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Focusing now on the relationship between the notion of undertaking and the
principle of parent company liability, the methodology of the principle may give rise
to another possibility of EU private litigation. The language that the CJEU described
in the process of the attribution of subsidiaries competition infringement to their parent
company has been ambiguous, hence not entirely precise. There are two doctrinal
possibilities for the attribution; The first option is to be understood that the competition
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infringement is committed by an economic entity through subsidiaries. Therefore,
the parent company constituting a part of the same economic entity is to be considered
as a perpetrator itself. The second option considers that it is still subsidiaries who commit
an infringement, and the liability is imputed to their parent company. To illustrate,
in the case Siemens Österreich , the ECJ determined that it is the economic entity who
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infringes the competition rules; hence the parent company, who is not a perpetrator
itself, may be penalised for its subsidiary misconducts, if they form part of the same
economic entity, constituting the undertaking. However, the ECJ elaborated later on
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that subsidiaries illegal conduct is imputed to its parent company; therefore the parent
company’s liability derives from its subsidiary, allowing the Commission to hold them
jointly and severally liable. Similar methodology can also be observed in other
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caselaws.
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With this ambivalent approach in mind, tethering the principle of parental liability
to the notion of a single economic entity could have additional effects on the EU
competition litigation. The reason is that owning to the functional approach of the notion
of undertaking in EU Competition Law, the undertaking does not merely consist of an
infringing subsidiary and its parent company, but other legal persons who have not
(2019). Neue Zeitschrift für Kartellrecht (NZKart) 10/2019. Available at SSRN: https://ssrn.com/abstract=3455993
or http://dx.doi.org/10.2139/ssrn.3455993
50 Carsten Koenig, An economic analysis, supra (n.18) p.286
51 Joined Cases C231/11 P to C233/11 P Siemens AG Österreich supra (n.3)
52 Ibid, para 44-45
53 Ibid, para 46-48
54 Case C-97/08 P Akzo Nobel, supra (n.19), para 58-59; Case C-440/11 P European Commission v
Stichting Administratiekantoor Portielje and Gosselin Group NV ECLI:EU:C:2013:514, para 36-40 and case law cited
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