A Subsidiary can have problems in case of competition disputes in the EU

The European Court has ruled in case C‑882/19 Sumal SL v Mercedes Benz Trucks España SL. This dispute has the following background:

Mercedes Benz Trucks España is a subsidiary company in the Daimler group, the parent company of which is Daimler. Between 1997 and 1999, Sumal acquired two trucks from Mercedes Benz Trucks España, via the intermediary Stern Motor SL, a dealership for the Daimler group.

On 19 July 2016, the Commission adopted Decision C(2016) 4673 final relating to proceedings under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39824 – Trucks), a summary of which was published in the Official Journal of the European Union of 6 April 2017 (OJ 2017 C 108, p. 6) (‘the decision of 19 July 2016’).

According to that decision, 15 European truck producers, including Daimler, participated in a cartel that took the form of a single continuous infringement of Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3), consisting of concluding collusive arrangements on pricing and gross price increases for trucks in the European Economic Area (EEA) and on the timing and the passing on of costs for the introduction of emission technologies for those trucks as required by the standards in force. For 3 of the participating companies, that infringement took place between 17 January 1997 and 20 September 2010 and, for the 12 other participating companies, including Daimler, between 17 January 1997 and 18 January 2011.

Following that decision, Sumal brought an action for damages before the Commercial Court n^o 07 of Barcelona, Spain seeking to obtain from Mercedes Benz Trucks España a payment of EUR 22 204.35, corresponding to the additional cost of acquisition that it bore due to the cartel in which Daimler, the parent company of Mercedes Benz Trucks España, had taken part.

By a judgment of 23 January 2019, that court rejected the action on the ground that Mercedes Benz Trucks España could not be sued by means of that action since Daimler, which alone is referred to in the Commission decision, must be regarded as solely responsible for the infringement concerned.

Sumal brought an appeal against that judgment before the referring court, which wonders whether the actions for damages following decisions of competition authorities making findings of anticompetitive practices may be brought against subsidiary companies which are not referred to in those decisions but which are wholly owned by the companies directly referred to in those decisions.

In that regard, it sets out the differences in the positions adopted by the Spanish courts. Whereas some of those courts accept that such actions may be brought against subsidiary companies, relying on the ‘doctrine of a single economic unit’, others reject such actions on the ground that that doctrine permits the civil liability of a subsidiary company to be attributed to a parent company but does not permit a subsidiary company to be sued as a result of the conduct of its parent company.

In those circumstances, the Provincial Court of Barcelona, Spain decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)  Does the doctrine of the single economic unit developed by the [Court] itself provide grounds for extending liability from the parent company to the subsidiary, or does the doctrine apply solely in order to extend liability from subsidiaries to the parent company?

(2) In the context of intra-group relationships, should the concept of single economic unit be extended solely on the basis of issues of control, or can it also be extended on the basis of other criteria, including the possibility that the subsidiary may have benefited from the infringing acts?

(3) If it is possible to extend liability from the parent company to the subsidiary, what would be required in order for it to be possible?

(4) If the answers to the earlier questions support the extension of subsidiaries’ liability to cover acts of the parent company, would a provision of national law such as Article 71(2) of the [Law on the Protection of Competition], which provides only for liability incurred by the subsidiary to be extended to the parent company, and then only where the parent company exercises control over the subsidiary, be compatible with that line of the Court’s case‑law?’

The Court’s decision:

1. Article 101(1) TFEU must be interpreted as meaning that the victim of an anticompetitive practice by an undertaking may bring an action for damages, without distinction, either against a parent company who has been punished by the Commission for that practice in a decision or against a subsidiary of that company which is not referred to in that decision, where those companies together constitute a single economic unit. The subsidiary company concerned must be able effectively to rely on its rights of the defence in order to show that it does not belong to that undertaking and, where no decision has been adopted by the Commission under Article 101 TFEU, it is also entitled to dispute the very existence of the conduct alleged to amount to an infringement.
2. Article 101(1) TFEU must be interpreted as precluding a national law which provides for the possibility of imputing liability for one company’s conduct to another company only in circumstances where the second company controls the first company.

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