Christian Kersting ‘Liability of sister companies and subsidiaries in European competition law’ (2020) European Competition Law Review 41 125

Traditionally, tort liability – which governs private competition enforcement – attaches to specific legal entities. However, liability for a competition infringement under European law attaches to undertakings, i.e. economic units that may comprise multiple legal entities. Increasingly, jurisdictions have relied on this latter approach also for assigning private liability for competition damages, and a similar approach even seems to have been endorsed by the European Court of Justice in Skanska. As a result, questions regarding which legal entities are liable for competition damages are increasingly coming to the fore, particularly as the answer is often crucial to determine whether certain courts (and countries) have jurisdiction over the claim. Under EU competition law, an undertaking encompasses every entity engaged in an economic activity. An undertaking may consist of several legally independent entities, provided that together they form an economic unit. Within the scope of this economic unit, an innocent parent company is generally liable for the competition infringements of its subsidiaries….

Andrew Leitch ‘Skanska: are jurisdiction challenges now an impossible undertaking?’ (2019) Competition Law Journal 18(3) 97

This paper is available here. Damages claims which follow on from European Commission (“Commission”) cartel decisions are, by their very nature, multinational in scope, with addressees of a Commission decision often domiciled across various EU Member States and even further afield. As multiple national markets are often affected by the anticompetitive conduct, potential claimants are also often domiciled across the EU and beyond. This can present potential claimants with a choice as to the jurisdiction in which they wish to pursue their damages claims, with the United Kingdom, Germany and the Netherlands emerging as the most popular jurisdictions. However, seising jurisdiction in the national court of a desired Member State can require the claim to be pursued against an anchor defendant that is not an addressee of a Commission decision. The ECJ’s Skanska judgment relieves claimants from the burden of having to establish that the non-addressee defendant participated in, or implemented, the cartel in order to sustain a claim against…