The Civil Liability of the Economic Unit

Abstract

The article discusses competition law "group liability" in the light of the recent ECJ decision in the Sumal case. With this ruling, the ECJ confirms the long-held view of the first author on economic unit liability and also adopts the thesis of both authors on their understanding of the economic unit as market-related in its delineation and determination. The article first analyses the judgment and discusses the consequences of the liability of all legal entities, which make up the economic unit (its constituent parts), especially with respect to changes among those legal entities. In a second step it addresses the implications of the judgment. It sheds light on follow-up problems in administrative proceedings and claims for competition law damages in civil courts as well as on the law on antitrust fines. The article concludes with a classification of the relationship between European Union law and national law, a question that remains unresolved in Sumal.

Note: This article is a translated, revised and updated version of Kersting/Otto, Die Haftung der wirtschaftlichen Einheit, first published in [2021] Neue Zeitschrift für Kartellrecht (NZKart) 651-659 and [2022] NZKart 14-19. NZKart is published by C.H.Beck, München, ISSN 2195-2833.

Keywords: group liability, economic unit, private enforcement, public enforcement, cartel damage claims, competition law, Sumal

JEL Classification: K21, K29