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วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

there is “a rebuttable presumption that the parent company does in fact exercise a
decisive influence over the conduct of its subsidiary.”
24
the ECJ in Akzo laid down a bold clarification that establishing only the fact that

its parent company wholly owns a subsidiary sufficiently constitutes a rebuttable
presumption of the actual exercise of decisive influence. Moreover, it can be observed
that the ECJ modified the concept of the attribution of liability to a parent company for

its subsidiaries’ antitrust infringement, from the interactions between a parent company
and subsidiaries to the existence of a single economic unit. The effect of the case has
25
been massive since the presumption has been cited by subsequent case law concerning
the attribution of liability in a single economic entity. Regarding the presumption, several
scholars argue that the presumption is in fact, irrebuttable.
26
It should be noted that there are several cases that the CJEU dismisses
the presumption. However, the ground that the CJEU based its reasoning on is not

the fact that parent companies actually prove the autonomy of its subsidiary. The CJEU
rejects the presumption in those cases by referring to the procedural ground based on
the reason that the Commission fails to state reasons for its decision since the Commission

relied solely on the presumption without stating the reasons why the evidence submitted
by a parent company was insufficient. 27

As for the private enforcement in EU Competition Law, the recent introduction
of the Damages Directive ensures the right to claim full compensation for the harm

committed by undertaking. However, the preamble of the Damages Directive indicates
28
that national rules relating to imputability and culpability can be maintained,

24 Ibid, para 60
25 Andriani Kalintiri, Revisiting Parental Liability in EU Competition Law (2018) ELR 43(2), 145-166, 151
26 See for example, Carsten Koenig, An economic analysis, supra (n.18); J. Joshua, Y. Botteman and L.
Atlee, You Can’t Beat the Percentage” – The Parental Liability Presumption in EU Cartel Enforcement (2012)
European Antitrust Review 2012; John Temple Lang, How Can the Problem of the Liability of a Parent Company
for Price Fixing by a Wholly-owned Subsidiary Be Resolved?, (2014) 37 FORDHAM INT’L L.J. 1481
27 John Temple Lang, How Can the Problem of the Liability of a Parent Company for Price Fixing
By a Wholly-Owned Subsidiary Be Resolved? Ibid, p.1499-1502; Florence Thépot, The Interaction Between
Competition Law and Corporate Governance, supra (n.8), p.53
28 Article 1 of the Damages Directive 2014/104/EU, supra (n.6)

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