Page 134 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

manner, as the statement from the CJEU, that there have been no successful cases which
can rebut the presumption of the actual exercise of decisive influence does not mean

that the presumption cannot be rebutted in any circumstances , the fact that there have
111
been no cases to impose fines in other directions does not mean that it cannot occur in

any circumstances. The case law concerning sister company liability so far has not given
clear answers to the current question. 112
Consequently, decisive influence serves practically as only one of the indicia

to determine the relationship between the parent company and its subsidiary, not a
fundamental requirement for the attribution of one legal person to another legal person

in the same economic entity. Such interpretation, in addition to the earlier analysis that
competition law liability is imposed on the notion of a single economic entity, gives
rise to the possibility of the liability of innocent sister company and subsidiary. After
the Skanska judgment, the consideration as such is implied to be applied similarly in

the civil proceeding, which will in turn be scrutinised in the following section along
with the recent preliminary reference from the Spanish Court.

IV. Case C-882/19 Sumal

Prior to the Sumal case, the Spanish appellate court had upheld the liability of
a legally independent subsidiary to pay damages for the parent company’s antitrust
violation. In that case, The Spanish Court referred to the single economic doctrine
113
and concluded that a subsidiary could be held liable for the liability of its parent company
since the anticompetitive conducts founded in the Commission decision is considered
to affect the pricing regime of the whole corporate group. 114

111 Ibid, para 62-66
112 Christian Kersting, Liability of Sister Companies and Subsidiaries in European Competition
Law, supra (n.58), p.16; Case C-196/99 P Siderúrgica Aristrain Madrid SL v Commission of the European
Communities ECLI:EU:C:2003:529; Case T-43/02 Jungbunzlauer AG v Commission of the European Communities
ECLI:EU:T:2006:270
113 Juzgado de lo Mercantíl No. 3 de Valencia, judgment of 20 February 2019, ECLI:ES:JMV:2019:34;
see also Hans-Markus Wagener, Follow-up to Skanska¸supra (n.49) p.6
114 Juzgado de lo Mercantíl No. 3 de Valencia, Ibid, para 46

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