Page 117 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

ฉบับพิเศษ ประจำ�ปี 2564

in action for damages. To ensure the full effectiveness and deterrent effect, the ECJ
41
held that the concept of undertakings in Article 101 TFEU in action for damages could

not have a different scope with regard to the public enforcement such as the imposition
of fines by the Commission under Article 23(2) of Regulation No 1/2003.
42

The implication of the case law

At first glance, the ECJ in Skanska renders the principle of economic continuity,
which is a well-establish principle of EU competition law in public enforcement,
applicable in action for damages in private enforcement. However, with thorough

consideration, the decision of the ECJ in Skanska potentially leads to a significant impact
on future private litigation in the EU competition law field. That is to say, by stating
that the notion of undertaking in Article 101 TFEU is to be directly applicable in action

for damages, the attribution of liability regarding the single economic entity doctrine,
such as the principle of parental liability, would consequently be applied in private
litigation. 43

As discussed earlier, the principle of parental liability in EU competition law

relies strongly, if not entirely, on the notion of the undertaking. When considering
the objective to attribute subsidiaries competition liability to their parent company,
the primary purpose is to ensure deterrence effect. Holding a parent company jointly
44
and severally liable along with the subsidiary leads to the increasing amount of fine that

41 Ibid, para 28
42 Ibid, para 43-47
43 Tatiana Siakka, Case C-724/17 Vantaan kaupunki v Skanska Industrial Solutions: Transposition of the
Concept of an ‘Undertaking’ into Civil Damages Actions (2019) Journal of European Competition Law & Practice,
2019, Vol. 10, No. 8; Vasiliki Fasoula Extending the Principle of Economic Continuity to Private Enforcement of
Competition Law. What Lies Ahead for Corporate Restructuring and Civil Damages Proceedings after Skanska:
Case Comment to the Judgement of the Court of Justice of 14 March 2019 Skanska Industrial Solutions and Others
(Case C-724/17) (2019), 20 YARS 259;
44 C-521/09 P - Elf Aquitaine v Commission ECLI:EU:C:2011:620 para 59, “…. the importance of
the objective of combatting conduct contrary to the competition rules, in particular to Article 101 TFEU, and of
preventing a repetition of such conduct…”, see also Carsten Koenig, An economic analysis of the single economic
entity doctrine, supra (n.18); European Commission, Guidelines on the method of setting fines imposed pursuant to
Art. 23(2)(a) of Regulation No 1/2003, OJ 2006 C 210/2, para 4

115