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วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

own subsidiary. Therefore, in reality, the irrebuttable effect of the presumption turns
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the parental liability into the strict liability 98

Consequently, not only that the CJEU is unable to justify the compatibility of

the principle of parental liability with the principle of personal liability, but its
argumentations also consistently point out that parent company is liable because
it belongs in the same economic entity as a perpetrator, its subsidiary. Several attempts

by the CJEU to argue otherwise could be considered lip service. In addition,
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the attributes of the collective liability of legal persons in the same group as such

resemble characteristics of vicarious liability This acknowledgement, along with
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the observation that the presumption of exercise of decisive influence in a wholly own
subsidiary renders the parental liability strict liability, can be interpreted as that when

a legal person commits an antitrust infringement, such as participating in a cartel if such
legal person belongs in the economic entity, its infringement is deemed to be committed
by the concerned economic entity. Therefore, other constituents belonging to the same

economic entity are to be held jointly and severally liable for the infringement, even
though they are not part of, or even recognise, the anticompetitive conduct. 101

With this intention, the subsequent section will examine whether the concept of
decisive influence plays a significant role in order for the liability of a subsidiary to be

attributed to its parent company or not.

Decisive influence as a requirement of the attribution of liability?

Before drawing any conclusion on innocent subsidiary liability, there is a need
for further analysis on the relationship between the notion of decisive influence and the
attribution of competition liability. Even though the undertaking is considered to be the

97 John Temple Lang, How Can the Problem of the Liability of a Parent Company for Price Fixing
By a Wholly-Owned Subsidiary Be Resolved? supra (n.26), p.1502-1503
98 Carsten Koenig, An economic analysis, supra (n.18) p.286, Paul Hughes, Paul Hughes, Competition
law enforcement and corporate group liability - adjusting the veil, E.C.L.R. 2014, 35(2), p.78
99 Antoine Winckler, Parent’s Liability: New case extending the presumption of liability of a parent
company for the conduct of its wholly owned subsidiary (2011) JECL&P Vol. 2 No. 3
100 Andriani Kalintiri, Revisiting Parental Liability in EU Competition Law, supra (n.25), p.157-159
101 See for example, Case C-440/11 Portielje, supra (n.54) para 44

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