Abstract
In competition law, it has been established since long that a parent company and a subsidiary under certain conditions may be regarded as a ‘single economic unit’ – an ‘undertaking’ – with the consequence that the parent company can be held liable if the subsidiary has incurred criminal liability for competition law infringements. Although this parental liability has been much criticized, with the Skanska decision, the liability of the parent company for the acts and omissions of the subsidiary (‘vicarious liability’) has been widened. The question of parental liability for competition law infringements is part of a wider question of the possible liability of companies for acts and omissions of other companies with which they are somehow linked. This article firstly describes the development of the concept of the undertaking in the area of competition law and examines the implications of the Skanska decision for groups of companies with regard to competition law infringements (section 2). Secondly, it asks whether a similar pattern of development can be found in other areas of the law and whether the solutions adopted in competition law can be transferred to these other areas (section 3) and thirdly, whether the concept of an undertaking could be applicable not only to companies linked by ownership but also to companies linked by contract (section 4).
Highlights
In competition law, it has been established since long that a parent company and a subsidiary may be regarded under certain conditions as a “single economic unit” – an “undertaking” – with the consequence that the parent company can be held liable if the subsidiary has incurred administrative liability for competition law infringements
If the supplier is not regarded as an independent supplier in the market for the purpose of art 101(1), it seems reasonable to ask if the corollary of this lack of independence from the contractor could be vicarious liability of the lead firm for competition law infringements committed by the supplier
On the basis of the above, it can be concluded that parent companies may incur vicarious liability for competition law infringements caused by the acts and omissions of their subsidiaries, if the parent company and subsidiary must be regarded as an economic unit
Summary
It has been established since long that a parent company and a subsidiary may be regarded under certain conditions as a “single economic unit” – an “undertaking” – with the consequence that the parent company can be held liable if the subsidiary has incurred administrative liability (through imposition of fines) for competition law infringements. This parental liability has been much criticised, it must be assumed that with the Skanska decision, the liability of the parent company for the acts and omissions of the subsidiary (“vicarious liability”) has been widened. It asks whether a similar pattern of development can be found in other areas of the law and whether the solutions adopted in competition law can be transferred to these other areas (section 3) and thirdly, whether the concept of an undertaking could be applicable to companies linked by ownership and to companies linked by contract (section 4)
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