In a recently published opinion in a Finnish cartel damage case, Advocate General (AG) Wahl discussed the important issue of the relationship between European competition law and private liability law.
According to AG Wahl, liability for a breach of European competition law follows directly from European competition law (Artt. 101 and 102 TFEU) for both public and private enforcement. The function of both types of enforcement is to secure the full effectiveness of European competition law, albeit through different mechanisms.
The concept of ‘undertaking’ in Art. 101 TFEU and the related principle of economic continuity must therefore also be consistently applied in private cartel damage proceedings . Therefore, if a party is ordered to pay a penalty payment by the Commission, its private liability is a given. It also follows that private law liability for an infringement of competition law can (ipso facto) be attributed to all those ordered to pay a penalty payment and/or all persons (or legal persons) that constitute the economic unit (the undertaking) that has committed the infringement.