EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

law, surprising as it may have seemed from a theoretical perspective. The inherent problematic nature of this solution only began to become apparent when the need to integrate it into other areas of law, particularly corporate law, arose.

3. Private law consequences of competition law infringements

3.1 Attribution of fines As can be seen from the foregoing, the European Commission does not overly concern itself with the issue of the rapport of individual legal entities to offending conduct subject to sanctions, since the two-step reasoning described above does not even allow it to do so: in considering whether there has been a breach of a primary obligation, it examines only whether the undertaking in question has breached the obligation and not whether the obligation has been breached by any particular legal entity. It is only in the second step that the legal entities come into play and the question of their belonging to the undertaking in question is addressed. What this belonging means legally is entirely unclear: Is it a liability based on control of the conduct of the economic unit in question (similar, for example, to vicarious liability)? Or is it based on participation in the benefits generated by the economic unit (similar to liability for damage caused by a thing)? The prevailing doctrine does not offer an answer, instead confining itself to stating that all entities belonging to the undertaking are jointly and severally liable for the sanction. But this only addresses the external relationship and not the internal relationship between them: how are they to settle with each other? This is an important question in terms of other areas of law, in particular corporate law. Even though they are parts of a single economic unit, they are still legally separate entities which also have their own spheres of interest and their corporate bodies are required by corporate law to guard these interests even against other members of the same economic unit. In other words, if a company from the group is forced to pay a fine that has been imposed on the group (or part of the fine), its corporate directors must ask themselves, as a matter of law, whether the company has paid that fine to the extent of its own liability or whether it has in fact paid it on behalf of another group company from which it would have to claim it in such a case. While this question remains rather theoretical in the case of an economically sound wholly-owned subsidiary, it may become more acute in a number of other situations: if there are minority shareholders, if the company goes bankrupt and the interests of creditors have to be defended, or if, in the intervening period since the offence was committed, part of the group has been separated into the hands of another economic owner (for the purposes of imputing a fine, it is the companies that were part of the undertaking at the time

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