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วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

the Commission can impose since the Commission determine that article 23(2) of the
Regulation 1/2003, stipulating that the limit of the fine to 10% of the undertaking’s total

turnover, refers to the undertaking as an entire corporate group which include not only
subsidiaries but also their parent company. In addition, parent company liability can be
45
served to prevent the adverse effects of personal liability. A parent company might act
opportunistically by engaging with the harmful conducts through other forms of a legal
entity to avoid the competition liability, being considered as an intentional tort .
46
In other words, by taking advantages from the classic principle of personal

liability in corporate law, a parent company might, for example, enter the cartel
agreement through its subsidiaries or implement intricate corporate construction which
renders the victims of the corporate torts impossible to claim the damages occurred.

The abovementioned statements can be served as possible justifications for the principle
of parental liability in EU competition law. Such justifications, resemble the reasonings
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the ECJ describes in order to apply the principle of economic continuity in the current

case. As a result, along with the underlying intention of the ECJ to ensure full
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effectiveness and deterrent effect of the Article 101 TFEU, the settled principle of
parental liability in EU competition law is directly applied in private enforcement in

national courts from now on.
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45 Carsten Koenig, Ibid p.322; Stefan Thomas, ‘Guilty of a Fault that one has not Committed: The Limits
of the Group-Based Sanction Policy Carried out by the Commission and the European Courts in EU-Antitrust Law’,
(2012) J. EUR. COMPETITION L. & PRAC. Vol. 3 issue 1, p.11-12
46 Bruce Wardhaugh, Punishing parents for the sins of their child: extending EU competition liability in
groups and to subcontractors (2017) Journal of Antitrust Enforcement, 2017, 5, p.22, 34; see also Carsten Koenig,
Ibid, p.311-319; Henry Hansmann and Reinier Kraakman, Toward Unlimited Shareholder Liability for Corporate
Torts (1991)The Yale Law Journal, Vol. 100, No. 7,; Frank H. Easterbrook and Daniel R. Fischel, Limited Liability
and the Corporation (1985), The University of Chicago Law Review, Vol. 52, No. 1
47 Carsten Koenig, Comparing Parent Company Liability in EU and US Competition Law, supra (n.11),
p.92-93
48 Case C-724/17 Skanska, supra (n.7), para.46 “Therefore, if the undertakings responsible for damage
caused by an infringement of the EU competition rules could escape penalties by simply changing their identity through
restructurings, sales or other legal or organisational changes, the objective of suppressing conduct that infringes the
competition rules and preventing its reoccurrence by means of deterrent penalties would be jeopardised”
49 Hans-Markus Wagener, Follow-up to Skanska – The “Implementation” by National Courts So Far

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