Subsidiary liability: the Provimi point answered?

The Court of Justice’s decision in Sumal addressed the question of whether liability for infringements of EU competition law could be attributed to a subsidiary where its parent was the addressee of a European Commission Decision finding a breach of TFEU art.101 or 102 - in this case the Trucks cartel decision.

The conclusion that a local subsidiary selling the cartelised product implements the cartel, is firmly in line with the judgment in Sumal. However, as recent English cases such as Media-Saturn and Vattenfall have trailed, there is still some scope for argument over what amounts to a sufficiently “specific link” between the activities of a subsidiary and the subject matter of an infringement.

In this detailed opinion piece, Scott Campbell and Aqeel Kadri look at the Court’s conclusions as well as Advocate General Pitruzella’s Opinion, which considers the principles of undertakings, decisive influence and attribution of liability. The decision also considers the ‘Provimi point’, namely whether a subsidiary that has implemented anti-competitive conduct without knowledge of the infringement committed by its parent, can be held liable for the same. It clarifies that direct knowledge of the cartel will no longer be a relevant factor to establishing the liability of a subsidiary - at least in EU Member States - which may pave the way for easier local enforcement by claimants.

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This material was first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ, in European Competition Law Review as Subsidiary liability - the Provimi point answered? E.C.L.R. 2021, 42(12), 686-690 and is reproduced by agreement with the publishers.

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