EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

The basis of corporate law, and in particular the law of capital corporations, is, however, the thesis that a company is not owned by its shareholders. Its legal autonomy is not a mere formality; it is an expression of the fact that it has its own sphere of interest, which its corporate bodies are obliged to defend, even against its own shareholders. This fundamental rule is also coupled with the ownership autonomy of the company: the company may use its property only to promote its own interests, not those of its members, and is liable only for its own debts. The shareholders are entitled only to profits, distributed in accordance with strict rules for the distribution of own resources. This concept is crucial to maintaining the confidence of the company’s current and potential creditors and thus to enabling capital corporations to participate in legal and economic life in general. It is in direct contradiction with this concept to use the company’s assets, without any limitation, to compensate damage caused to someone by a breach of competition law rules by its shareholder, albeit the sole one. The company could not do so voluntarily , nor could it be validly compelled to do so by that shareholder. Even a contract in which it bound itself to a third party to do such a thing would be declared void without hesitation. These limitations result from norms of the same formal legal force as competition norms, and I dare say they are more serious in terms of their content. It is futile to try to eschew this contradiction by arguing that it is not the damage caused by the shareholder that is at issue, but that caused by the corporation itself, because it was part of the undertaking that caused the damage. The most that can be inferred is that the damage was caused by that undertaking, if we grant it legal personality, but, as indicated above, that cannot lead its members to become liable without the existence of a series of rules governing the functioning of such an entity. But even worse, it is necessary to recall that in other competition law contexts, the concept of undertaking is defined more broadly than just groups of wholly-owned subsidiaries. In particular, in addressing the question of which agreements between which entities are subject to the prohibition on anticompetitive agreements, the concept has been used, for example, to exclude agency agreements when it has been held that both the agent and the principal are part of a single undertaking ( Bundeskartellamt v Volkswagen and VAG Leasing , 1993, pp. I-3477). The same applies to agreements with employees ( Suiker Unie and others v Commission , 1973, p. 1663). Should we therefore conclude that such an agent or employee will also be subject to this collective liability regime by virtue of his or her participation in the undertaking of the principal? Furthermore, in the area of merger control in particular, there are frequent cases of joint control of a joint venture which result in the joint venture and the entities jointly controlling it being part of the same undertaking. If, as is common, each of the controlling entities is also itself part of a group, the collective liability

476