Parental Liability in EU Competition Law: A Legitimacy-Focused Approach

In enforcing EU competition law, the Commission employs a unique doctrine of parental antitrust liability: it imposes fines on the parent company of an infringing subsidiary in cases where the parent exercises decisive influence over the subsidiary's commercial policy. Critics of this contentious aspect of EU competition law believe that the doctrine is unfair, ineffective, obscure, disproportionate, contrary to due process, and based upon a dubious, if not extremely flimsy, justificatory foundation. Such criticism raises serious and unanswered questions about the legitimacy of the Commission's efforts to enforce competition law. Parental Liability in EU Competition Law: A Legitimacy-Focused Approach is the first monograph to be dedicated to this controversial topic. Written by Professor Peter Whelan, the book contends that, although the general concept of parental liability can be justified in principle, the current EU-level doctrine of parental antitrust liability in fact suffers from a distinct and problematic lack of legitimacy. More specifically, the said doctrine displays significant deficiencies with respect to effectiveness, fairness, and legality. Given this undesirable state of affairs, Parental Liability in EU Competition Law offers a fully-rationalised, reformulated approach to parental antitrust liability for EU competition law violations that is built around the notion of parental fault. That approach provides a solid normative account of how to impose parental antitrust liability in a manner that is theoretically robust, effective in practice, fair in substance, and legally sound.

Table of Contents:
Context and Background 1: EU-Level Parental Antitrust Liability and the Crucial Issue of Its Legitimacy 2: Assessing the Legitimacy of the EU-Level Doctrine of Parental Antitrust Liability The Foundations of the EU-Level Doctrine of Parental Antitrust Liability: 'Undertaking' and the Imputation Process 3: 'Undertaking' and Its Legal Implications 4: Determining the Constituent Elements of an Undertaking 5: The Constituent Elements of an Undertaking to Which an Infringement Can Be Imputed The EU-Level Doctrine of Parental Antitrust Liability 6: The Specifics of the Doctrine: Imputing the Competition Law Violation to the Parent Company 7: The EU-Level Approach to Parental Liability and Its Impact on the Imposition and Construction of Antitrust Fines 8: The EU-Level Approach to Parental Liability and Its Interaction with Other Enforcement Policies and Doctrines Legitimacy as 'Justifiability': Rationalising the Existence of Parental Liability for EU Competition Law Violations 9: Deterrence in EU Competition Law and Its Relevance to Parental Liability 10: Employing Deterrence Theory to Justify Parental Liability for Competition Violations 11: The Applicability to EU-Level Enforcement of the Deterrence-Based Justification for Parental Liability Legitimacy as 'Effectiveness': The Deterrence-Based Rationale and the Specifics of the EU-Level Doctrine of Parental Antitrust Liability 12: The Deterrence-Based Rationale and the Scope and Substance of the EU-Level Doctrine of Parental Antitrust Liability 13: The Deterrence-Based Rationale and the Specific Implications of the EU-Level Doctrine of Parental Antitrust Liability Legitimacy as 'Fairness': The Restraining Effect of Retribution on the EU-Level Doctrine of Parental Liability 14: Retribution and Its Relevance to the EU-Level Doctrine of Parental Liability 15: The Personal Responsibility of the Parent Company for the Competition Law Violation of Its Subsidiary 16: EU Law and Its Consideration of Retribution under the Doctrine of Parental Antitrust Liability 17: A Problematic Mismatch between EU Jurisprudence on Parental Liability and Principle Legitimacy as 'Legality': The Restraining Impact of General Principles of EU Law on the Doctrine of Parental Liability 18: Parental Liability and the Principle of Ne Bis In Idem 19: The EU-Level Doctrine of Parental Liability and the Presumption of Innocence 20: Justifying in Principle the 100% Shareholding Presumption: An Alternative (Proportionality-Focused) Assessment Ensuring the Legitimacy of the EU-Level Doctrine of Parental Antitrust Liability 21: A Proposal for a More Legitimate Approach to Parental Liability in EU Competition Law

About the Author :
Professor Peter Whelan is a Professor of Law at the School of Law, University of Leeds, where he is the Director of the Centre for Business Law and Practice. He has a PhD in Law from St John's College, University of Cambridge, and is a qualified US Attorney-at-Law. His work on competition law has been cited in European, African and South American judgments. He is a Non-Governmental Advisor to the International Competition Network and is a member of the United Nations Working Group on Cross-Border Cartels. To date Peter has presented his research in over thirty countries, across six continents.