Page 122 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

Not least of all, the recent preliminary reference by Audiencia Provincial de
Barcelona in case Sumal is directly concerned with the determination of the liability
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of the innocent subsidiary. In the case, the Spanish Court referred the question to the
ECJ to inquire whether according to the concept of a single economic unit, the antitrust

liability can be attributed from the parent company to its innocent subsidiary.
To determine whether the implication of the case law can pose a practical impact on
EU competition law, it is, therefore, significant to revisit the methodology of the CJEU

and the Commission to attribute subsidiary’s infringement to the parent company.

With regards to the potential effects of the judgment of the case Skanska,
the analysis is required in order to determine whether the methodology of the parental
liability in relation to the single economic entity doctrine can be extended to the liability

of innocent subsidiaries. The obscure approach of the CJEU creates uncertainty on the
extent of the single economic entity doctrine. In other words, should the decisive
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influence be considered as a fundamental requirement in order to impute the liability

of one legal person to another?
Consequently, the following chapter will examine the potential liability of

innocent subsidiaries in accordance with the single economic entity. It will first determine
the reasoning of the CJEU in light of the contradiction between the principle of parental

liability and the principle of personal liability in order to argue that it is an economic
entity that is liable as a whole for an infringement committed by one of its constituents.
Secondly, the chapter will analyse the function of the decisive influence to determine

the scope of the liability between legal persons in the same economic entity. The Chapter
will conclude with the analysis of the recent preliminary reference from the Spanish

court.

University Commonwealth Law Journal, Vol. 16, No. 2, p.264
66 Case C-882/19 Sumal S.L. vs Mercedes Benz Trucks España, S.L., referred to the Court on 3 December
2019
67 Carsten Koenig, An economic analysis, supra (n.18), p. 286; Karl Hofstetter and Melanie Ludescher,
Fines against Parent Companies in EU Antitrust Law: Setting Incentives, supra (n.18), p.59-60; Simon Burden and
John Townsend, Whose Fault Is It Anyway? Undertakings and the Imputation of Liability (2013) Competition Law
Journal, 3, p.296-297

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