EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

for the fine imposed: this is not a derivative liability for conduct of the whole in which the subject participates, but the subject will bear its own liability for the way in which its conduct, within the autonomy if its will, has caused or contributed to the violation of the primary norm. This question, particularly as regards the extent to which, for example, controlling persons will be required to have actively participated in defective conduct or whether knowledge of the controlled person’s conduct or lack of control will suffice, can then really be left to the legal rules governing that person to answer. (In this context I must note that I find it regrettable that Regulation 1/2003 is explicitly addressed to undertakings and not to legal entities, even though these are procedural rules. I am convinced that this is a mistake, even though it has positive pragmatic consequences, since it makes it possible to impose and enforce fines even against persons who, in the light of the principles just described, may not ultimately be liable for them. On the highly problematic question of the compatibility between this consequence and fundamental rights, see e.g., Thomas, 2012, p. 11) However, we will see in the next chapter that this understanding and this conclusion may not be accepted in future jurisprudential developments. In fact, another line of case law develops a completely different understanding founded in genuine collective liability for the conduct of undertakings on the market. 3.2 Imputation of private liability The most recent jurisprudential contribution to the debate on the concept of undertaking was provided by the Court of Justice in Sumal (2019). Here, it was the new context of private liability that illuminated a situation that had always been inherent in the problem but remained hidden: the European Commission never conducted its sanction proceedings with all members of a given undertaking but, pragmatically, usually chose only the parent companies of the groups involved. Even if these companies were not directly involved in the conduct, it was clear that they had at least benefited from it, and it did not appear problematic from a fairness point of view that they were also being sanctioned for the outcome. By contrast, the Sumal case no longer concerned the Commission decision directly, but concerned a private enforcement action, and the plaintiffs, using the doctrine of undertaking, chose to sue a subsidiary not because it had participated in the conduct, but because it was based in their country and, therefore, could establish the jurisdiction of the local courts. For the first time, then, the question being asked was whether the subsidiary was jointly liable for damage which it had not itself caused but which had been caused by an infringement of competition law by its parent company, which was part of the same undertaking. The Grand Chamber’s decision is based on a very different concept from the one I presented in the previous section. Here, the Court found:

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