EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

of the offence being examined, not the companies comprising it at the time the fine was imposed). This issue arose ( inter alia ) in Siemens e.a. v. Commission (2011). However, the Court of Justice (contrary to the General Court’s opinion) concluded that it was not for the European Commission to decide, but that it was a question for the national judge (see para [58]: “While it follows from Article 23(2) of Regulation No 1/2003 that the Commission is entitled to hold a number of companies jointly and severally liable for payment of a fine, since they formed part of the same undertaking, it is not possible to conclude on the basis of either the wording of that provision or the objective of the joint and several liability mechanism that that power to impose penalties extends, beyond the determination of joint and several liability from an external perspective, to the power to determine the shares to be paid by those held jointly and severally liable from the perspective of their internal relationship.”). Rather problematically, however, it also stated that “neither Regulation No 1/2003 nor EU law in general contain rules for the resolution of such a dispute, which concerns the internal allocation of the debt for the payment of which the companies concerned are held jointly and severally liable” (para [61]). This is a remarkable conclusion: if both the primary obligation and the sanction for its breach have their exclusive source in European law, how could the question of the relationship between the debtors for the payment of this sanction be resolved anywhere else? The law of the Member States does not, of course, contain any rules for dealing with this question. This attempt to dodge the question by referring to national law must therefore be rejected, at least for the time being. The answer to the issue of the individual shares of the fine must be found in the only thing we have at our disposal, namely the concept of undertaking and how to work with it as this is the source of liability of any of the fined persons. Only if we understand grounds on which any individual sanctioned party is liable for the competition offence, may we then search the national law for rules for similar cases of joint and several liability. If we look more closely at the case law in the area of the imputation of fines, we may see a hint of a solution. When the case law justifies that a parent company may be liable even if it has not ‘participated’ in anticompetitive conduct, it states: [I]nfringement of the competition rules by a subsidiary may be imputed to the parent company in particular where, although having 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 ( Areva e.a. v Commission, 2011, para [30] and the prior case law cited therein).

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