Allocating Cartel Fines Among Companies of a Group
Laura Atlee, Yves Botteman, May 12, 2011
We have previously discussed the Akzo Nobel Chemicals case, in which the Court of Justice of the European Union (formerly European Court of Justice) continued to attribute joint and several liability to parent companies for cartel infringements committed by their wholly owned subsidiaries. The attribution of liability has major implications for the amount-up to 10 percent of global turnover-and payment of any fines imposed by the European Commission (the "Commission") for such infringements.
In this article, we explore how the resulting fine ought to be allocated among a parent and its subsidiaries. In Siemens AG Österreich, the General Court (the "Court") clarified that when the Commission attributes joint and several liability to a parent it must consider: (i) the periods during which the parent effectively exercised control over the subsidiaries; and (ii) allocate, if need be, the amount covered by joint and several liability among those entities in order to reflect their liability for the infringement.