EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

of the undertaking may expand unexpectedly. The limitation expressed by the Court in Sumal , when it recalled that for there to be participation in the same undertaking there must be participation in the same economic activity, often does not help, but on the contrary only introduces new ambiguities into the system (for example, it is not clear how broadly these activities are to be conceived – it certainly cannot be limited to participating in the same relevant market). Let us also ask whether, in this case, the individual members of the undertaking are to bear the consequences of their liability themselves or whether, and if so to what extent, they are to take recourse against other members. Unfortunately, the idea that collective liability exists based merely on participating in an undertaking does not imply any rules for recourse between those jointly and severally liable. One could perhaps consider an analogous application of the rules on societas . The definition of undertaking on which the Court based its decision is similar to that of societas in that it emphasises the uniform pursuit of a specific economic aim. However, this is insufficient for the analogy to be applied. The second key feature of a societas is the (voluntary) association of persons to pursue that aim. This is a very different process from the way in which groups of companies are formed and gradually grow: here, the original will to pursue the aim is present only in the central company of the future group, and from there it is projected onto the other gradually incorporated members in the form of a definition of the company’s purpose. At the end of this process, all the other companies involved do indeed want to achieve, together, a common aim just as in a societas , but only because their parent company has given them the impetus to do so when they were founded and has therefore founded them for this very purpose. This different way of forming an organisation makes the analogy with a societas impossible in my opinion, since the rules governing its internal relations (which are what we are concerned with here) are a consequence of precisely that voluntary association of societas members that is absent here, not of the sharing of a common aim. So perhaps we can finally return to the idea presented above and examine, at least for this purpose, the extent to which individuals are involved in the malpractice of the undertaking? For several reasons, this is not quite so simple. In the first place, we should recall that we based this conclusion above on a reinterpretation of the primary competition norms, in which we “pierced the veil” of the undertaking and imputed directly to its “members” the obligation to behave in such a way as not to create a conflict with these norms at the level of the undertaking. This then allowed us to examine individually, for each “member”, whether it had breached the obligation thus defined. If, however, we hold that the primary duty is indeed the true duty of the undertaking itself, then there are no duties at the level of its mere members which could be breached and thus serve as a criterion for the internal division of responsibility. Thus, as the Court says: the

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