The same reasoning applies to determining the category of persons entitled to compensation for infringements of Article 102 TFEU (see judgment in Cogeco v Sport TV Portugal (C-637/17, EU:C:2019:263, paragraph 38 et seq.); Wolfgang Wurmnest, “Liability of `undertakings` in actions for damages for infringement of Articles 101, 102 TFEU: Skanska” (2020) 57(3) Common Market Law Review 915 et seq., 924. The CJEU seems to have shared a similar understanding in a slightly different constellation. In Jungbunzlauer, liability for an infringement committed by a subsidiary (1) of a holding company which was attributed to another subsidiary (2) within the same holding company. In the present case, the abovementioned rebuttable presumption of decisive influence could not be inferred, since the subsidiary clearly did not control its sister financially. However, the fact that all the activities of the group management were delegated by the holding company to (2) is proof that (1) carried out the instructions given by (2) and therefore did not decide independently on its own presence on the market. This shows that liability for an infringement to a subsidiary within a group of companies can be attributed to another subsidiary, since one subsidiary had decisive influence over the other and both were therefore part of a single company. But again, liability seems to be compatible with the “parental responsibility” mentioned above, since one company has a decisive influence over another. This has raised doubts as to whether the concept of commitment was really justified in attributing liability to legal persons (see, in particular, Odudu & D. Bailey).

It appeared that liability was well founded either on the fact that a legal person was directly involved in the infringement committed by an undertaking or on the fact that it exercised decisive influence over the infringing legal person, suggesting that it was (at least likely) indirectly involved in that infringement. Although the Court has already held that attribution of liability is not a form of strict liability, attribution of liability within an enterprise has been regarded in legal literature (in particular private law) as a rule of de facto strict liability of the legal person exercising decisive influence (usually the parent company). Here is a typical legal analysis for a group of companies that wanted to understand whether their activity fell under the competition rules: An individual may also form a company within the meaning of competition law. Gerechtshof Arbhem-Leeuwarden, 26 November 2019, TenneT v Alstom NL:GHARL:2019:10165, consid. 2.5; the Supreme Court applied the concept of private enforcement even before the transposition of the Damages Directive, see Oberster Gerichtshof (AUT), 2 August 2012, 4 Ob 46/12m consid. 7.4. See Commission notice on the concept of undertakings concerned within the meaning of Regulation (EEC) No 2. Council 4064/89 on the control of concentrations between undertakings Although there is no doubt that the concept of undertaking is valid in `Skanska` situations in the context of private enforcement, it is currently under consideration whether this concept can also be applied beyond the present case. In other words, it is not clear whether the notion of an undertaking defines liability in the whole area of private performance or whether it can only be applied in the case of economic continuity.15 However, following an internal restructuring that created a parent-subsidiary relationship, there was a significant overlap between management bodies and coordinated operational management and they were therefore classified as a single undertaking.

Please also note that NCAs are required to apply the concept of engagement in the context of public enforcement under Directive ECR+ of Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 in order to enable Member States` competition authorities to adopt more effective enforcement mechanisms and to ensure the proper functioning of the internal market [2019] OJ L 2018. L 11/3 et seq.; in a general context, see also Heinichen and Schmidt (no. 74), text, note 32. The GVH caught a large fish among national fish wholesalers* 23. July 2021, Budapest – The Hungarian Competition Authority (GVH) has opened an investigation against one of the largest national companies in the wholesale of fishery products for (…) It has been argued that the binding effect of a Commission decision prevents national courts from holding liable a group company which was part of the infringing undertaking but was not an addressee of the decision.