Antitrust liability, corporate groups and M&A transactions: a tale of undertakings, economic continuity and effectiveness of EU competition law

ABSTRACTWho should be liable for competition law infringements? While the answer should be, in theory, a simple application of the personal liability principle – the infringer pays – the corporate changes that an infringer may undergo in the years necessary to come to an imputation of the infringement make the matter, in practice, significantly more complex. In this article, we first investigate the core of the antitrust liability theories, all to be traced back to the fundamental concept of undertaking, which constitutes their indispensable theoretical background. Then, we will try to provide an answer to the question, by analyzing, on the basis of the case-law, the multifaceted and colourful applications of antitrust liability theories to M&A transactions involving antitrust infringers. Lastly, we lay out practical suggestions which may be useful for companies to minimize the risks of being left with antitrust liability as a result of corporate transactions.KEYWORDS: Antitrust liabilityundertakingSumalSkanskaeconomic continuity Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 P Whelan, ‘Private Enforcement and the Imputation of Antitrust Liability’ in B Rodger, F Marcos and M Sousa Ferro (eds), Research Handbook on Competition Law Private Enforcement in the EU (Elgar Publishing) 159–80, available at SSRN: 159 and 175. See also C Reichow, ‘The Court of Justice’s Sumal Judgment: Civil Liability of a Subsidiary for its Parent’s Infringement of EU Competition Law’ (2021) 6(3) European Papers 1327.2 Judgment of the Court of First instance of 30 September 2009, case T-161/05, Hoechst v. Commission, EU:T:2009:366, §58.3 Opinion of A.G. Kokott of 29 November 2012, case C-440/11 P, Commission v. Stichting Administratiekantoor Portielje, EU:C:2012:76, §32.4 Judgment of the Court of Justice of 6 October 2021, case C-882/19, Sumal v. Mercedes Benz Trucks España (Sumal), EU:C:2021:800, §43.5 Judgment of the Court of Justice of 26 January 2017, case C-625/13P, Villeroy & Boch AG v. Commission, EU:C:2017:52, §154.6 Sumal, cit., §39 and judgment of the Court of Justice of 14 March 2019, case C-724/17, Vantaan kaupunki v. Skanska Industrial Solutions Oy and others (Skanska), EU:C:2019:204, §32.7 Sumal, cit., §42.8 Opinion of A.G. Wahl of 6 February 2019, Skanska, EU:C:2019:100, §66.9 Sumal, cit., §38.10 Articles 101 and 102 TFEU refer to undertakings as subjects which can infringe competition law, Articles 23(2) of Regulation 1/2003 and 2(2) of Directive 2014/104/EU mention the undertaking as the subject on which fines should be imposed and damages should be claimed in connection with a competition law infringement.11 Whelan, cit., 160.12 S Thomas, ‘Guilty of a Fault that one has not Committed. The Limits of the Group-Based Sanction Policy Carried out by the Commission and the European Courts in EU-Antitrust Law’ (2012) 3(1) JECLAP 33.13 Judgment of the Court of Justice of 27 April 2017, case C-516/15, Azko Nobel v. Commission, EU:C:2017:314, §48, emphasis added. See also opinion of A.G. Rantos of 14 July 2022, case C-680/20, Unilever Italia v. AGCM, EU:C:2022:586, §§23 ff., see, in particular, §25.14 Sumal, cit., §41.15 Judgment of the Court of First Instance of 17 December 1991, case T-6/89, Enichem v Commission, EU:T:1991:74, §§233–235. Sumal, cit., §41.16 See, e.g. judgment of the Court of Justice of 5 of September 2019, case C-447/17P, Guardian Europe v. Commission, §103.17 See, in this respect, judgment of the Court of Justice of 19 February 2002, case C-309/99, Wouters and others v. Algemene Raad van de Nederlandse Orde van Advocaten, EU:C:2002:98, §§56–66. O Odudu and D Bailey, ‘The Single Economic Entity Doctrine in EU Competition Law’ (2014) 51(6) CMLR 1723 and 1725.18 Sumal, cit., §39. Interestingly, a historical analysis shows that this term was chosen to limit the subjective scope of the powers conferred on the organizations that would later become the EU, rather than for competition law reasons (W Mölls, ‘Why Does Regulation (EC) No 1/2003 Provide for the Imposition of Penalties Only on Undertakings?: A Historical Perspective’ (2022) 45(2) World Competition 195–236).19 Whelan, cit., 161. Before Skanska, antitrust liability issues were deemed to be governed by national laws, which are very strict when it comes to piercing corporate veils (in many countries, the application of the undertaking/single economic entity theory in the area of damages had been explicitly ruled out precisely out of respect for the principles of separation and legal personality of companies – see M Schunke and M Walter, ‘Piercing the Corporate Veil: The German Sausage Saga’ in M Corradi and J Nowag (eds), The Intersections between Competition Law and Corporate Law and Finance (Cambridge University Press, forthcoming, Chapter 7, 7).20 C Koenig, The Boundaries of the Firm and the Reach of Competition Law: Corporate Group Liability and Sanctioning in the EU and the US, in Corradi, cit., 1, referring to, e.g. judgments of the Court of Justice of 8 May 2013, case C-508/11P, Eni v. Commission, EU:C:2013:289, §§78–83; of the General Court of 15 July 2015, case T-389/10, SLM v. Commission, EU:T:2015:513, §§388–389. See also A Jones, ‘The Boundaries of an Undertaking in EU Competition Law’ (2012) 8(2) ECJ 301–2.21 See Koenig, cit., 9, pursuant to which a “strategic use of limited liability allows shareholders to fully benefit from the opportunities for profit, but insist on the corporate separateness of their corporation in the event of losses. Such an incentive situation may also arise with regard to infringements of competition law”.22 Judgment of the Court of Justice of 18 July 2013, case C 501/11P, Schindler v. Commission, EU:C:2013:522, §§101–102, emphasis added.23 Opinion Stichting, cit., §§72–73.24 Opinion of A.G. Kokott of 18 April 2013, case C-501/11 P, Schindler Holding and others v. Commission, EU:C:2013:248, §§65–66.25 A Reuter, ‘Flogging the Wrong: EU Corporate Fines Violate the Fundamental Rights of Shareholders’ (2021) 12(4) JECLAP 314.26 Judgment of the Court of Justice of 7 July 2022, case C-261/21, F. Hoffmann-La Roche Ltd and others v. AGCM, EU:C:2022:534, §44. For private enforcement, see the judgment of the Court of Justice of 5 June 2014, case C-557/12, Kone and Others v. Commission, EU:C:2014:1317, §24. See also Article 299 TFEU, which provides that “[a]cts of … the Commission which impose a pecuniary obligation on persons other than States, shall be enforceable”, and “[e]nforcement shall be governed by the rules of civil procedure in force in the State in the territory of which it is carried out”.27 Skanska, cit., §28. See also Whelan, cit., 174–75.28 W Wurmnest, ‘Liability of “Undertakings” in Damages Actions for Breach of Articles 101, 102 TFEU: Skanska’ (2020) 57(3) CMLR 917; C Cauffman, Civil Law Liability of Parent Companies for Infringements of EU Competition Law by their Subsidiaries, 6 .29 Wurmnest, cit., 924. See also M Botta, ‘The Economic Succession Doctrine in Private Enforcement of EU Competition Law, ‘Nothing Extraordinary’ after Skanska Industrial?’ (2019) 3(2) MCLR 173. See also Opinion Skanska, cit., §67.30 Koenig, cit., 13 and Schunke, Walter, cit.31 See FCO, “Proceedings against companies of ClemensTönnies group concluded – fines of 128 million euros cancelled due to restructuring measures” (Press release 19 October 2016, ).32 M Sousa Ferro, ‘The Portuguese “Sausage Gap”: Parent Company Liability for Antitrust Infringements Not Yet Assured in Portugal’ (2017) 1(3) ECRLR 266–68.33 Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, OJ L 11, 14.1.2019, recital 5.34 ECN+ Directive, cit., preamble, recital 46. See, on this point, Botta, cit., 177–78.35 ECN+ Directive, cit., Article 13§5.36 See, e.g. with respect to joint and several liability, Judgment of the Court of Justice of 10 April 2014, joined cases C-247/11P and C-253/11P, Areva and Alstom v. Commission, EU:C:2014:257, §132; with respect to parental liability, opinion of A.G. Kokott of 23 April 2009, case C-97/08P, Akzo Nobel and Others v Commission, EU:C:2009:262, §43.37 Judgment of the CFI of 20 April 1999, joined cases T-305-307, 313-316, 318, 325, 328-329/94 and T-335/94, Limburgse Vinyl Maatschappij and Others v. Commission, EU:T:1999:80, §978. See also Article 299 TFEU.38 Whelan, cit., 159–60. See also opinion of A.G. Kokott of 3 July 2007, case C-280/06, AGCM v. ETI, EU:C:2007:404, §§68–69, and Odudu, Bailey, cit., 1724.39 Judgment of the Court of Justice of 10 April 2014, joined cases C-231 and 233/11P, Commission v. Siemens Österreich and Others, EU:C:2014:256, §§55–56, emphasis added.40 See, among many others, B Leupold, ‘Effective Enforcement of EU Competition Law Gone Too Far? Recent Case Law on the Presumption of Parental Liability’ (2013) 34 ECLR 579; Thomas, cit., 14; Reuter, cit., 301–14.41 Judgment of the Court of Justice of 10 September 2009, case C-97/08P, Azko Nobel v. Commission, EU:C:2009:536, §77. The liability for an infringement of the EU competition law “is personal in nature, [and therefore] the undertaking which infringes those rules must answer for … the infringement” (Skanska, cit., §31, see also Siemens, cit., §44, Sumal, cit., §42).42 Idem, §57.43 Opinion, Akzo Nobel, cit., §43.44 Koenig, cit., 7 ff..45 Judgment of the General Court of 13 December 2018, case T-827/14, Deutsche Telekom AG v. Commission, EU:T:2018:930, §505, emphasis added (translation of the authors); see also Siemens, cit., §49.46 Sumal, cit., §62.47 Siemens, cit., §50.48 Idem, §63.49 See, e.g. judgment of the Court of Justice of 24 September 2009, case C-125/07P, Erste Group Bank and Others v. Commission, EU:C:2009:576, §§81–82 and judgment of the General Court of 11 July 2014, case T-543/08, RWE and RWE Dea v. Commission, EU:T:2014:627, §136.50 Judgments of General Court of 27 June 2012, case T-372/10, Bolloré v. Commission, EU:T:2012:325, §50; of 11 July 2014, Case T-541/08, Sasol and others v. Commission, EU:T:2014:628, §§182–183.51 Jones, cit., 305.52 Schunke, Walter, cit., 13.53 T Cheng and K Kwok, Hong Kong Competition Law: Comparative and Theoretical Perspectives (Cambridge University Press 2021) 36. See also, along the same lines, Schunke, Walter, cit., 11 and 13; and B Cortese, ‘Piercing the Corporate Veil in EU Competition Law: The Parent Subsidiary Relationship and Antitrust Liability’ in B Cortese (ed), EU Competition Law – Between Public and Private Enforcement (Wolters Kluwer 2014) 74.54 Schindler, cit., §102.55 Judgment of the Court of Justice of 4 September 2014, case C-408/12P, YKK Corporation v. Commission, EU:C:2014:2153, §§55–68, 97, specifically dealing with such calculation in case of acquisitions of infringing companies. See, on this, Koenig, cit., 14–28, see also A Kalintiri, ‘Revisiting Parental Liability in EU Competition Law’ (2018) 43(2) ELR 158.56 Sumal, cit., §44, see also Deutsche Telekom, cit., §505.57 Jones, cit., 306.58 Cauffman, cit., 5.59 See, among many others, M Leddy and A van Melkebeke, ‘Parental Liability in EU Competition Law’ (2019) 40(9) ECLR 414; Kalintiri, cit., 158–59; A Winckler, ‘Parent’s Liability: New Case Extending the Presumption of Liability of a Parent Company for the Conduct of its Wholly Owned Subsidiary’ (2011) 2(3) JECLAP 231, 233; B Leupold, cit.; L La Rocca, ‘The Controversial Issue of Parent-Company Liability for the Violation of EC Competition Rules by the Subsidiary’ (2011) 2 ECLR 68; J Botteman and L Atlee, ‘You Can’t Beat the Percentage – The Parental Liability Presumption in EU Cartel Enforcement’ (2012) EAR 3. For a complete account of all criticisms against parental liability, see K Havu, ‘Competition Infringement Damages Actions: Ruling in Skanska Provides Clarifications on Who is Liable’ (2020) 4 ELR.60 Thomas, cit., 11.61 Skanska, cit.62 Id., §§47 and 31.63 Id., §§38–40.64 Sumal, cit.65 Idem, §46.66 Idem, §47.67 Idem, cit., §50, emphasis added.68 Idem, §51.69 See, e.g. on this topic, in favour of a full cross-contamination A López Usatorre, Red Pill or Blue Pill? The European Court of Justice Makes its Choice: Subsidiaries Can be Held Liable for the Infringements of their Parent Companies (Case C-882/19 – Sumal) (Kluwer Competition Law Blog, 12 October 2021) ; M Araujo Boyd, Of Undertakings, Legal Entities and Groups of Companies. The CJEU’s Judgment in Sumal (C-882/19) (Chillin’Competition Blog, 7 October 2021) . See, contra, e.g. C Reichow, ‘The Court of Justice’s Sumal Judgment: Civil Liability of a Subsidiary for its Parent’s Infringement of EU Competition Law’ 2021 6(3) EP 1325–37, and Whelan, cit.70 Skanska, cit., §47; Sumal, cit., §§38 e 42.71 Sumal, cit., §43.72 In favour of this view, see Koenig, cit., p. 31. Claiming that this is already so after Skanska, C Kersting and J Otto, ‘The Civil Liability of the Economic Unit’ (2021) 651 and (2022) 14 NZK 2. See also B Freund, ‘Reshaping Liability – The Concept of Undertaking Applied to Private Enforcement of EU Competition Law’ 2021 70(8) GRURI 736 and 738; V Ulfbeck ‘Vicarious Liability in Groups of Companies and in Supply Chains – is Competition Law Leading the Way?’ (2019) 3(2) MCLR 117–18.73 This already happened in Italy: in a recent judgment, the Italian Council of State considered, in a case of parent liability and with a view to identifying the relevant turnover of the infringing undertaking to ensure compliance with the 10% turnover ceiling, that, “without prejudice to the solidarity and co-responsibility between the two companies”, the turnover that should be taken into account to this end is “only that of the parent company and the [given] subsidiary [which actually carried out the infringement] and not also that of other companies in the group not operating in Italy and/or unable to prevent or put an end to the infringing in question, therefore [applying an unprecedented principle] of strictly vertical solidarity”, similar to that considered in Sumal (judgment of 2 July 2021, case No. 5058/2021, Babcock Mission Critical Services Italia SpA v. AGCM, §7, translation of the authors from the original in Italian).74 Reichov, cit., 1331.75 C Cauffman, Beyond Skanska. The Court of Appeal of Arnhem Leeuwarden’s latest decision in TenneT, 3; see also H-M Wagener, Follow-up to Skanska – The “Implementation” by National Courts So Far; Havu, cit., 532.76 See Usatorre, cit., Reichov, cit., 1331; and Whelan, cit., 12.77 Judgments of the Court of First Instance of 17 May 2013, case T-146/09, Parker ITR and Parker-Hannifin v. Commission, EU:T:2013:258, §124; 10 April 2008, case T-271/03, Deutsche Telekom v. Commission, EU:T:2008:101, §§511–513.78 A Kadri and S Campbell, ‘Subsidiary Liability – The Provimi Point Answered?’ (2021) 42(12) ECLR 687.79 Interestingly enough, another recent judgment includes some statements which also can be interpreted as an opening towards top-down liability (see judgment of the General Court of 12 December 2018, case T-677/14, Biogaran v. Commission, EU:T:2018:910, §§209, 215–216; see also judgment of the Court of First Instance of 11 March 1999, case T-145/94, Unimétal v. Commission, EU:T:1999:49, §§601–606, and Kadri, Campbell, cit., 687–688).80 The expression is taken from E Barbier de la Serre; E Lagathu, ‘The Law on Fines Imposed in EU Competition Proceedings: Fifty Shades of Undertakings’ (2015) 6(7) JECLAP 530–552.81 See e.g. EU Commission decision of 18 June 1969, case 69/195/CEE, Christiani & Nielsen. OJ L 165 (1969) 12 and the judgment of the CJEU of 17 May 2018, case C-531/16, Ecoservice, EU:C:2018:324, §28.82 Judgment of the CJEU of 12 January 1995, case T-102/92, Viho Europe BV v. Commission, EU:T:1995:3, §§50 and 54.83 Judgment of the CJEU of 14 July 1972, case 48/69, ICI v. Commission, EU:C:1972:70, §§132–135.84 Judgment of the CJEU of 12 July 1984, case 170/83, Hydrotherm, EU:C:1984:271, §11. Odudu, Bailey, cit., 1726–27.85 EU Commission Guidelines on the applicability of Article 101 TFEU to horizontal co-operation agreements, OJ C 11, 14.1.2011, §11, see also ICI, cit., §133.86 Opinion Rantos, Unilever, cit., §§39–55. Judgment of the Court of Justice of 19 January 2023, case C-680/20, Unilever v. AGCM, EU:C:2023:33, §§29–33.87 For a general discussion of such theory see, inter alia, M Leddy and A Van Melkebeke, ‘Parental Liability in EU Competition Law’ (2019) 40(9) ECLR 407 ff., and opinion A.G. Pitruzzella of 15 April 2021, Sumal, §§27–28, 31 and 41–44.88 Judgment of the General Court of 2 February 2012, case T-77/08, Dow Chemical v. Commission, EU:T:2012:47, §106.89 Eni, cit., §46.90 Judgments of the Court of Justice of 11 July 2013, case C-440/11P, Commission v. Stichting Administratiekantoor Portielje and ors, EU:C:2013:514, §68; and of 27 January 2021, case C-595/18 P, Goldman Sachs Group v. Commission, EU:C:2021:73, §§93–94.91 Judgment of the Court of First Instance of 16 June 2011, joined cases T-208-209/08, Gosselin and Stichting v. Commission, EU, EU:T:2011:287, §56.92 Judgment of the Court of Justice, case C-90/09P, General Química v. Commission, EU:C:2011:21, §§84, 86–89.93 Judgment of the Court of Justice of 15 April 2021, case C-694/19P, Italmobiliare and others v. Commission, EU:C:2021:286, §41. Liability is excluded only if the holding refrains from any involvement in the management and control of the subsidiary (judgment of General Court of 12 December 2012, case T-392/09, 1 Garantovaná v Commission, EU:T:2012:674, §§50–52).94 Stichting CJEU, cit., §§42–45.95 Goldman Sachs CJEU, cit., §35.96 Judgment of the Court of First Instance of 27 September 2006, case T-314/01, Coöperatieve Verkoop- en Productievereniging van Aardappelmeel en Derivaten Avebe v. Commission, EU:T:2006:266, §138 (parents held jointly liable with the JV).97 Named after the Azko 2009 case, cit.98 Judgment of the Court of Justice of 29 September 2011, case C-521/09P, Elf Aquitaine v. Commission, EU:C:2011:620, §§56–59.99 See, e.g. judgment of the Court of First Instance of 27 November 2014, case T-517/09, Alstom v. Commission. EU:T:2014:999, §§97–118. See also Elf Equitaine, cit., §§144–17 and judgment of the Court of Justice of 2 October 2003, case C-196/99, Siderúrgica Aristrain Madrid SL v. Commission, EU:C:2003:529, §§97–101.100 Elf Aquitaine, cit., §88; Sumal, cit., §§42–44. See also judgment of the Court of Justice of 1° July 2010, case C-407/08 P, Knauf v. Commission, EU:C:2010:389, §109, and Reikov, cit., 1328.101 Judgments of the General Court of 27 September 2012, case T-347/06, Nynäs Petroleum and Nynas Belgium v. Commission, EU:T:2012:480, §40; and of 12 July 2018, case T-419/14, The Goldman Sachs Group v. Commission, EU:T:2018:445, §188.102 Sumal, cit., §§51–52.103 Idem, §47.104 Opinion Sumal, cit., §§56–58. See also N Brueggemann, ‘The Unsung Harmony of Sumal and the Azko Line of Case Law’ in D Bosco and others (eds), Private Enforcement in Europe after Sumal, February 2022, Concurrences N° 1-2022, Art. N° 105291, §21.105 See, mutatis mutandis, Opinion Sumal, cit., §38.106 Aristrain, cit., §§98–99.107 Judgment of Court of First Instance of 27 September 2006, case T-43/02, Jungbunzlauer v. Commission, EU:T:2006:270, §§101–105 and 123–133, where the sister company exercised decisive influence over the infringer, and 5 March 2015, joined cases C-93/13P and C-123/13P, Versalis v. Commission, EU:C:2015:150, §§52–54, where the liability of the sister was triggered by the fact that it shared the same parent of the infringer and it acquired the infringing assets (see also judgment of the Court of Justice of 29 March 2011, joined cases C-201 and 216/09 P, ArcelorMittal Luxembourg v. Commission, EU:C:2011:190, §104).108 Sumal, cit., §42, emphasis added; see also §43, referring to the “liability of one or other of the companies making up that undertaking”. On this point, see Whelan, cit., 179–82, Usatorre, cit., and Reikov, cit., 1331.109 Horizontal guidelines, cit., §11.110 Besides the fact that competition law proceedings may be opened years after the occurrence (and the conclusion) of an antitrust infringement and such proceedings frequently take years to be concluded, a final word may often be said on these matters only after the subsequent appeals which, again, last years (the GC just recently confirmed that the Commission still had the power to sanction infringers of competition law despite the infringement at issue was 30 years old – judgment of the General Court of 9 November 2022, case T-667/19, Ferriere Nord v. Commission, EU:T:2022:692, §§343–367). Moreover, appeal proceedings interrupt the running of the time-period relevant for the application of the statute of limitation for damage claims.111 See, in this respect, Hoechst, cit., §61.112 The enforcer is required, in such case, “to fix separately, for each of the undertakings involved, the amount of the fine for which the companies forming part of the undertaking are jointly and severally liable” (Areva, cit., §133).113 Judgment of the Court of First Instance of 11 March 1999, case T-134/94, NMH Stahlwerke GmbH v. Commission, EU:T:1999:44, §127.114 Hoechst, cit., §50.115 YKK, cit., §65.116 Parker, T-146/09, cit., §88.117 EU Commission decision of 29 November 2006, case COMP/F/38.638 – Butadiene Rubber and Emulsion Styrene Butadiene Rubber, §337, emphasis added.118 ibid.119 ibid.120 Judgment of the Court of Justice of 11 December 2007, case C-280/06, AGCM v. ETI and Others, EU:C:2007:775, §41. See also Skanska, cit., §§38 and 46–47.121 Judgments of the CJEU of 8 July 1999, case C-49/92 Anic v. Commission, EU:C:1999:356, §145 and ETI, cit., §§49 ff.122 Opinion Skanska, cit., §73.123 ETI, cit., §§48 ff.; judgments of the Court of Justice of 18 December 2014, case C-434/13P, Parker Hannifin v. Commission, EU:C:2014:2456, §41;Versalis, cit., §53; 24 September 2020, case C-601/18P, Prysmian v. Commission, EU:C:2020:751, §87.124 Opinion ETI, cit., §81, emphasis added. More recently, see judgment of General Court of 6 December 2018, case T 531/15, Coveris Rigid France v. Commission, EU:T:2018:885, §49.125 A.G. Kokott herself, while stressing the need to preserve the exceptional nature of the theory of economic continuity, immediately added that “[t]his does not prevent new categories of cases from being recognised in addition to the two [i.e. infringer ceases to exist in law or economically] mentioned above” (Opinion ETI, cit., §82).126 Opinion Skanska, cit., §74.127 Judgment of the Court of Justice of 28 March 1984, case C-29/83, CRAM and Rheinzink v. Commission, EU:C:1984:130.128 Idem, §8.129 ibid, emphasis added.130 Idem, §9, emphasis added.131 Judgment of the Court of Justice of 5 December 2013, case C-448/11 P, SNIA v. Commission, EU:C:2013:801, §25.132 See, e.g. Erste, cit., §79. The same principles were applied in judgment of the Court of Justice of 16 December 1975, joined cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73, Suiker Unie UA and others v. Commission, EU:C:1975:174, §§79–87.133 Cit.134 Anic, cit., §145.135 ibid and §146, emphasis added. See also Hoechst, cit., §52.136 Cortese, cit., 80.137 NMH, cit., §§100 and 107.138 Idem, cit., §§108.139 Id., §126.140 Id., cit., §138.141 Id., §128.142 Id., cit., §§115 and 130, 137.143 Id., §§124–125 and 131, 133.144 Id., §136.145 Judgment of the Court of Justice of 7 January 2004, joined cases C-204, 205, 211, 213, 217 and 219/00P, Aalborg Portland A/S and Others v. Commission, EU:C:2004:6, §359.; ETI, cit.146 Aalborg, cit., §356.147 Idem, §§346 and 357.148 Id., §359.149 Cortese, cit., 81.150 ETI, cit.151 Idem, §§40, 42 and 45.152 Id., §48, emphasis added.153 Id., §49. See also Hoechst, cit., §64.154 Hoechst, cit., §§51–52.155 Judgment of the Court of Justice of 29 March 2011, case C-352/09P, ThyssenKrupp Nirosta v. Commission, EU:C:2011:191.156 Idem, §153.157 Id., §152.158 Judgment of the Court of Justice of 13 June 2013, case C-511/11P, Versalis v. Commission, EU:C:2013:386.159 Versalis C-93/13P, cit., §55. In another recent judgment, the CJEU excluded that the risk of insolvency was the sole reason for the application of the principle of economic continuity, while relying however on the need to ensure deterrence (judgment of 28 October 2020, case C-611/18P, Pirelli v. Commission, EU:C:2020:868, §§98–99).160 Judgment of the Court of Justice of 18 December 2014, case C-434/13P, Commission v. Parker Hannafin, EU:C:2014:2456.161 Parker Hannafin, cit., §47. The CJEU held that the “taking into consideration of the economic reasons which led to the creation of a subsidiary, or the objective, in the long- or short-term, of transferring that subsidiary to a third-party undertaking, would introduce into the application of the principle of economic continuity subjective factors which are incompatible with a transparent and predictable application of that principle” (§53).162 Parker Hannafin, cit., §46, emphasis added.163 Idem, §§50 and 52. See also the judgment of the GC of 12 July 2018, case T-474/14, Prysmian v. Commission, EU:T:2018:448, §135.164 Opinion of A.G. Wathelet of 4 September 2014, Parker Hannafin, §§16 and 51.165 Hoechst, cit.166 Idem, §61.167 Idem, §62, emphasis added.168 Id., cit., §63.169 Interestingly, despite the fact that the Hoechst judgment was relied upon by the infringer in the Parker Hannafin case to support its claim, and referred to by the General Court in various parts of the first instance judgment (judgment of 17 May 2013, case T-146/09, Parker ITR and Parker Hannafin v. Commission, EU:T:2013:258, §§75, 100–101, 115, 120), the judgment is cited but not discussed in any way in the A.G. Opinion, and even disappears from the text of the appeal judgment issued by the CJEU.170 Hoechst, cit., §96, emphasis added. See also Opinion ETI, cit., §§82–83.171 See also Opinion Skanka, cit., §78 (“one cannot pick the pockets of a naked man”) and Versalis C-93/13P, cit., referring to the “risk that the original operator of the [infringement] business within the [infringer] group … would become an ‘empty shell’ following the internal restructuring of that group and that the penalty imposed on it under antitrust law would be ineffective in that case” (§55).172 See, in this respect, Hoechst, cit., §64. See also judgment of the General Court of 13 December 2018, case T-827/14, Deutsche Telekom AG v. Commission, EU:T:2018:930, §505 (translation of the authors) and Siemens, cit., §50.173 Siemens, cit., §50.174 Sumal, cit., §63, emphasis added.175 Judgment of the GC of 2 June 2016, joined cases T-426/10 to T 429/10, T 438/12 to T 441/12, Moreda-Riviere Trefilerías and others v. Commission, EU:T:2016:335, confirmed by the CJEU, judgment of 26 October 2017, joined cases C-457/16 P and C-459/16 P to C 461/16 P, Moreda-Riviere Trefilerías and others v. Commission, EU:C:2017:819.176 Moreda, General Court, cit., §318, emphasis added (authors’ translation).177 Idem, §337.178 Idem, §338. This statement had been explicitly confirmed by the CJEU in the appeal (Moreda, CJEU, cit., §121).179 Prysmian, cit., §§7 and 88, and Prysmian GC, cit., §§121, 125–126, 131.180 Idem, §91, emphasis added.181 Prysmian GC, cit., §131.182 Prysmian, cit., §19.183 Prysmian GC, cit., §138. Point confirmed by CJEU in appeal (Prysmian, cit., §§83–90, also acknowledging that the application of the economic continuity principles in the case at issue was “consistent with the case-law of the Court of Justice”, §114). See also judgment of General Court of 29 February 2016, case T-267/12, Deutsche Bahn and others v. Commission, EU:T:2016:110, §129.184 Judgment of the General Court of 6 December 2018, case T-531/15, Coveris Rigid France v. Commission, EU:T:2018:885, §§24–25, see also §39.185 Coveris, cit., §§40, 44 and 49, emphasis added.186 Idem, §§50–51, emphasis added.187 Pursuant to A.G. Wahl, liability is to be seen as “attached to assets, rather than to a particular legal personality” (Opinion Skanska, cit., §80).188 Opinion ETI, cit., §89, emphasis added.189 Idem, §106, emphasis added.190 See, in this respect, opinion Skanska, cit., §§28 and 77, pursuant to which the compensation of antitrust damages must aim at the “full compensation for any harm allegedly suffered on account of an infringement of EU competition law” by “any individual” (emphasis added).191 Schunke, Walter, cit., 15. Indeed, as explained above (see Section 3.1, lit. c), so long as the seller exists and keeps being active and provided that there are no links (organizational, structural and economic) between the parties, no direct liability will, in principle, be passed onto the acquirer.192 In any case, at least under Italian law, the applicability of such a clause is expressly forbidden in case of wilfully wrongful conduct by the seller (i.e. if the seller, being aware of the existence of a competition law infringement, has wilfully omitted to disclose it to the buyer).193 This latter question is particularly relevant considering that courts/competition agencies might request the buyer to disclose documents related to the competition law infringement that the buyer, in its capacity as mere economic successor of the infringer, simply does not have. See Botta, cit., 183.194 This is so, provided that the subsidiary has not been “purely and simply absorbed by the [acquirer] but continued their activities as its subsidiary” (Judgment of the Court of Justice of 16 November 2000, case C-279/98P, Cascades v. Commission, EU:C:2000:626, §§78–79).195 YKK, cit., §§59–63.196 Needless to say, antitrust audits should be stricter if the acquirer already knows that the target had violated competition laws in the past or had any “pre-existing antitrust problem[s]”, see V Fasoula, ‘Extending the Presumption of Decisive Influence to Impute Parental Liability to Private Equity Firms for the Anticompetitive Conduct of Portfolio Companies’ 2021 (1) NJEL 12.197 Companies should bear in mind that the concept of undertaking applies also with respect to leniency, and, therefore, a leniency application concerns only the specific economic unit at issue. This means, more specifically, that a leniency application filed by the acquirer with respect to the transferred business will not cover also the previous owner of the same business, i.e. seller, which must jointly proceed to the filing (see, in this respect, Hoechst, cit., §75).198 See also Fasoula, cit., 12.199 Cortese, cit., 76–77, referring to, e.g. ICI, cit.. See also Opinion Sumal, cit., §27.200 Cortese, cit., 77.201 Judgment of the Court of Justice of 25 October 1983, case 107/82, Allgemeine Elektrizitäts-Gesellschaft AEG-Telefunken AG v. Commission, [1983] ECR 3151.202 Cortese, cit., 78. AEG, cit., §§50–52.203 Commission Decision of in case IV/33.833 – Cartonboard, 94/601/EC [1994] OJ L243/1, §143.204 Jones, cit., 327.205 Idem, 305; see also 318–319.206 Idem, 332.207 See, in this respect, the opinion A.G. Rantos in Unilever, whereby the A.G. ruled out a ‘variable meaning’ of the concept of undertaking based on the contingent needs of the effectiveness of competition law, given that “from the point of view of foreseeability and legal certainty, it seems difficult to justify the existence of such 'variability' in the notion of 'economic unity', which, moreover, finds no support in the current case law. Moreover, … the decisive criterion lies in the existence of a 'unity of conduct on the market', a concept that should be common, both as regards the applicability of Article 101 TFEU and the imputation of conduct” (Opinion Unilever, cit., §§31–33, translation of the authors). See also W Wils, ‘The Undertaking as Subject of EC Competition Law and the Imputation of Infringements to Natural or Legal Persons’ (2000) 25(2) ELR 99 and 106; Jones, cit., 319–24. See also the A.G. Wahl in Skanska: “a solution whereby the interpretation of ‘undertaking’ would be different depending on the mechanism employed to enforce EU competition law would simply be untenable” (Opinion Skanska, cit., §80).208 See, e.g. the “concept of an undertaking, as an economic unit, is perfectly identified and foreseeable” (Bolloré, cit., §48) and A.G. Kokott, pursuant to whom the CJEU has “always been intent on an absolutely uniform interpretation of the concept of an undertaking in all areas of competition law” (Opinion Stichting, cit., §50).209 B Freund, ‘Heralds of Change: In the Aftermath of Skanska (C-724/17) and Sumal (C-882/19)’ (2022) 53 IIC 261.210 Judgment of the General Court of 27 June 2012, case T-167/08, Microsoft v. Commission, EU:T:2012:323, §91.