Supervisors info:
ΣΟΥΦΛΕΡΟΣ ΗΛΙΑΣ, Καθηγητής, Νομική Σχολή, ΕΚΠΑ
ΤΖΟΥΓΑΝΑΤΟΣ ΔΗΜΗΤΡΙΟΣ, Καθηγητής, Νομική Σχολή, ΕΚΠΑ
ΜΙΚΡΟΥΛΕΑ ΑΛΕΞΑΝΔΡΑ, Αναπληρώτρια Καθηγήτρια, ΕΚΠΑ
Summary:
The subject of this dissertation is to investigate the matter of liability of unlawful conduct of the subsidiary company towards the parent company in competition law (parental liability). The study of the problem starts by trying to determine the appropriate (corporate) entity for the attribution of liability within the context of the group of companies and to this end, it is necessary to examine the concepts of "undertaking/entreprise" and of "single economic entity", as formed in EU law. This examination is necessary in order to see how the theoretical difficulties arising from the principle of the separation and limitation of liability can be overcome, stemming from the concept of legal personality and applying to the context of the group of companies as well, in which prominent role is played by the factors of control and dependence of the subsidiary on the parent company, although they constitute separate legal entities. Next, the various legal bases that have been expressed in private law for the regulation of the relevant problem of attributing liability to parent company vis-à-vis the counterparties of its subsidiary are examined, in order to determine whether the relevant statutory grounds for liability (lifting of the corporate veil, negotiorum gestio, enlargement of the subjective limits of the contract, tortious liability, liability for misuse of organisational freedom, liability from the acts of de facto administration bodies, contractual netting clause, thin funding of the subsidiary company) can constitute appropriate scientific tools for the attribution of liability to the parent company on the ground of violation of competition law on behalf of its subsidiary. In this context, it is useful to provide comparative data from the regulation of the relevant liability in foreign jurisdictions (german law, common law and american law), in order to highlight any affiliations, but also variations from addressing the issue in the context of EU law. A large part of this matter is examined from the point of view of EU law, since both the principle of personal liability and the principle of the single economic entity have undergone thorough processing through the case law of EU courts, so as to have two basic criteria for attributing liability for unlawful conduct of the subsidiary company towards the parent company in competition law crystallised. Based on these criteria (principle of autonomous conduct on the market and principle of decisive influence of the parent company to the subsidiary company), it is assumed that the existing economic, organisational and legal relationships between these two legal entities may suggest that the parent company and its wholly owned subsidiary form a single economic entity, and therefore a single undertaking, so the parent company may incur liability for the unlawful conduct of its subsidiary, because of the decisive influence exercised over its subsidiary, which allowed it to determine the latter’s conduct in the market. Further, several individual cases of assessment of the above criteria for the attribution of the unlawful conduct of the subsidiary company to the parent company in competition law are presented, and in particular in the case of a subsidiary controlled by (nearly) 100% by the parent company, a subsidiary company controlled by majority, a financial holding company and a common subsidiary with equal shares (joint venture), as well as the non-fully controlled subsidiary. Special emphasis is given to the presumption of liability of the parent company for the unlawful conduct of the subsidiary company, as it has been formed within the context of EU law, through the Commission's practice and the case-law of EU Courts. Lastly, the most critical practical dimensions of the aspect under debate are examined: Starting point is the identification of key issues that arise in the context of the acceptance of joint liability of the parent and subsidiary companies, as well as the consequences of the attribution of liability to the parent company from infringement on behalf of the subsidiary in the event of transfer or succession of the undertaking. Next the manner of measurement of the fines imposed in the event of companies constituting a single undertaking is examined, through the prism of the provisions of Regulation 1/2003 at first and Greek Law 3959/2011 on a supplementary basis, with the endpoint being a first assessment of the importance of the attribution of such liability (parental liability) in the context of civil liability in the event of actions for compensation from infringement of competition law under Directive 2014/104/EU.
