contested decision is worded as follows: 
      
      ‘Article 1 
      The 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 NV
      Heineken: Heineken NV and Heineken Nederland BV
      Grolsch: Koninklijke Grolsch NV
      Bavaria: Bavaria NV
      Article 2 
      The 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 3
      For the infringements referred to in Article 1, the following fines are imposed:
      a)       Heineken NV and Heineken Nederland BV, jointly and severally: EUR 219 275 000;
      b)      Koninklijke Grolsch NV: EUR 31 658 000;
      c)      Bavaria NV: EUR 22 850 000.
      ...
      Article 4
      This decision is addressed to
      InBev NV, Brouwerijplein 1, B 3000 Louvain, Belgium
      InBev Nederland NV, Ceresstraat 1, 4811 CA Breda, Netherlands
      Heineken NV, Vijzelstraat 72, 1017 HL Amsterdam, Netherlands
      Heineken Nederland BV, Burgemeester Smeetsweg 1, 2382 PH Zoeterwoude, Netherlands
      Koninklijke Grolsch NV, Brouwerslaan 1, 7548 XA Enschede, Netherlands
      Bavaria NV, De Slater 1, 5737 RV Lieshout, Netherlands.
      ...’
       Procedure and forms of order sought
      23      By application lodged at the Registry of the General Court on 3 July 2007, the applicant brought the present action.
      
      24      By 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.
      
      25      By 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.
      
      26      The parties presented oral argument and replied to the questions put by the Court at the hearing on 24 March 2010.
      
      27      Since 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.
      
      28      The 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. 
      29      The Commission contends that the Court should: 
      
      –        dismiss the application;
      –        order the applicant to pay the costs.
       Law
      30      In 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.
      
      31      The 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
      32      The 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
      33      The 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. 
      
      34      Since 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.
      
      35      The 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. 
      
      36      In 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
      37      No 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.
      
      38      Although 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.
      
      39      The 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. 
      
      40      In 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).
      
      41      The present plea in law is therefore admissible.
      
       The merits of the plea 
      –       Arguments of the parties
      42      The 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.
      
      43      Furthermore, the Commission could not be unaware of the existence of that subsidiary, since it was also an addressee of the
         investigation decision.
      
      44      The 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.
      
      45      The 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
      46      In 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).’
      47      The 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. 
      
      48      Furthermore, 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.
      
      49      However, 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.
         
      
      50      In 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)’.
      
      51      Lastly, 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’.
      
      52      Admittedly, 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.
      
      53      Similarly, 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.
      
      54      According 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).
      
      55      There 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).
      
      56      First, 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.
      
      57      The 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).
      
      58      Second, the abovementioned handwritten notes by Mr J. T., as reproduced in recital 193 to the contested decision, are as follows:
      
      ‘–      sales ‘98
      –        beer price →
      –        pin-partition crates                             actions/cat II
      –        crates                                    bottom
                                                                  cask
                                                                  NMA’. 
      59      In 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). 
      
      60      Third, 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).
      
      61      The 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.
         
      
      62      First 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’. 
      
      63      Second, 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.
      
      64      Furthermore, 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).
      
      65      However, 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).
      
      66      In 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.
      
      67      In 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.
      
      68      Third, 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.
      
      69      On 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.
      
      70      In 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.
      
      71      It 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’.
      
      72      Accordingly, 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
      73      The 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.
      
      74      In 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.
      
      75      During 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
      76      According 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). 
      
      77      Where, 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.
         
      
      78      Thus, 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). 
      
      79      By 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.
      
      80      It 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).
      
      81      In 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).
      
      82      In 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). 
      
      83      In 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). 
      
      84      In 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. 
      
      85      By 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. 
      
      86      After 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.
      
      87      The 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.’
      
      88      The 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.
      
      89      It 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.
      
      90      It 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.
      
      91      The 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.
      
      92      The 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.
      
      93      It 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.
      
      94      In 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
      95      Under 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. 
      
      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.
      
               Vadapalas 
            
            
               Dittrich 
            
            
               Truchot 
            
         Delivered in open court in Luxembourg on 15 September 2011 .
      [Signatures]
      * Language of the case: Dutch.