Civil Law Liability of Parent Companies for Infringements of EU Competition Law by Their Subsidiaries

Abstract

The article investigates the impact of the use of the concept ‘undertaking’ in the EU Antitrust Damages Directive on the civil law liability of parent companies for infringements of their subsidiaries and more general on other natural and legal persons forming part of the same undertaking. The research shows that the Directive and other rules of EU competition law leave room for an interpretation that allows Member States to maintain additional criteria for liability such as imputability, adequacy or culpability to prevent the transposition of the competition law theory of parent company liability into civil law. The way in which Member States have dealt with the issue of the civil law liability of parent companies when transposing the Antitrust Damages Directive differs. Some Member States explicitly introduced a system of parent company liability, others remain intentionally or unintentionally vague about the question. Ultimately, it will be up to the Court of Justice do decide whether the Antitrust damages directive read together with other rules of EU competition law requires Member States to transpose the competition law theory of parent company liability into civil law. To prevent parent companies from using subsidiaries to limit their competition law liability and to encourage them to ensure competition law compliance by their subsidiaries, the transposition into civil law of a slightly amended competition law theory of parent company liability appears desirable.