Summary of the Sumal case
Imputability? In the case there is an “undertaking” and if there is a specific link between the economic activity of the subsidiary and the subject matter of the infringement
According to the CJEU, in order for damages to be successfully recovered from a subsidiary before a national court, the claimant must prove that when considering
the parent company and the subsidiary form a single economic unit, i.e. an undertaking within the meaning of European law. The CJEU’s decision is thus another important building block in the doctrine of “undertaking” or rather, “single economic unit,” which is applied as an autonomous concept under European competition law. In national legislation, it is often the case that assignability of liability for anticompetitive conduct (or unlawful conduct in general) is only possible in the relationship between the controlled and the controlling person, namely, towards the controlling person. According to the CJEU, however, in cases with a European dimension, EU rules prevail—the above conclusions are therefore applicable in cases with a European dimension regardless of the wording of national regulations.
Moreover, the CJEU also concluded that if, at the time of the dispute before the national court, there is already a Commission decision finding the parent company’s conduct to be contrary to Article 101(1) TFEU, the subsidiary cannot successfully challenge the existence of the anticompetitive conduct in question. On the other hand, in the absence of the above-mentioned Commission decision, the subsidiary can challenge both the finding that it and the parent company form a single undertaking and the existence of the anticompetitive conduct itself.
Petr Zákoucký, Partner, Dentons, Prague
Adam Přerovský, Senior Associate, Dentons, Prague
Tomáš Pavelka, Associate, Dentons, Bratislava / Prague
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 Under Article 16 of Council Regulation (EC) No 1/2003 of December 16, 2002 on the implementation of the rules on competition, national courts may not rule contrary to a decision adopted by the Commission.
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