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The pending preliminary reference by the Audiencia Provincial de Barcelona
(“APB”) also concerns the follow-on action for damages of the Truck cartel decision.
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The ECJ has to determine whether the single economic unit doctrine developed by the
CJEU provides grounds for extending liability from the parent company to the subsidiary,

or does the doctrine apply solely in order to extend liability from subsidiaries to the
parent company.

Potential effects of the judgment

By the effect of the case Skanska, the concept of undertaking in Article 101

TFEU is to be directly applied when determining the perpetrator in action for damages.
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In addition, it has been previously discussed that the judgment implies that the principle
of parental liability as a part of the single economic entity can be relied on in civil

litigation of EU competition law. The ECJ in case Sumal is given an opportunity to
clarify such implication.

The focal point of the upcoming case is the clarification of the criteria relating
to the attribution of liability between separated legal persons in the same economic

entity. The prior analysis of the methodology adopted by the CJEU indicates the lack
of explanation concerning the interaction between two fundamental aspects; the existence
of a single economic entity and the decisive influence.

If the ECJ considers that there are further requirements apart from the
establishment of a single economic entity in order to attribute intra-group liability, the

ECJ would have to elaborate on such requirements. For example, to clarify that the
single economic entity doctrine intends to impute the liability only in the upward
direction (from a subsidiary to its parent company), a subsidiary cannot be held liable

for the infringement committed by its parent company, since a subsidiary does not have
a decisive influence over its parent company. A similar interpretation of the methodology

115 Case C-882/19 Sumal S.L. supra (n.66), see also Hans-Markus Wagener ‘And Again: Liability for Cartel
Damages’ (2019) D’KART antitrust blog < https://www.d-kart.de/en/blog/2019/11/15/auf-ein-neues-haftung-von-
konzerngesellschaften> accessed 10 May 2020
th
116 Case C-724/17 Skanska, supra (n.7), para 32, 47

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