CYIL vol. 11 (2020)

CYIL 11 (2020) ARTIFICIAL INTELLIGENCE AND COMPETITION LAW… The principal managers do not even need to be aware of the employee’s conduct. 34 It is not even necessary to identify a particular employee responsible. 35 The same conclusion applies in the third scenario, where the undertaking consists of a single legal person, most typically a company. Again, that company would bear responsibility for the conduct of all the natural persons associated with it, including its employees. 36 The most complex (but most common) scenario applies to situations when an undertaking is composed of more legal entities, e.g. a parent company and its subsidiary; as this complexity is not necessary for the purposes of this article, it suffices to say that a parenl company may, in principle, be held liable for the conduct of its subsidiary. 37 The particular conduct may not be conducted by “internal” personnel within the undertaking in question but may be “outsourced” to another undertaking. The relationship between an undertaking and its employees is not comparable to the relationship between an undertaking and independent service providers, which supply services to it, and the abovementioned rules on employees therefore cannot apply. 38 The CJ EU nonetheless found that under specific circumstances, the undertaking may be held liable for the conduct of an independent service provider. This may be the case if the service provider was not acting independently, but was in fact under the direction and control of the undertaking in question, and its notional independence was disguising an employment relationship. 39 Even if the service provider was indeed independent, the undertaking using it may still be found liable if it was aware that its competitors are using the service provider for their coordination, and decided to do the same, i.e. “ if the undertaking was aware of the anti-competitive objectives pursued by its competitors and the service provider and intended to contribute to them by its own conduct ”; 40 similarly, the undertaking’s liability may arise when it could have reasonably foreseen that the service provider would share its commercial information with its competitors and the undertaking was prepared to accept the risk which that entailed. 41 In such a scenario, the service provider itself may be found in breach of competition law, even if it is not at all active in the relevant market. 42 34 CJ EU judgement of 7 February 2013 C-68/12 Protimonopolný úrad Slovenskej republiky v Slovenská sporiteľňa , ECLI:EU:C:2013:71, par. 25: “ it is not necessary for there to have been action by, or even knowledge on the part of, the partners or principal managers of the undertaking concerned; action by a person who is authorised to act on behalf of the undertaking suffices” . 35 CJ EU judgement of 18 September 2003 C-338/00 Volkswagen v Commission , ECLI:EU:C:2003:473, par. 94-98. 36 WILS, W. ( op. cit. sub 28), p. 111: “ There is no doubt that when an infringement is committed by an undertaking coinciding with a single company, it will be imputed to that legal person. […][W]hether the relevant actions are taken by the highest representatives or organs of the company or by mere employees is of no importance” . 37 See e.g. CJ EU judgment C-97/08 P of 10 September 2009 Akzo Nobel NV and Others v Commission , ECLI:EU:C:2009:536, par. 58: “ the conduct of a subsidiary may be imputed to the parent company in particular where, although having a 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” . 38 CJ EU judgement C-542/14 ( op. cit. sub 32), par. 26.

39 Ibid , par. 27. 40 Ibid , par. 30. 41 Ibid , par. 31. 42 General Court judgment of 8 July 2008 T-99/04 AC-Treuhand AG v Commission , par. 130.

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