TY - JOUR

T1 - Vicarious Liability in Groups of Companies and in Supply Chains - Is Competition Law Leading the Way?

AU - Ulfbeck, Vibe Garf

PY - 2019

Y1 - 2019

N2 - The article discusses the concept of vicarious liability in the area of competition law. It argues that this concept is to some extent embedded in the conceptof the undertaking under competition law with the consequence that parent companies – under certain conditions – can be held liable for competition law infringements committed by subsidiaries. The liability can be termed “vicarious” because itis imposed regardless of whether the parent company was involved in or ought tohave had any knowledge of the competition law infringements committed by thesubsidiary. Whereas such liability has until recently only been imposed for administrative fines, the Skanska decision changes this. Following this decision it must beassumed that parent companies can also be held vicariously liable for civil liabilityincurred by a subsidiary. It is pointed out that it is a separate question whether theAkzo-presumption rule, established with regard to the imposition of fines for competition law infringements, can also be applied in a pure civil liability case concerningparental liability. Next, the article discusses whether the results reached in the area ofcompetition law can be transferred to other areas of the law. In this regard, the articleanalyses recent case law with regard to parental liability for workers’ injuries and environmental damage and compares these areas of the law to competition law. Finally,the article discusses whether the concept of the undertaking can be extended to applyalso in situations where companies are not tied by ownership but by contract. In thisregard the article focuses on the (possibly) emerging concept of supply chain liability.

AB - The article discusses the concept of vicarious liability in the area of competition law. It argues that this concept is to some extent embedded in the conceptof the undertaking under competition law with the consequence that parent companies – under certain conditions – can be held liable for competition law infringements committed by subsidiaries. The liability can be termed “vicarious” because itis imposed regardless of whether the parent company was involved in or ought tohave had any knowledge of the competition law infringements committed by thesubsidiary. Whereas such liability has until recently only been imposed for administrative fines, the Skanska decision changes this. Following this decision it must beassumed that parent companies can also be held vicariously liable for civil liabilityincurred by a subsidiary. It is pointed out that it is a separate question whether theAkzo-presumption rule, established with regard to the imposition of fines for competition law infringements, can also be applied in a pure civil liability case concerningparental liability. Next, the article discusses whether the results reached in the area ofcompetition law can be transferred to other areas of the law. In this regard, the articleanalyses recent case law with regard to parental liability for workers’ injuries and environmental damage and compares these areas of the law to competition law. Finally,the article discusses whether the concept of the undertaking can be extended to applyalso in situations where companies are not tied by ownership but by contract. In thisregard the article focuses on the (possibly) emerging concept of supply chain liability.

U2 - 10.7559/mclawreview.2019.2361

DO - 10.7559/mclawreview.2019.2361

M3 - Journal article

VL - 3

SP - 107

EP - 129

JO - Market and Competition Law Review

JF - Market and Competition Law Review

SN - 2184-0008

IS - 2

ER -