Influence brings accountability: Dutch Supreme Court is advised on parental liability in the Flour Cartel

Background: the flour-cartel continues

On 12 September 2025, Procurator-General (P-G) Drijber issued his Opinion (link) in Bencis Capital Partners v Dossche Mills (ECLI:NL:PHR:2025:999), advising the Dutch Supreme Court to dismiss a private-equity firm’s attempt to recover a cartel fine from its former portfolio company.

The case originates from the long-running flour cartel, in which the Dutch Competition Authority (ACM) imposed fines on several producers for coordinating prices and market conduct. Meneba Meel B.V. was fined €9 million in 2010. Four years later, following complaints from its competitors that Meneba got off lightly because its parent company was not held accountable, the ACM also fined Bencis (€1.27 million), Meneba’s former parent company, finding that Bencis had exercised “decisive influence” and thus formed part of the same economic entity during the infringement period.

Bencis challenged the outcome, arguing that it had no knowledge of the cartel and should be able to recover the fine from Meneba. It relied on Dutch civil-law grounds such as tort, unjust enrichment, and regres (internal contribution). It also argued that fining both companies violated the principle that no one should be punished twice for the same conduct (ne bis in idem). Bencis’ arguments were rejected by the Rotterdam District Court and, on appeal, were also rejected by The Hague Court of Appeal, which on 6 August 2024 upheld the lower-court judgments (ECLI:NL:GHDHA:2024:1412). The Court of Appeal held, in essence, that a parent company with policy-determining authority during the infringement cannot shift a cartel fine to its (former) subsidiary.

P-G Drijber: one undertaking, one responsibility

In his Opinion to the Supreme Court, P-G Drijber takes the position that a cartel infringement is committed by the undertaking, meaning all entities forming part of a single economic unit. Once a parent and subsidiary are deemed to have acted together, neither can later claim to be the “victim” of the other. Allowing such internal claims would undermine the deterrent effect of competition fines by letting undertakings shift penalties within the group.

Drijber’s Opinion aligns with the European Court of Justice’s approach in Skanska (2019), confirming that the concept of an “undertaking” applies consistently across administrative and civil enforcement. What is new in this case, is that the parent company is a private equity firm rather than a regular (holding) company. While the Supreme Court has yet to rule, its decisions typically follow the reasoning of the Procurator-General. The Opinion therefore offers an early indication of how Dutch courts might approach parental liability of private equity firms (with a controlling say) in antitrust enforcement.

Implications for business

If followed by the Dutch Supreme Court, the Opinion will have significant implications for private-equity funds and other investors.

• Even when financial investors are not involved in daily operations, they can still face exposure if, in practice, they exercise decisive influence over their portfolio companies.
• Competition law compliance must extend to the portfolio level, with training, reporting, and oversight mechanisms integrated into investment governance.
• Contractual indemnities offer only limited comfort: Internal agreements cannot override public-law responsibility for cartel conduct.

The Opinion underlines that competition compliance is not only a matter for operating companies but also for their investors and parent entities that hold control as a financial investment. In short: influence brings accountability, regardless of the reason for exercising control.

What happens next

The case is now before the Supreme Court. No ruling date has been set; in practice, judgments often follow within several months of a P-G opinion. We will monitor developments and report on the outcome and practical implications for investors and portfolio governance.

This article was written with assistance from Juliette Tiel Groenestege.

If you need more information or further guidance in this area, please contact Pauline Kuipers.

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