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Joint and Several Liability For Antitrust Fines: Parent Company Can Benefit From a Reduction in Its Subsidiary’s Fine

by Philip Bentley and Philipp Werner

A judgment of the EU General Court in March 2011, upheld on appeal by the Court of Justice of the European Union (CJEU) on January 22, 2013, is potentially good news for parent companies.  Where both a parent company and its subsidiary bring separate court challenges against a cartel fine for which they were held jointly and severally liable, the parent company should benefit from any reduction in fine that the court grants to the subsidiary, provided that the challenges brought by the two companies have the “same object”.  

In light of these judgments, it would appear that a parent company’s argument should be similar to that adopted by its subsidiary when challenging a fine imposed jointly and severally on both of them.  At the same time, the parent company may wish to contest the fact that it was held jointly and severally liable for the subsidiary’s infringement.  This would require the parent to demonstrate that it did not exercise a “decisive influence” over the subsidiary’s commercial policy.  Reconciling this latter argument with a challenge to the subsidiary’s fine is, however, likely to require skilful drafting of the parent company’s pleadings.

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Parents Are Liable for Their Children: Presumption of Parental Liability Under EU Antitrust Law

by Philip Bentley QC, Philipp Werner and Christoph Voelk

Under EU antitrust law, parent companies are presumed liable for antitrust infringement of their wholly owned subsidiaries.  While this presumption is rebuttable, it is unclear what a company must do to rebut it successfully.  The recent Air Liquide judgment of the General Court of the European Union marks the first time that a company escaped the presumption of liability, if only for procedural reasons.  The judgment also sheds some light on the arguments that may work for a parent company.

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