Family Relations in European Antitrust Law – ECJ Extends Liability to Sister Companies

In its judgment of 6 October 2021 (Sumal SL v Mercedes Benz Trucks España SL, Case C-882/19), the European Court of Justice (ECJ) took a position on the highly controversial issue of antitrust liability in groups of companies: All group companies are liable vis-à-vis injured parties, even if they were neither the addressees of a decision by the cartel authorities nor involved in infringements, as long as they form part of the same economic unit with the direct infringer.

A Spanish civil court sought a preliminary ruling from the ECJ whether an action for damages in the aftermath of the truck cartel (cf. press release of the European Commission) could also be brought against the Spanish subsidiary of the Daimler group involved in the cartel. The Commission’s decision did not refer to any infringement by the Spanish subsidiary itself. In addition, under Spanish law, only a parent company is liable for subsidiaries it controls while a broader liability within a group of companies is not established.

The ECJ states that the EU law concept of an undertaking applies not only in proceedings before the antitrust authorities, but also in civil law actions for damages. Insofar as the companies affiliated in a group functionally formed an economic unit, each company within this economic unit was liable for infringements of a company also affiliated to this group. This far-reaching liability covers not only the parent company controlling an infringer, but also other companies controlled by the parent company (subsidiary companies). This joint liability is justified as long as the activities of the company against which the claim is made and the infringing company concern the same products. The effectiveness of EU law does not permit an interpretation contrary to the wording of Spanish law. However, since the national provision prevents a claim being made against the Spanish company due to its clearly limited wording, it cannot be applied without infringing primary EU law. In this case, the recourse to the Spanish subsidiary had to be based on the provisions of primary law, here the prohibition of cartels and restrictive agreements (Art. 101 TFEU).

The judgement sets the standards for determining liability in the case of infringements of EU law. It thus has a significant impact on private enforcement of antitrust law not only in Spain, but in all Member States. Under German law, claims for infringements of Art. 101 or 102 TFEU as well as German antitrust law can be brought against the – in the wording of the law – “infringer” (Rechtsverletzer, cf. Sec. 33 (1) GWB). It was controversial whether this term only referred to the legal person directly involved in the antitrust infringements or to the company in the sense of an economic unit. The former opinion can claim that the legislator did not choose the term “undertaking” used elsewhere. Thus, a broad interpretation that overcomes the principle of separation has been normatively rejected. In the light of the ruling, this dispute has now been decided in favour of the opposing opinion, which had countered the interpretation based on the wording with the concept of undertaking in EU law. The only question that remains open is whether liability is limited to the infringing legal person if the antitrust infringement falls exclusively within the scope of application of German law.

For legal practice, the ruling brings considerable relief, among other things, in the choice of court, delivery of legal writs and enforcement. At the same time, the ECJ sends an important signal for the private enforcement of antitrust law, which should not fail due to group law structures or national legal systems.

(16 November 2021)