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วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

parental liability.
11
In Höfner, the ECJ held that “the concept of an undertaking encompasses every
entity engaged in an economic activity, regardless of the legal status of the entity and

the way in which it is financed and, secondly, that employment procurement is an
economic activity.” Moreover, an undertaking is not limited to only one entity, since
12
in case Hydrotherm Gerätebau GmbH, the ECJ determined that the notion of undertaking

“must be understood as designating an economic unit …. even if in law that economic
unit consists of several persons, natural or legal.” Therefore, the entities constituting
13
undertaking can be a natural-person individual sole trader, a legal person, principal-
agent and parent company-subsidiary. The economic approach of the notion of
14
undertakings, so-called the single economic unit doctrine, causes a certain amount of

consequences. The most critical consequence to our topic is the attribution of liability
and responsibility. In several cases, especially cartels, the CJEU has applied the single
economic doctrine in order to attribute the liability of a subsidiary to its parent company.
15
In the early case, the CJEU had a chance to establish the principle of parental
liability can be observed in case ICI. The ECJ determined that when a subsidiary
16
is not independent of its parent company, the latter’s conduct might be attributed to the
former. The ECJ set out specific criteria to determine whether anticompetitive conducts
17
of subsidiaries can be attributed to the parent company. Regardless of the separation of
legal personality, a parent company is liable for its subsidiaries’ conduct when, firstly,

11 Carsten Koenig, Comparing Parent Company Liability in EU and US Competition Law (2018) World
Competition 41, no. 1, p. 73
12 Case C-41/90, Höfner and Elser v Macrotron GmbH ECLI:EU:C:1991:161, para. 21
13 Case 170/83, Hydrotherm Gerätebau GmbH v Compact de Dott Ing Mario Adredi & CSAS
ECLI:EU:C:1984:271, para. 11
14 Alison Jones, Brenda Sufrin, Niamh Dunne, EU Competition Law: Text, Cases, and Materials (7th edn,
Oxford University Press 2019) p.151
15 Ibid, p.152-155; see also, Frank Wijckmans, André Bouquet, Horizontal Agreements and Cartels in
EU Competition Law (Oxford University Press, 2015), p.240-241, Richard Burnley, Group Liability for Antitrust
Infringements: Responsibility and Accountability (2010) World Competition 33, no. 4: p.596-597
16 Case 48/69 Imperial Chemical Industries (ICI), supra (n.10)
17 Ibid, para 132-133, 135

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