Guilty of a Fault that One Has Not Committed: The Limits of the Group-Based Sanction Policy Carried Out by the Commission and the European Courts In EU-Antitrust Law

Abstract

The economic entity doctrine allows the Commission to fine a parent company if its subsidiary has infringed the competition rules. In such cases, the Commission holds the subsidiary and the parent jointly and severally liable. The EU Courts have acknowledged this sanctioning concept as based on an interpretation of the notion of “undertaking”. Yet the economic entity doctrine still faces criticism. It is argued that being a parent can hardly suffice to establish liability for the infringement of the subsidiary. Also, the rule stating that a 100% shareholder is presumed to form an economic entity with its subsidiary is seen to conflict with the in dubio pro reo principle. As far as joint and several liability is concerned, practical problems arise with respect to recourse litigation between the corporate entities. It is argued in this article that irrespective of the interpretation of the notion of undertaking in terms of the competition rules, it is necessary to respect the legal personality of group companies and essential legal principles of sanctioning: namely the principle of personal responsibility.

Keywords: antitrust, economic entity, fine, parent company

JEL Classification: K21