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Comparing Parent Company Liability in EU and US Competition Law

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Comparing Parent Company Liability in EU and US Competition Law Comparing Parent Company Liability in EU and US Competition Law * Carsten KOENIG It is a well-established principle of EU competition law that parent companies can be fined for antitrust infringements by their subsidiaries. Under the new EU Directive on Antitrust Damages Actions, parent company liability is likely to be extended to private antitrust litigation. In the United States, in contrast, no fines are imposed on parent companies unless they are directly involved in an antitrust infringement. Moreover, US courts are reluctant to hold parent companies directly or indirectly liable in private damages suits. Against this background, I explore in this article the striking difference between EU and US competition law with regard to parent company liability. I show that one of the main purposes of holding parent companies liable in EU competition law is to solve an underdeterrence problem that occurs when subsidiaries lack sufficient assets to pay for fines or damages. I argue that the same function is fulfilled in US antitrust law by other enforcement instruments, in particular, the individual liability of managers and employees. On this basis, I conclude that primarily the existence of these functional substitutes explains why a need for parent company liability has not arisen in US antitrust law. 1 INTRODUCTION Following its landmark decision in Imperial Chemical Industries v. Commission (1972),1 the European Court of Justice holds parent companies liable for antitrust infringements by their subsidiaries under the ‘single economic entity doctrine’.Onthisbasis,the European Commission, as the primary public enforcer of EU competition law, frequently imposes fines on parent companies, even if they are not directly involved in their subsidiaries’ antitrust infringements. Furthermore, as explained in more detail below, the single economic entity doctrine will probably be extended to private antitrust suits under the new EU Directive on Antitrust Damages Actions,2 which the twenty-eight EU Member States are currently transposing into their national laws. * Postdoctoral Researcher, University of Cologne, Germany. Email: [email protected]. I wish to thank Jane Bestor, Louis Kaplow, Reinier Kraakman, Catarina Marvão, Malcolm Rogge, Steven Shavell, Anna Tzanaki and the participants of the 33rd Annual Conference of the European Association of Law and Economics (EALE), as well as one anonymous referee for valuable comments, and the Summer Academic Fellowship Program of Harvard Law School for financial support. 1 Imperial Chemical Industries v. Commission, 48/69, ECLI:EU:C:1972:70. 2 Directive 2014/104/EU of the European Parliament and of the Council of 26 Nov. 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, OJ 2014 L 349/1. Koenig, Carsten. ‘Comparing Parent Company Liability in EU and US Competition Law’. World Competition 41, no. 1 (2018): 69–100. © 2018 Kluwer Law International BV, The Netherlands 70 WORLD COMPETITION In the United States, in contrast, parent company liability for antitrust infringements by subsidiaries is basically unknown. Fines are not imposed on parent companies unless they are directly involved in an antitrust infringement. US courts are keen to uphold the principle of limited shareholder liability and usuallyrejectclaimsthatareraisedagainstparentcompaniesalsoinprivate antitrust suits. Only on very rare occasions have parent companies been held liable in antitrust cases based upon corporate law doctrines of piercing the corporate veil.3 As a general rule, however, parent company liability simply does not exist in US antitrust law. Against this background, I explore in this article the striking difference between EU and US competition law with regard to parent company liability. Based on a functional economic analysis, I arrive at the conclusion that parent company liability is important for effectively deterring antitrust infringements in the European Union, but that parent company liability may not be necessary for achieving the same purpose in the United States. I explain this disparity as arising from differences in the respective enforcement regimes, most importantly the greater availability of criminal penalties for managers and employees in the United States.4 I demonstrate that there is a significant overlap between the functions served by parent company liability in EU competition law and individual criminal liability in US antitrust law. They both aim, inter alia, at ensuring effective deterrence where the primary target of liability – the corporation in the course of whose business the antitrust violation was committed – is underdeterred. The article consists of four substantive parts. In section 2, I introduce doctrine and case law dealing with parent company liability for antitrust infringements by subsidiaries in the European Union and the United States. In section 3, I compare the antitrust enforcement regimes of both the European Union and the United States. The objective is to generate awareness for important differences between the two legal regimes that are relevant to the subsequent analysis. In section 4, I summarize the efficiency justifications for parent company liability. Most notably, I show that parent company liability can be justified where the subsidiary itself is insufficiently deterred, in particular, because it lacks sufficient assets to pay a fine or 3 Far more frequently, however, have courts denied to pierce the corporate veil in antitrust cases, see e.g. National Gear & Piston, Inc. v. Cummins Power Systems, LLC, 975 F.Supp.2d 392 (2013); In re Digital Music Antitrust Litigation, 812 F.Supp.2d 390 (2011); In re Currency Conversion Fee Antitrust Litigation, 265 F.Supp.2d 385, 425–428 (2003); see also In re Vitamin C Antitrust Litigation, Not reported in F. Supp.2d, 2013 WL 635740. 4 For a general discussion on individual criminal liability see e.g. Parker Beaton-Wells, Justifying Criminal Sanctions for Cartel Conduct: A Hard Case, 1 J. Antitrust Enforcement 198 (2013); Peter Whelan, The Criminalization of European Cartel Enforcement (OUP 2014), passim; Wouter Wils, Efficiency and Justice in European Antitrust Enforcement Ch. 6 (Hart 2008); and infra,s.5. COMPARING PARENT COMPANY LIABILITY 71 damages. Holding the parent company vicariously liable is one way to overcome this obstacle and restore effective deterrence. In section 5, I elaborate my claim that parent company liability has not evolved in US antitrust law because of the existence of other enforcement instru- ments that serve as functional substitutes, such as the individual liability of man- agers and employees. I show that both parent company liability and individual liability help to maintain incentives for efficient behaviour where the primary target of liability is underdeterred. On the other hand, I illustrate that both enforcement instruments differ in important respects. Individual criminal liability often leads to higher enforcement costs, but has the additional benefit of taking care of agency problems. Parent company liability, in contrast, is relatively inex- pensive, but it can naturally only contribute to deterrence where a parent company actually exists. This will often not be the case, especially in the United States, where corporate group structures are less common than in Europe. 2 PARENT COMPANY LIABILITY DOCTRINE AND CASE LAW I begin by outlining the law on parent company liability for antitrust infringements by subsidiaries in both the European Union and the United States. The single economic entity doctrine is today deeply engrained in EU competition law. Interestingly, though, the single economic entity doctrine has never been applied beyond the antitrust context, e.g. in other tort-related areas such as products liability or environmental liability law.5 One could imagine parent companies to be liable for torts committed by their subsidiaries under tort law principles of vicarious liability,6 but so far this has not been recognized in EU or national doctrine.7 Thus, in areas other than competition law, parent companies will only 5 See e.g. Lucas Bergkamp, The Environmental Liability Directive and Liability of Parent Companies for Damage Caused by Their Subsidiaries (‘Enterprise Liability’), 13(5) Eur. Co. L. 183 (2016); Karsten Engsig Sørensen, Groups of Companies in the Case Law of the Court of Justice of the European Union, 27 Eur. Bus. L. Rev. 393 (2016). The fact that no concept similar to the single economic entity doctrine is applied in other fields of EU law such as products liability (Council Directive 85/374/EEC of 25 July 1985, OJ 1985 L 210/29) and environmental liability (Directive 2004/35/EC of 21 Apr. 2004, OJ 2004 L 143/56) shows that the different approaches to parent company liability cannot be explained by the supra-national nature of EU law alone. The European Court of Justice may have tried to avoid distinctly national concepts when it first applied a functional approach to the concept of an under- taking, but this cannot explain why the Court considers it necessary to impute liability to parent companies, and why it does so only in competition law cases. 6 See e.g. Phillip Morgan, Vicarious Liability for Group Companies: The Final Frontier of Vicarious Liability?, 31 Prof. Negl. 276 (2015) (‘Vicarious liability for companies takes the fiction of personality to its logical conclusion, treating them as a person, whilst fully respecting
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