Cartel Sanctions Under Community Law: Definition and Consequences of "Group Responsibility"

In most recent EU cartel cases, the EU Commission has applied a systematic policy of attributing liability to parent companies for infringements by their subsidiaries. Consequences of such policy are far-reaching and may represent an increase of several million Euros in the amount of the fine. But the consequences are not limited to one case, as they may result in very significant fine increase in future cartel cases, through the mechanism of repeat offence (“recidivism”). In implementing this systematic group liability policy, the Commission relies heavily on the presumption that subsidiaries are not autonomous on the market and essentially follow their parent’s instructions, unless proved otherwise. This presumption – even though it remains theoretically refutable – provides the Commission with a powerful tool that it uses widely, at the risk of clashing with the principle of individuality of penalties. This article discusses the scope and uncertainties of the capital ownership presumption and reviews the consequences of the Commission’s catch-all liability policy. In particular, the article discusses some discrepancies in the CFI case law and the ways in which the presumption can be rebutted, at least in theory.

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