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ฉบับพิเศษ ประจำ�ปี 2564

between the infringement occurred and the action of the parent company. However,
after the Akzo presumption, such connections are nothing more than an indicia for the

CJEU to establish a single economic entity consisted of legal entities linked by indefinite
elements of the corporate group. In addition, the CJEU, by the statement that the
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presumption of the actual decisive influence does not lead to the presumption of guilt ,
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implicitly lay down the ground rule of the principle of parental liability that the principle
is not affiliated with the fault of a parent company. The relevant fact that the Commission

needs to establish in order to hold a parent company liable for its subsidiary infringement
is that a parent company and its subsidiary belong to the same economic entity.

The practical effect of the presumption of actual decisive influence should also
be mentioned in the aspect of the compatibility with the fault-based liability. Since the

presumption is criticised for being nearly irrebuttable, parent companies with the burden
of proof in almost every case fail to rebut such presumption, making them jointly and
severally liable along with their subsidiaries. There are no clear guidelines on the scope

of the evidence that the EU authorities will examine in order for the presumption to be
rebutted. A parent company has a burden of proof that a subsidiary acts autonomously
without the influence of a parent company in all material respects. The links under
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CJEU consideration may include all economic, organisational and legal links.
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With the expansive potential and no exhaustive lists, a parent company faces with no

directions or guidelines of what might be indications to rebut the presumption.
The limited options that the parent company could rely on are the exception established
in the opinion of the AG Kokott in Akzo case, concerning a parent company being

a purely financial investor, hold the shares temporarily or legally precluded to exert
decisive influence. However, the given circumstances rarely occur, and the reference
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to such exception could be considered unusual and unrealistic in the case of a wholly

92 See section 3.2 below
93 Case C-625/13 P. Villeroy & Boch AG, supra (n.10), para 149
94 Case C-97/08 P Akzo Nobel, supra (n.19), para 72
95 Ibid, para 74
96 Opinion of AG Kokott in Case C-97/08 P Akzo Nobel, footnote 67

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