Follow-up to Skanska – The 'Implementation' by National Courts So Far

Abstract

In its Skanska ruling, the European Court of Justice spelled out the liability of group companies for cartel damages. German courts have now handed down first rulings in respective cases. They reject a subsidiary’s or a sister company’s capability of being sued for cartel damages in civil court and thus, in principle their civil liability for infringements by other members of the same economic unit. Contrary to this assessment, Spanish courts of appeal did find subsidiaries to be liable for cartel damages in similar constellations. These opposite views are rooted in the contradictory premises of national liability laws on the one hand and European competition law on the other. However, only the synchronism of civil liability with the undertaking’s responsibility for fines fits in well reasonably with the framework of European competition law.

Note: The article is a revised and updated version of the German original that was published in the October issue of Neue Zeitschrift für Kartellrecht (NZKart, No. 10/2019, p. 535-538) under the title “Follow-up zu Skanksa – Bisherige ‘Umsetzung’ durch nationale Zivilgerichte”.

Keywords: ECJ; Skanska; Cartel Damages; Germany; Spain; EU Law; Competition Law; Economic Unit; Undertaking; Private Enforcement; Art. 101 TFEU; Group Liability; Sister Liability

JEL Classification: K42; K33; K21