Page 132 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

the liability of one legal person to another in the same economic entity. Following
observations can be determined as endorsements of the claim.

One supporting argument is that the decisive influence is referred to by the CJEU

as an indication that a parent company and its subsidiary shall be deemed to constitute
one undertaking; hence they are jointly and severally liable. Therefore, it can be
theoretically inferred from the current methodology that decisive influence is a mere

tool to identify the scope of a single economic entity which is a separated issue from
the attribution of liability. In his opinion, Kersting articulates that “The ECJ proceeds
105
in several steps in the manner of a hermeneutic circle to establish [parent company]
liability.” 106

Earlier analysis on the compatibility with the principle of personal liability also
contributes to the interpretation that decisive influence does not play a significant role
in the attribution of fines between legal persons in the same economic entity. The analysis

exhibits that to avoid the contradiction with the principle of personal liability, the CJEU
refers to the parent company’s fault derived from the consideration that it is a legal
embodiment of an undertaking who infringes the competition law prohibitions.
107
As a result, it is theoretically possible to argue that the when the Commission establishes
the fault of one of the legal person who belong to an economic unit, such fault is attributed

to other legal persons constituting the same economic entity. With this argument,
all constituents of the undertaking, including inter alia, innocent sister companies and
subsidiaries are to be deemed liable for the competition infringement that they commit

themselves.

In particular, the approach to establish decisive influence in the presumption of
decisive influence, which renders the parent company liability under such circumstance
to be a strict liability , could not be referred to as an important requirement to attribute
108

105 Christian Kersting, , Liability of Sister Companies and Subsidiaries in European Competition Law,
supra (n.58), p.16-19
106 Ibid, p.17
107 Opinion of AG Kokott in Case C-97/08 P Akzo Nobel, para 97-98
108 See fn.159

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