AG Wahl opines that the principle of economic continuity also applies when the EU cartel prohibition is privately enforced

On 6 February 2019, AG Wahl delivered an opinion in case C-724/17 (link). In his opinion, Wahl advises the European Court of Justice (ECJ) to rule that the principle of economic continuity also applies when a private party claims damages in relation to a cartel so that such party may seek compensation from a company that has continued the economic activity of a cartel participant.

Should the ECJ follow the opinion, such approach may have a big impact on the liability of companies that have continued the economic activity of a cartel participant.

In the case at hand, three companies were involved in a Finnish cartel that operated in the asphalt market between 1994 and 2002. However, these companies have since been dissolved in voluntary liquidation procedures and their sole shareholders have acquired their subsidiaries’ assets and continued their economic activities. The referring Finnish court asks the ECJ to answer the question whether or not these shareholders may be held liable for damages caused by these subsidiaries.

In the opinion, AG Wahl reasons that actions for antitrust damages form an integral part of the enforcement of EU competition law. AG Wahl deems it untenable that the concept of ‘undertaking’ would be interpreted in a more restrictive manner in private enforcement proceedings as in public enforcement proceedings. As such, AG Wahl advocates that ‘undertaking’ should be interpreted the same as in public enforcement proceedings, which also entails – in the case at hand – that companies that have continued the economic activity of a cartel participant are liable in private enforcement proceedings.