On 6 October 2021, the European Court of Justice (ECJ) issued its much-awaited judgment in Sumal v Mercedes Benz Trucks Espana,(1) one of the most important cases in private enforcement of competition law in recent years in Europe. The ECJ ruled on the possibility for a company that has been harmed by an infringement of article 101 of the Treaty on the Functioning of the European Union (TFEU) to bring an action for damages against the subsidiary of a company responsible for the infringement.


On 19 July 2016, the European Commission imposed fines of €2.93 billion on the truck manufacturers Daimler AG, MAN, DAF, Volvo/Renault, Scania and Iveco for anti-competitive price agreements. Daimler alone had to pay €1 billion in fines, while the whistle blower MAN received full immunity for revealing the existence of the cartel, thereby avoiding a fine of around €1.2 billion. Scania decided not to settle at that time and the Commission fined it €880 million on 27 September 2017.

Following this decision, the company Sumal brought an action for damages against its contractual partner Mercedes Benz Trucks Espana (MBTE), a Spanish subsidiary of the German truck maker Daimler, before the Spanish courts. Due to the previously divergent decisions of the Spanish courts on the issue of passive liability, the proceedings were stayed and the question of whether the uninvolved subsidiary was also jointly and severally liable for the parent company's antitrust violation was referred to the ECJ for a preliminary ruling.


In its judgment, the ECJ sets out the conditions under which victims of an anti-competitive practice by a company penalised by the Commission are entitled to invoke the civil liability of the subsidiaries of the penalised company, which are not addressed in the Commission's decision, by way of an action for damages before the national courts.

First, the ECJ ruled again that in accordance with settled case law, any person is entitled to claim compensation from "undertakings" that have participated in a cartel or practices prohibited under article 101 of the TFEU for the harm caused by those anti-competitive practices.

Second, even if such actions for damages are brought before the national courts, the determination of which entity is required to provide compensation for the harm caused is governed directly by EU law.

Third, actions for damages, like the enforcement of antitrust rules by public authorities, are an integral part of the system for enforcing the EU competition rules. Therefore, the term "undertaking" within the meaning of article 101 of the TFEU does not need to be interpreted differently in the context of the imposition of fines on "undertakings" by the Commission (public enforcement) and in damages actions against these "undertakings" before national courts (private enforcement).

Fourth, the concept of such an "undertaking", within the meaning of article 101 of the TFEU, covers any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed, and thus designates an economic unit even if in law that unit consists of several natural or legal persons.

In case a company belonging to such an economic unit has infringed competition law in a way that the "undertaking" of which it is part has committed an infringement of that provision, the concept of an "undertaking" – and, through it, that of the "economic unit" – gives rise to the joint and several liability across the entities of which the economic unit is made up at the time that the infringement was committed.

In that regard, the concept of an "undertaking", used in European competition law is a functional concept, as the economic unit of which it is constituted must be identified as having regard to the subject matter of the agreement at issue. Therefore, where the existence of an infringement of competition law has been established as regards a parent company, it is possible for the victim to seek to engage the civil liability of a subsidiary of that parent company. To do so, the victim must prove that – having regard to, first, the economic, organisational and legal links that unite the two legal entities and, second, the existence of a specific link between the economic activity of that subsidiary and the subject matter of the infringement for which the parent company was held to be responsible – that subsidiary, together with its parent company, constituted an economic unit.

In the circumstances at issue in this case, in order to bring an action for damages against MBTE as a subsidiary of Daimler, Sumal must establish that the anti-competitive agreement concluded by Daimler concerns the same products as those marketed by MBTE. Sumal will have to show that it is precisely the economic unit of which MBTE, together with its parent company Daimler, forms part that constitutes the undertaking which in fact committed the competition infringement found by the Commission.

Moreover, the ECJ stated that the possibility for a national court of making a finding of the subsidiary company's liability for the harm caused is not excluded merely because the Commission has not adopted any decision or that the decision in which it found that there was an infringement did not impose a penalty on that company.

Therefore, article 101(1) of the TFEU precludes a national law which provides for the possibility of imputing liability for one company's conduct to another company only in circumstances where the second company controls the first company.


The ECJ has expressed its opinion on questions of antitrust damages in a large number of judgments and has steadily advanced its accentuation under European law. What started in a group dimension with the Skanska decision in March 2019(2) was now further specified by the Sumal decision. This development further strengthens private enforcement in favour of injured parties of a cartel.

Through the Sumal decision, the possibilities of injured parties to enforce their cartel damage claims against the cartel participants have been improved even further. The concurrence of the concept of an undertaking and the joint and several liability of the "undertaking" under article 101 of the TFEU between public and private enforcement is the consequence of the case law of the ECJ strengthening private enforcement. This means that a long-standing practice in Spanish, German and other national civil law systems has been overtaken by European law – namely, that only the respective legal entity named in the penalty decision notice is liable.

According to the Volvo decision of the ECJ dated 15 July 2021,(3) an aggrieved company may also sue the cartelists at its place of business. In this respect, foreign cartel victims can sue foreign subsidiaries of, for example, Spanish, French or German cartelists without having to deal with the burdensome foreign services and translations abroad.

However, the ECJ also clarified that the possibility for the victim of anticompetitive conduct to invoke, in the context of an action for damages, the liability of a subsidiary instead of the parent company cannot automatically exist against every subsidiary of a parent company which is the subject of a Commission decision penalising conduct constituting an infringement. This is because the same parent company may be part of several economic entities consisting, depending on the economic activity concerned, of itself and of different combinations of its subsidiaries, all belonging to one and the same group of undertakings. This means that if the parent company was fined for cartel conduct in the manufacturing and sales of trucks, a wholly owned subsidiary of this parent, only active in aerospace and defence, for instance, would not be part of such economic entity and could not be sued accordingly.

For further information on this topic please contact Sebastian Jungermann at Arnecke Sibeth Dabelstein by telephone (+49 69 979885 465) or email ([email protected]). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.


(1) C-882/19.

(2) C-724/17.

(3) C-30/20.