In European Commission v. Stichting Administratiekantoor Protielje and Cosselin Group NV, Advocate General Julianne Kokott, the chief legal adviser to theEurope’s highest appeals court, issued an opinion that a parent company can be held liable for the cartel activity of its subsidiaries regardless of whether the parent actually conducts business itself. This recommendation came in a case where Europe’s high court is considering a lower court’s ruling that held that the European Commission could not fine Stichting Asministratiekantoor Portielje, a parent company that controls Gosselin Group NV, for its role in a long-running cartel for moving services in Belgium, on the ground that the parent company cannot be penalized by a decision implementing Article 81, if it was not involved in the undertaking itself.
Advocate General Kokott disagreed with the General Court, stating that the proper measure of whether a parent company should face joint and several liability is whether the infringing subsidiary lacks sufficient autonomy, making the two companies a single entity, regardless of the economic status of the individual units. According to the opinion, the only decisive factor in the analysis of liability is whether — viewed as a whole — one undertaking has committed the infringement. If an infringement occurred, a penalty can be imposed on all natural or legal persons who are principals of that joint undertaking. Although this opinion is used to provide objective legal analysis to Europe’s Court of Justice, it is not binding on the court.