October 20, 2014

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October 20, 2014

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

Two separate court challenges were brought by a parent and its subsidiary, contesting the fine for which the two companies were held jointly and severally liable.  The two challenges concerned the fine imposed by the European Commission for the subsidiary’s participation in the copper and copper alloy fittings cartel.   

In the first case (Case T-386/06, Pegler v Commission), the General Court reduced the fine imposed on Pegler, a subsidiary of Tomkins, by €1 million.  In the parallel case brought by the parent (Case T-382/06, Tomkins v Commission), the General Court held that the reduction of the fine granted to the subsidiary applied to the parent, by virtue of the fact that the parent and its subsidiary constituted a single entity.  The General Court reasoned that since the Commission imputed liability on the parent based on the single entity doctrine, it follows that the reduction of the fine for the subsidiary should also be extended to the parent company.

The Commission appealed to the CJEU against the General Court’s judgment in Tomkins on several grounds.  In particular, the Commission argued that the General Court ruled ultra petita (above and beyond what had been asked of it), because the challenge brought by the parent company, Tomkins, did not raise the elements decided upon by the General Court in Pegler.  The CJEU held that “where the liability of the parent company is derived exclusively from that of its subsidiary and where the parent and its subsidiary have brought parallel actionshaving the same object, the General Court was entitled, without ruling ultra petita, to take account of [the earlier decision]” (Case C-286/11P, European Commission v Tomkins plc).

The CJEU also rejected the Commission’s argument that the two cases did not have the same object.  It ruled that the notion of the “same object” does not require the scope of the applications by both companies to be identical.  The CJEU did not elaborate, however, on the precise meaning of the expression “same object”. 

When parent companies challenge cartel fines imposed jointly and severally on themselves and their subsidiary, they will have to draft their pleadings carefully to ensure that they can benefit from this “same object” principle.

Aiste Slezeviciute, a trainee solicitor in the Brussels office, also contributed to this article.

© 2014 McDermott Will & Emery

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About this Author

Philip Bentley, QC, McDermott WIll Emery law Firm, Antitrust Attorney
Partner

Philip Bentley is a partner in the international law firm of McDermott Will & Emery/Stanbrook LLP based in its Brussels office.  He is a member of the Firm’s EU regulatory practice and European Competition and Trade Groups.  His practice focuses on EU anti-dumping, trade defense and customs, EU competition (including State aid and public procurement), EU regulatory matters, notably GMOs, and EU litigation.

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Partner

Philipp Werner is a partner in the international law firm of McDermott Will & Emery, based in its Brussels office.   His practice focuses on European and German competition law including State aid, merger control, cartels and abuse of dominance, and his clients include companies in the automotive, infrastructure, transport and health care sectors.

32 2 282 35 67