EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

members are liable by virtue of their membership, not by virtue of their wrongful conduct. Although the Court draws this conclusion in relation to third parties, it does so on the basis of the only rule available to us. There are no specific legal rules for the internal relations in undertakings under European or national law, and it is therefore difficult to see where else we should look for a different conclusion. But even if we get past this problem, a practical question arises. As I have already mentioned, for as long as public enforcement remained the quasi-exclusive method of competition law enforcement in Europe, the questions examined here were asked with much less frequency and urgency: essentially only in cases where, in the intervening period between the commission of an offence and the imposition of a sanction, the group was reconfigured in such a way that the ‘accomplices’ originally co-existing in a single undertaking split into multiple undertakings, leading to a dispute as to which of the new undertakings should ultimately bear the sanction. Even if such a dispute had already arisen, it was a dispute between the few entities that were parties to the original Commission proceedings. If private enforcement plays out in the way that the Court’s decision in Sumal opened the door to, we are looking at a very different picture. Different plaintiffs in different countries will turn to different sets of companies within the same undertaking and seek compensation for ‘their’ damage. It is quite common for an undertaking to consist of several dozen companies. Is it conceivable that a kind of ‘final settlement proceedings’ could be organised and conducted, in which the damages paid by the individual companies belonging to the undertaking at the time of the tort would be redistributed according to the degree of fault of each of the members? It is my view that such a thing is entirely unrealistic, not only because of the potential number of parties to such proceedings, but also because of the practical difficulty of examining and measuring the degree of participation in wrongful conduct. Therefore, I am afraid that in the current state of (a lack of ) rules, the consequences of liability will ultimately be borne by those that primarily fall victim to the sanctions for that liability, regardless of whether and to what extent they participated in the illegal behaviour or even in the functioning of the undertaking. I do not think that this state of affairs is satisfactory. 4. Conclusion In two recent examples, we have seen how what appeared for many years to be a seamless application of the doctrine of the economic concept of undertaking presented unexpected problems when it came to incorporating the doctrine into other areas of law. As long as the “two-step reasoning” was used only to justify parent companies being fined instead of those directly involved in the wrongdoing, no particular problems were apparent. However, when we tried to apply the outcomes of this reasoning to infer other legal consequences, such as

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