Vice President R Silva de Lapuerta,
Presidents of Chambers J-C Bonichot, A Arabadjiev, A Prechal, M Ilešič, L Bay Larsen, A Kumin, N Wahl,
Judges D Šváby (Rapporteur), LS Rossi, I Jarukaitis, N Jääskinen
Advocate General G Pitruzzella
The claimant company bought trucks from a Spanish subsidiary of a global vehicle manufacturing group. Subsequently, the European Commission adopted a Decision imposing a fine on the group’s parent company, as being an “undertaking” which had participated in a cartel that had made pricing agreements in breach of article 101(1) of the FEU Treaty. Following that Decision, the claimant brought an action for damages against the Spanish subsidiary for losses corresponding to the additional cost of acquisition of the trucks under the cartel’s agreements. The action was dismissed on the ground, inter alia, that the subsidiary was not referred to as an “undertaking” in the Commission’s Decision. On the claimant’s appeal, the Spanish court stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question, in essence, whether the victim of an infringement of EU competition law committed by a parent company could seek compensation from that company’s subsidiary for the resulting loss, even though the subsidiary was not referred to in the Commission’s Decision that identified the infringement, on the assumption that these companies constituted an “economic unit”.
On the reference—
Held, the concept of “undertaking” under EU law covered any entity engaged in an economic activity, and thus designated an “economic unit” even if, in law, that unit consisted of several persons. However, the organisation of groups of companies that could constitute an economic unit varied from one group to another and, for the purposes of competition law, the identification of the entities that fell within an “economic unit” depended on the subject matter of the infringement. Where it was established that a company belonging to an economic unit had infringed article 101(1) of the FEU Treaty, all the entities belonging to that unit at the time the infringement was committed were jointly and severally liable for any resulting damage. Thus, where it had been established that a parent company had engaged in anti-competitive conduct, a victim of that conduct could seek to invoke the liability of a subsidiary on condition that the victim proved that the subsidiary, together with its parent company, constituted an “economic unit”, having regard to: (a) the economic, organisational and legal links that connected the two; and (b) the existence of a specific link between the economic activity of that subsidiary and the subject matter of the infringement for which the parent company was responsible. It followed that, in order to bring an action for damages against the subsidiary, the claimant in the present case had to establish that the anti-competitive agreement concluded by the parent company concerned the same products as those marketed by the subsidiary, and in so doing, show that it was precisely the economic unit of which those entities formed a part, which was the “undertaking” which committed the infringement, as found by the Commission. Where an action for damages relied, as in the present case, on a Decision by the Commission that the parent had infringed article 101(1), the subsidiary could not challenge the existence of an infringement, although it could dispute that it belonged to the same undertaking as its parent company. By contrast, in a situation where the Commission had not made such finding, the subsidiary could dispute not only that it belonged to the same “undertaking” as the parent, but also the very existence of the infringement alleged against the parent company (judgment, paras 44–46, 48, 51–55, 60, 67, 73, operative part, para 1).
C von Köckritz and H Weiß and by P Hitchings and M Pérez Carrillo, initially and subsequently by C von Köckritz and H Weiß, A Ward, and M López Ridruejo, for the defendant subsidiary.
S Centeno Huerta and L Aguilera Ruiz, agents, for the Spanish Government.
G Palmieri, agent, and S Fiorentino for the Italian Government.
S Baches Opi, F Jimeno Fernández and C Urraca Caviedes, agents, for the European Commission.