EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

this judgment, it is for the economic unit which constitutes the undertaking that has committed the infringement to answer for it. para 58). Such a view reduces the question of a particular company’s liability in an undertaking to one of complete automatism: it is the company’s very membership of the undertaking that makes it liable - its personal involvement in the tort or the benefit it did or did not derive from it is irrelevant. Bringing the doctrine to this conclusion is more revolutionary than it might at first appear. The legal systems of all Member States insist on the idea that a group of companies does not have legal personality; only the individual companies of which it is composed have legal personality. This is true even in those jurisdictions in which a group of companies (or some kind of group) is a positive legal concept and shows some rudimentary indications of personality, as in the case of German contractual Konzerns . On the other hand, it must be admitted that, from a theoretical point of view, it is not unthinkable for a group to be accorded subjectivity: the very subjectivity of its members is not an obstacle to this (after all, a company as a legal person is also composed of members who are themselves legal or natural persons), and the fact that the group itself has neither the capacity to own nor the organs by which it can act is not insurmountable either. For example, in many countries a partnership is no different in this respect. It would, however, be necessary to construct rules that not only transfer the obligations of such an entity onto its members, but also ensure that those members participate in forming its will and in its benefits (on a theoretical level, I dealt in more detail with the possibility of constructing the subjectivity of a group of companies in my earlier work Legal Subjectivity, see Pelikán, 2012). It is, however, worth asking whether competition law is really so exceptional as to merit this solution alone – should such subjectivity not then be inferred in other cases where the protection of the public interest and the interests of the injured party would require it, such as environmental or consumer law? And would such an extension of group subjectivity not eventually lead rather quickly to the disappearance of the basic advantage that groups of companies represent in the form of a possible limitation of business risks? But without going into such far-reaching speculation, let us ask ourselves to what extent the Court’s personification of undertaking is compatible with other parts of the law and, ultimately, with other branches of the doctrine of undertaking. It can be rightly argued that there may well be a conflict with corporate law in particular, including the doctrine of preservation of registered capital, which is part of European law. The fact that a company is part of an undertaking certainly does not mean that it is able to influence its conduct. It may well be that it ends up being liable for something that it did not cause, did not benefit from, could not have prevented and may not even have known about.

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