- ‘Parents are responsible for their children’ – this old saying seems to come true again and again in cartel cases. (1) In proceedings concerning fines imposed for cartel offences it is often not only the firms directly involved in the cartel but also their parent companies that are found to be liable. In this way it is possible, when calculating the amount of a fine, to take proper account of the financial strength of the entire group involved in the cartel. It also increases the likelihood of a solvent debtor being responsible for payment of the fine, regardless of any rearrangement of assets within the group.
- The principle of personal liability, (2) which must always be observed in criminal and quasi-criminal proceedings, sets limits, however, to the attribution of cartel offences within groups of undertakings. Not least for that reason, the European Union judicature repeatedly has to decide whether and under what conditions it is permissible for parent companies to be held liable for the cartel offences of their subsidiaries. (3)
- The present appeal proceedings raise the question of the attribution within a group of undertakings of liability under antitrust law from an altogether novel point of view. The issue to be addressed is whether the European Commission applied different standards for holding liable the parent companies of various participants in one and the same cartel, and whether this was lawful.
- Specifically, the case concerns a Spanish cartel between a number of firms active in the field of the processing of raw tobacco. The Commission fined some of them as being jointly and severally liable with their parent companies, while the parent companies of other participants in the same cartel were not proceeded against by the Commission.
- Essentially, the Court will have to clarify what limits the general principle of equal treatment in European Union law sets to the Commission’s discretion in imposing fines in accordance with Article 23 of Regulation (EC) No 1/2003. (4) The Court’s decision will not only be of fundamental importance for the future administrative practice of the Commission; it is likely also to serve as guidance for the activity of national competition authorities and courts within the European Economic Area.
- Dismiss the appeals;
- Order each party to bear its own costs.
96, 166, 168