Page 136 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

can be observed in the ruling of the German courts. Moreover, the ECJ could assert
117
the compliance between the action for damages and the principle of personal

responsibility, since the personal involvement, in terms of decisive influence, is required
in order to be held liable. The interpretation would also align with the interpretation of

the civil liability regarding the single economic doctrine by the national courts in the
Netherlands. The Dutch court determines that in order for a legal person to be held
liable for the anti-competitive infringement committed by another legal person, the

personal culpability is required. 118

Nevertheless, further concerns arise from the effect of the aforementioned
potential ruling. The decision to exclude a subsidiary from the liability of its parent
company would jeopardise the deterrent effect of Article 101 TFEU. The penalties in

EU competition law, by the imposition of fines or action for damages, have been called
upon by the CJEU in order to ensure the deterrent effect of the EU competition law.
119
By implying that, even though a subsidiary belongs in the same economic entity as a

parent company, it is not liable for the infringement committed by a parent company,
it would allow the corporate group to act opportunistically. Furthermore, the exemption
from the liability of a subsidiary would be in contrast with the consideration observed

in the judgment of the Commercial Court of Valencia that regardless of the absence of
decisive influence element, the effect of the anticompetitive infringement is considered

to flow through a subsidiary since the commercial activities of a subsidiary should be
presumably stemmed from the business strategy of a parent company which related to
the infringing conducts.

It follows from the foregoing consideration that the ECJ could consider

attributing the liability of a parent company to a subsidiary. By articulating the single
economic entity as the perpetrator of the EU competition law, the ECJ is able to impute
the liability of one legal person to another. Therefore, a subsidiary is liable for an
120

117 Hans-Markus Wagener, Follow-up to Skanska, supra (n.49) p.3
118 Caroline Cauffman, Civil law liability of parent companies for infringements of EU Competition Law
by their subsidiaries, supra (n.30) p.12
119 Case C-724/17 Skanska, supra (n.7), para 46
120 Case C-440/11 Portielje, supra (n.54) para 36-38

134