Carsten Koenig ‘Comparing Parent Company Liability in EU and US Competition Law’ (2018) World Competition 41(1) 69

This paper, available here , contrasts how law parent companies can be fined for antitrust infringements by their subsidiaries under EU competition law, while courts in the US are reluctant to hold parent companies directly or indirectly liable in private damages suits. The author argues that one of the main reasons why EU competition law holds parent companies liable is to solve an under-deterrence problem that occurs when subsidiaries lack sufficient assets to pay fines or damages. US antitrust law uses other enforcement instruments to address under-deterrence by, in particular the individual liability of managers and employees. The article consists of four substantive parts: In section 2, the paper reviews the case law and literature on parent company liability for antitrust infringements by subsidiaries in the European Union and the United States. In the EU, the single economic entity doctrine is deeply ingrained in competition law. The European court interprets the concept of ‘undertaking’ in a functional way: it is the economic entity…

Eric Barbier de La Serre and Eileen Lagathu ‘The Law on Fines Imposed in EU Competition Proceedings’ (2018) Journal of European Competition Law & Practice 9(7) 459

This paper, available here, provides a brief overview of a number of important issues regarding fining in Europe up to 2018. There is no specific argument being made, just an overview of the state of play at the time this paper was published. Section I discusses how the statute of limitations affects fine amounts. The Commission’s power to impose fines for substantive infringements is subject to a 5-year limitation period from the date the infringement was committed – or, in the case of a continuing or repeated infringement, from the date when the infringement ceased – unless formal steps to investigate or prosecute the infringement have been taken by a competition authority during that period. Each interruption produces effects erga omnes, in so far as the limitation period starts running afresh in respect of all undertakings that participated in the infringement. Furthermore, the fact that the conduct of subsidiaries falls outside the scope of the statute of limitation does not preclude proceedings from…

Javier Garcia-Verdugo, Carlos Merino Troncoso and Lorena Gomez Cruz ‘An Economic Assessment of Antitrust Fines in Spain’ (2018) World Competition Law and Economics Review 41(3) 335

This article, available here, tries to quantify the deterrent power of fines imposed by the Spanish competition authority from 2011 to 2015. Despite being authored by senior staff at the Spanish competition authority, the paper concludes that most of the fines imposed by the Spanish competition authority during this period were under deterrent. The argument is structured as follows: Section II sets out how to quantify cartel gains. A deterrent optimal fine can be defined as a fine that deters a company from participating in a cartel. Such an outcome is achieved when there is no expected net gain from participating in the cartel in the first place, i.e. when the expected illicit gain of entering into a cartel is lower than the expected loss from being sanctioned for cartel participation. Therefore, the reference value for an optimal fine should be determined by reference to an estimate of the illicit gain (also known as excess profit) flowing from cartel membership. This illicit…