Page 110 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

and they are deemed to be jointly and severally liable when a subsidiary does not act
autonomously but carries out, in all material aspects, the instructions given by a parent

company. 3

The methodology of the attribution of liability is ambiguous. The parent company
is liable for its subsidiary infringement since they form a single economic entity.
However, the additional reason for parental liability is that a parent company exercises

decisive influence over its subsidiary. There is no explicit explanation whether, without
decisive influence, the parent company is liable or not since the statement from the

CJEU has been that a parent company liability derived from the fact that it forms
a single economic entity along with its subsidiary. Therefore, it could be considered
that an innocent subsidiary, as one of the constituents of a single economic entity,

can be held liable for an antitrust infringement committed by other members of
the same economic entity, such as a parent company.

Regarding to the litigations, on the one hand, the attribution of liability so far
has been dominantly concerned with the public litigation, which is the imposition of
fines by the EU Commission. On the other hand, the notion of undertaking has not
4
been entirely transposed to the action for damages. In civil procedures, the imputability
of the liability can be governed by national competition law, in accordance with the

principle of equivalence and effectiveness. Even though the Damages Directive has been
5
recently introduced in order to facilitate the process of action for damages , it is
6
still unclear whether the concept of undertaking in Article 101 is to be directly applied

in the civil procedures or not. However, the European Court of Justice (hereinafter ECJ)
in case Skanska recently held that the concept of undertaking in civil procedure should

3 Case C-231/11 P to C-233/11 P Commission v Siemens Österreich and Others and Siemens Transmission
& Distribution and Others v Commission, P, ECLI:EU:C:2014:256, para 46 and the case-law cited
4 Council Regulation (EC) No 1/2003 of 16 Dec. 2002 on the implementation of the rules on competition
laid down in Arts 81 and 82 of the Treaty, OJ 2003 L 1/1.
5 Case C-557/12 Kone and Others v ÖBB-Infrastruktur AG ECLI:EU:C:2014:1317 para. 24
6 Directive 2014/104/EU of the European Parliament and of the Council of 26 Nov. 2014 on certain
rules governing actions for damages under national law for infringements of the competition law
provisions of the Member States and of the European Union, OJ 2014 L 349/1.

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