Claiming Cartel Damages against the Economic Unit: One for All and All for One?

Abstract

The article argues that all legal entities forming part of an "undertaking" in the sense of Artt. 101, 102 TFEU which violated competition law are equally liable for damages caused by the infringement. In that, it explains that neither the principle of separation under corporate law nor individual responsibility are in any way affected by this, since the synchronism of action and sanction (actio and reactio) is just as much provided as it is guaranteed under Art. 101(1) TFEU. Hence, in light of the economic unity doctrine it seems hardly contestable that all parts of an undertaking are equally liable for cartel damages and can therefore be sued before the competent national courts, regardless of their hierarchical standing within the unit's corporate structure.

Despite frequent criticism, a broad group of potential debtors in no way expands the scope of the cartel victims' rights, nor does it lead to over-compensation, since the amount of the debt exclusively depends on the economic harm inflicted through the infringement. What actually is at issue, rather is a simplification of private enforcement of compensation rights which de lege lata already exist anyway. However, plaintiffs who cannot prove in court that they actually suffered damages will still fail with their claims, regardless of whether the action is brought against the parent company, its sister or any of their subsidiaries.

Note: This paper is an English version of the German original that published in the May issue of Neue Zeitschrift für Kartellrecht (NZKart, No. 5/2020) under the title “Die wirtschaftliche Einheit als Schuldner im Zivilprozess: Eine für alle und alle für eine?”.

Keywords: ECJ; Sumal; 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