The EU Competition Law Notion “Undertaking” That Is Used To Determine Liability For Fines Is Also To Be Used When Determining The Entity That Is Liable For Damages

March 2019

CPI EU News Column edited by Thibault Schrepel, Sam Sadden & Jan Roth (CPI) presents:

The EU Competition Law Notion “Undertaking” That Is Used To Determine Liability For Fines Is Also To Be Used When Determining The Entity That Is Liable For Damages By Caroline Cauffman (Maastricht University)1

Case C-724/17, Skanska Industrial Solutions and Others, ECLI:EU:C:2019:204, March 14, 2019

  

Corporate restructuring of some of the parties to a Finnish cartel raises questions with regard to liability for damages

Between 1994 and 2002 a number of Finnish companies participated in a cartel. By the time the Finnish Supreme Court decided to impose penalties on the cartelists, some of the companies involved had been dissolved in voluntary liquidation procedures. However, their respective sole shareholders acquired their subsidiaries’ assets and continued their economic activity.

Under EU and Finnish competition law, penalties for anticompetitive conduct can be imposed on the legal persons continuing the economic activity of the infringer, under the principle of economic continuity.

Subsequently, a private action for damages was brought before the competent District Court against the companies that had been ordered to pay penalty payments, including the companies that continued the economic activity of the cartelists. These companies then contested the claim that they were jointly and severally liable for the cartel damage, inter alia alleging that they could n…

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