Page 128 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

circumvent such principle in order to attribute subsidiary liability to its parent company.
To begin with, one should be borne in mind that the methodology of parental liability

does not resemble that of the fault-based liability. By relying on the vague notion of
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control – the decisive influence exerts or presumably exert by the parent company to

its subsidiary – it is difficult, or nearly impossible to determine the fault of the conducts
committed by a parent company.

Nevertheless, the attribution of subsidiary liability to its parent company in EU
competition law consists of two situations. The first situation occurs when a parent
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company directly participates in a cartel through its subsidiary, such as providing
instructions . The second situation concerns the presumption of the exercise of decisive
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influence. This situation raises the question of whether its application contradicts

the principle of personal liability or not. The practically irrebuttable effect of
the presumption, in accordance with the statement of the CJEU that it is not necessary
to establish the personal involvement in order to attribute subsidiary liability to its parent

company, results in the departure of the parental liability from the principle of personal
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liability.

The lack of the need to establish the involvement of a parent company means
that, in contrast with the presumption of innocence, the guilt of a parent company

is not required to be established in order to hold the parent company liable. Counter-
arguments might be observed that, inter alia, a parent company is guilty because of the
links between it and its subsidiary. This argumentation will be admissible if the links
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mentioned by the CJEU are referred to as the actual evidence that there is a connection

87 Carsten Koenig, Comparing Parent Company Liability in EU and US Competition Law, supra (n.11),
p.73-74, Stefan Thomas, ‘Guilty of a Fault that one has not Committed, supra (n.45), p.18-19
88 Okeoghene Odudu and David Bailey, The single economic entity doctrine in EU competition law, supra
(n.56), p.1747-1752
89 Case 48/69 Imperial Chemical Industries (ICI), supra (n.10)
90 Case T-144/07 ThyssenKrupp Liften Ascenseurs v Commission, ECLI:EU:T:2011:364, para 95; Case
C-97/08 P Akzo Nobel, supra (n.19) para 59; Case C-625/13 P. Villeroy & Boch AG, supra (n.10), para 148
91 Regarding to the economical, organizational and legal links; see Joined Cases C 231/11 P to C-233/11
P Siemens AG Österreich supra (n.3) para 46 and the case-law cited.

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