In two judgments of April 10, 2014, the Court of Justice of the European Union (CJEU) provided significant clarifications on the concept and consequences of joint liability for the commission of anti-competitive practices.
In the case in question, the Commission had imposed fines in 2007 totaling around €750 million on twenty companies for their participation in a cartel on the gas insulated switchgear market.
In the first judgment, on the appeal filed by Siemens, the CJEU recalled the limits of the Commission’s powers. It can order a parent company to pay jointly a fine imposed on its subsidiary, as the parent company controlled the subsidiary at the time the offence was committed, but its role ends there. It is not up to the Commission to determine the shares to be paid by the jointly liable debtors; this is the role of national courts, in application of their national laws.
In a second judgment, on the appeal filed by Areva, the CJEU contradicted the Court and the Commission by highlighting the fact that, when a subsidiary is jointly ordered to pay a fine along with each of the parent companies with which it successively formed a distinct company during the period of infringement, the sum of the fine jointly payable must be determined separately for each of the two companies involved (i.e. the subsidiary and the first parent company on the one hand and the subsidiary and the second parent company which succeeded the first on the other hand). In concrete terms, the sum of the fine payable by each of the two companies is calculated based on the seriousness of the infringement which they are individually accused of committing and the period of infringement. The total sum which the two parent companies are ordered to pay cannot exceed the sum which the subsidiary is ordered to pay. Thus, the principles of legal certainty and individualization of sanctions are better respected as the two parent companies never formed part of the same economic undertaking.
Ultimately, these judgments are to be praised as they recall in particular that joint liability cannot be used by the Commission as a means of ruling based on appropriateness. In the second case, joint liability allowed the Commission to make a company bear the insolvency risks of another company.