Page 126 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

From then, the methodology is still rational since the ECJ determined that the attribution
of a subsidiary liability to its parent company is related to the fact that the actions of

the parent company, by providing instructions to its subsidiary in addition with the
multidimensional links between them. If it were to concluded here, the parental liability

could have the potential to be in line with the personal liability, since it considers that
there is a connection between the infringement and the action of the parent company
along with supporting evidence indicating that the parent company is involved either

directly or indirectly. 78

However, the following statement from the ECJ renders our consideration
obsolete. By entangling the parental liability with the concept of a single economic unit,
the language of the ECJ can be interpreted as that it is because the existence of a single

economic unit, not because of the illegal acts committed by the parent company,
that enable the Commission to impose fines on a parent company. The subsequent
determination which stating that the involvement of the parent company in the

infringement is not required, should also be understood as a supporting indication of
such argument.

Due to the failure from the ECJ to clarify the compatibility of parental liability
with the principle of personal liability, another glimpse of hope lies within the opinion

of the Advocate General Kokott in the same case. In her opinion, the AG stated that,
due to the increase in the complexity of corporate group and to ensure the principle of
personal liability and the effective enforcement of the competition law, a parent company

exercising decisive influence over its subsidiaries are to be held jointly and severally
liable Consequently, the AG determined that it is the “legal embodiment of the
79
undertaking” who commits the anticompetitive conduct.” However, in spite of this
80
reasoning, the AG mentioned the decisive influence rational in a subsequent paragraph ,
81

78 Andriani Kalintiri, Revisiting Parental Liability in EU Competition Law, supra (n.25), p.156
79 Opinion of AG Kokott in Case C-97/08 P Akzo Nobel , para 42-44
80 Ibid, para 97-98 (emphasis added)
81 Ibid, para 99; “….As the parent company exercising decisive influence over its subsidiaries, it pulls the
strings within the group of companies.”

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