Rethinking the Parental liability for antirust Infringement

The article deals with the many inconsistencies within the case law, with regards to the parent’s liability for the antitrust infringement committed by the subsidiary. The EU courts have stated that the antitrust infringements should be attributed personally to the undertaking and, at the same time, to the legal persons on whom fines may be imposed. They have established that the liability of the parent company derives from the fact that it forms a single undertaking and, at the same time, that this liability derives from the exercise of decisive influence of the parent over the subsidiary’s conduct. They have held that the parent and the subsidiary can be considered jointly and severally liable for the payment of a fine, but no EU rule or agreements between the companies provide such responsibility. EU judges have also stated that fundamental rights do not apply to those legal persons which form the undertaking but, at the same time, they verified if the presumption of innocence of the parent company could have been violated by its parental liability. Again, courts have found that the liability of the parent company derives from the subsidiary’s conduct, but also that the annulment of the fine to the latter does not necessarily reflect on the fine to be paid by the first. Finally, the case law is also uncertain with regards to the subjective element of the infringement, which impinges on the application of the Directive in the matter of actions for damages for the violation of competition law. The article concludes that the matter should be seriously reconsidered by the EU courts and suggests a possible solution