Legal implications flowing from the case law on parental liability in the light of the judgements in El DuPont and Dow Chemical

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Legal implications flowing from the case law on parental liability

in the light of the judgements in El DuPont and Dow Chemical

Master thesis

Name:

Katarína Černejová

Student number:

11096756

Master track:

International and European Law:

European Competition Law and Regulation

Supervisor:

Joris Ruigewaard

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Table of abbreviations

AG – Advocate General

ECJ – European Court of Justice EU – European Union

GC – General Court

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Abstract

Certainly, with a view to avoid circumvention of law and ensure effective enforcement of competition law as the general objective of EU competition law, it is inevitable to punish the real perpetrator of the infringement caused. Thus legal separation of entities cannot be the decisive factor in determining the person who should answer for the infringement. Entities who genuinely pursue the unity of conduct on the market should constitute single economic unit and thus single undertaking, which in line with the principle of personal responsibility answers for the infringement caused. Due to legal sensitivity of the issue, criteria for this determination should be set very clearly and firmly in order to avoid situations of conceptual inconsistencies, legal uncertainty and unpredictability of law. Unfortunately, in reality this does not seem to be the case and the test for determining a single economic unit has been lowering down without any legitimate legal grounds to encompass arguably every situation of the parent/subsidiary relationship. Situation has become that stringent that the ECJ in El DuPont and Dow Chemical simply rubber stamped the Commission´s new approach of attributing liability to parent companies for the infringement caused by their full function joint venture despite the strong general counter-view on this issue alleging that full function joint venture is an autonomous economic entity in itself and thus cannot form a single economic unit with its parent companies. It is against this background that the main aim of the thesis is to identify and evaluate negative legal implications which flow from the case law on parental liability in the light of the judgements in El DuPont and Dow Chemical and which undoubtedly highlighted and approved the environment of over-deterrence and legal chaos. Moreover, the case law on parental liability as it stands today is likely to cause widespread practical implications which may result in harm of consumers and competition in general. As a result, I believe it is necessary to point out this issue and attempt to find a solution which would fairly address all of the concerns while preserving conceptual and legal clarity and predictability of law.

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Introduction

Imputation of liability to parent company for the infringements caused by its subsidiary would hardly be a discovery. Nowadays, the concept is well established in the realm of the EU competition law.1

The need to impute liability to parent companies has evolved as a natural reaction on the trend of “the ever-increasing complexity of the organisational structure of economic operators”2 which, if not addressed, would lead to the circumvention of competition rules in such a way that the role of “person actually responsible for a cartel offence”3 would not be regarded in the same vein as the role of “person who appears to outsiders to be the cartel participant”4. In other words, as a result of evolution, the need was recognised to punish the real perpetrator of the infringement caused. Therefore, “for the purposes of applying the rules on competition, the

formal separation between companies resulting from their separate legal personality is not, however, conclusive, the decisive test being the unity of their conduct on the market”5.

In respect for the general objective pursued by the EU competition law that being “the effective

enforcement of competition rules in order to prevent distortions of competition”6_“the

Commission must ensure that its action has the necessary deterrent effect”7. Arguably, this goal can be achieved only “when assessing the amount of a fine to be imposed, the true economic

strength of the whole undertaking is correctly taken into account and that the successful enforcement of the fine is not jeopardised by any transfers of assets between the parent company and its subsidiaries”8_.

Although the practical rationale certainly exists, such a development did not prove to be uncontroversial and “imputing liability to someone other than the perpetrator”9_{brought along}

1_{S. Mobley and D. Mourkas and G. Murray, “Parental liability for joint venture parents: the courts´ „El du Pont“} and „Dow Chemical“ judgements in conflict with optimal compliance incentives”, (2014), vol. 35 (10), European Competition law review, 499-508, p 499

2_{Case C 97/08, Akzo Nobel NV and Others v Commission [2009] ECR I-8237, Opinion of AG Kokott, para 42} 3_Ibid.

4_Ibid. 5_Ibid.

6_{Council Regulation (EC) 1/2003 of 16 December 2002 on the implementation of the rules on competition laid} down in Articles 81 and 82 of the Treaty (Regulation 1/2003) [2003] OJ L1/1, point 5

7_{Guidelines on the method of setting fines imposed pursuant the Article 23(2)(a) of Regulation 1/2003 [2006]} OJ C210/02, point 4

8_{AG Opinion, (no 2), para 43}

9_{N. Wahl, “Parental Company Liability – Question of Facts or Presumption?”, [2012], 19}th_{St. Gallen} International Competition Law Forum ICF, p 1

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variety of legal questions10_{that were exhaustively addressed in the legal literature and still}

pertain to be the subject of legal discussions.

The situation became even more stringent when the ECJ in identical judgements in El du Pont11

and Dow Chemical12_{gave the Commission a “green light” to attribute liability to parent}

companies for the infringements of their full function joint ventures despite strong general counterview on the issue. In the view of majority, parent companies shall not be attributed liability for the infringements caused by their full function joint ventures because the nature of full function joint venture itself and the way in which the Merger Regulation13 is construed, prevents it.14 Nevertheless, the ECJ decided differently and imputed liability to the parent companies.

The question then arises, how did the ECJ find a way to attribute liability to the parent companies of full function joint venture, if the general view existed that it is an impossible mission? How does this development on parental liability affect the whole body of EU competition law? In other words, what are the legal implications brought along and what do they tell us about the plausibility of the case law development on the issue of parental liability? As regards the methodology, the research was conducted in the scientific framework of the classic legal research. The research was carried out from the internal perspective. Although the research involved description and interpretation of the law to large extent, conducted research was also normative. Especially in the end, perscriptive statements are made according to critical morality.

Chapter one provides the insight on the relevant legal basis justifying the attribution of liability to parent companies for the infringements conducted by their subsidiaries in general. This chapter is devoted to the doctrine of parental liability. To this end, the concept of an undertaking and single economic unit are discussed in more details.

10_{The most salient question is that of personal responsibility for the infringement caused which has been} deeply rooted in Member States´ jurisdictions. This problem-matter is further analysed in the first chapter of the thesis. Another problem-matter is the presumption of parental liability established in case of 100% ownership in the subsidiary.

11_{Case C-172/12 P, El du Pont de Nemours & Co v. Commission [2013] ECLI:EU:C:2013:601} 12_{Case C-179/12 P, Dow Chemical Co v. Commission [2013] ECLI:EU:C:2013:605}

13_{Council Regulation (EC) 139/2004 of 20 January 2004 on the control of concentrations between undertakings} (EC Merger Regulation) [2004] OJ L024/1

14_{L. Atlee, “Joint venture…Subsidiary…What´s the difference for cartel liability and fines” (2012), vol. 1, CPI} Antitrust Chronicle, 1-8, p 2

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Chapter two presents the concept of full function joint venture as defined under the Merger Regulation.

Chapter three addresses the landmark judgments in El du Pont and Dow Chemical which have endorsed jurisprudential development on parental liability for the infringements caused by their full function joint ventures. For the purposes of the analysis conducted in the fourth chapter further below, all the relevant aspects of the judgements at stake are discussed and analysed at this point.

Having established the jurisprudential development on parental liability, chapter four, named legal analysis, predominantly deals with the legal implications of this line of case law. The part of legal implications is commenced with the discussion on an alleged evolution of a trend of strict parental liability which is at odds with the concept of single economic unit, an undertaking and, in turn, with the principle of personal responsibility. Sequentially, the internal disunity of the single economic unit – internal dissolution of legal implications of the concept of single economic unit, within the area of cartel law itself is discussed. Finally, the legal implication in the form of external disunity is analysed. It is argued that in different areas of competition law, such as cartel law, concentrations law and also state aid law, the concept of single economic unit is being used differently and present judgements made this discrepancy even more pronounced. All those elements gradually led to the environment of unpredictability of law and the breach of the principle of legal certainty. In order to get away with all of those negative repercussions, some considerations de lege ferenda are suggested.

1. Legal basis for imputation of liability

In the following chapter, the relevant legal basis for imputation of liability are introduced. According to the judgement in Akzo15, the fact that “the parent company and its subsidiary

form a single economic unit and therefore form a single undertaking (…) enables the Commission to address a decision imposing fines to the parent company, without having to establish personal involvement of the latter in the infringement”16

. For this purpose the concept of an undertaking and single economic unit doctrine are presented.

15_{Case C-97/08 P, Akzo Nobel NV and Others v. Commission [2009] ECR I-8237} 16_{Ibid., para 59}

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1.1. Parental liability doctrine

Various countries are dealing differently with the question of who should be held responsible for the unlawful conduct of subsidiaries.17_{Consequently, two main streams on how to determine}

this question may be identified. The first one, widespread and also the traditional one, finds its origins in the Roman law concept of legal personality, treating each legal entity meaning “an

autonomous legal subject having its own structure and its own rights and liabilities of other entities”18_{, as an entity solely responsible for its own conduct. Commonly referred to as}

corporate separateness principle or the principle of personal responsibility, this principle is firmly embodied in common law jurisdictions but also in jurisdictions of the Member States. On the other hand, the second stream of resolving the issue of the responsibility for the unlawful conduct of subsidiaries is to apply parental liability doctrine. This approach has been widely embraced in decisional practice of the EU institutions and enables them to treat “two corporate

legal entities, though separate legal persons”19_{as single economic unit and thus as single}

undertaking – the single addressee of competition rules.

While the need to promptly react on economic realities of the markets and thus effectively enforce EU competition law is in itself a strong motivation for the parental liability doctrine to be implemented, it is first of all essential to justify the concept legally. The EU competition law, with its concepts of an undertaking and single economic unit, is construed in such a way, so as to make it possible to justify the chosen approach.

1.1.1. The notion of an undertaking

Following the relevant Treaty20 provisions, competition rules apply to the conduct of an “undertaking”. The undertaking is thus the only addressee of and central concept in EU competition law. Although the concept is acknowledged at many places in the Treaty, none of the provisions defines it. As a matter of principle, in order to fill in the legal gaps, the responsibility to define the concept ultimately rested with the EU jurisprudence. So in the

17_{O. Odudu and D. Bailey, “The single economic entity doctrine in EU competition law”, (2014), vol. 51(6),} Common Market Law Review, pp. 1721-1758, p 1745

18_{J.K. de Pree and S.C.H. Molin, “Shareholder liability for joint venture infringements in the European Union“} (2011), vol. 34(3), Fordham International Law Journal, p 432

19_{O. Odudu and D. Bailey, (no 17), p 1746} 20_TFEU

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Höfner the ECJ ruled that “an undertaking encompasses every entity engaged in an economic

activity, regardless of the legal status of the entity and the way in which it is financed”21_.

Therefore, the ECJ made it more than clear that “the term “undertaking” must be understood

as designating an economic unit even if in law that economic unit consists of several persons, natural or legal”22

and added that “the authors of the Treaties chose to use the concept of an

undertaking to designate the perpetrator of an infringement of competition law, who is liable to be punished pursuant to Articles 81 EC and 82 EC23 [and] not other concepts such as the concept of a company or of a legal person”24

. Consequently, an undertaking may consist of

“natural persons, legal persons (…) and groups of persons”25

. It is, therefore, this economic entity forming a single undertaking whose behaviour on the market may infringe competition rules and so it is exactly the same economic entity that is subject to fines under the EU competition law because “the Commission may by decision impose on undertakings and

associations of undertakings fines (…)”26

.

1.1.1.1. What about the principle of personal responsibility?

Some authors have argued, though, that the only plausible approach to responsibility is that based on the principle of personal responsibility and parental liability doctrine may be perceived only as a derogation from this fundamental principle.27_{One may, however, disagree with this}

statement. The EU law respects fundamental principles on which it is based, one of which being the principle of personal responsibility. As observed in practice, EU institutions using the approach of parental liability doctrine tend to argue that this approach is truly based on the principle of personal responsibility. The ECJ stated that “when such an economic entity

infringes the competition rules, it falls, according to the principle of personal responsibility, to

21_{Case C-41/90, Höfner and Elser v. Macrotron GmbH [1991], ECR I-1979, para. 21; Case C-189/02 P, Dansk} Rorindustri and Others v. Commission [2005], ECR I-5425, para 112

22_{Case C-170/83, Hydrotherm Geratebau GmbH v. Compact del Dott. Ing. Mario Andreolli & C. Sas [1984], ECR} 2999, para. 11; Case C-217/05, Confederación Espaňola de Empresarios de Estaciones de Servicio v Compania Espanola de Petróleos SA [2006], ECR I-11987, para 40

23_{Currently under TFEU Articles 101 and 102}

24_{Joined cases C-274/11 P, Areva SA and Others v. Commission and C-253/11 P Alstom Grid AG and Others vs.} Commission [2014] ECLI:EU:C:2014:257, para 123

25_{A. Jones, “The boundaries of an undertaking in EU competition law”, (2012), vol. 8 (2), European Competition} Journal, 301-331, p 305

26_{Regulation 1/2003, (no 6), point 23}

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that entity to answer for that infringement”28_{. Admitting the fact that an undertaking does not}

coincide with a legal personality in a traditional sense, it may, however, be argued that an undertaking as a legitimate addressee of the EU competition law provisions is a sui generis person established by EU competition law. So as the individual conduct on the market of an internal unit of a single legal person is not being reviewed separately, so is not in the same manner reviewed the individual conduct on the market of legal person forming integral part of an economic entity and so one single undertaking. Therefore, rather than being in breach with the principle of personal responsibility, the concept of an undertaking as an economic entity is based on this principle, although, admittedly in its slightly modified way.

Having said that, the ground for a challenge emerges where the concept of personal responsibility in traditional sense meets the modified one. The principle of personal responsibility in traditional sense is embodied in Article 299 TFEU according to which only acts imposing “pecuniary obligation on persons other than States, shall be enforceable”29_{. The}

fines shall be enforced exclusively with regard to natural or legal persons and not to undertakings, although it is the undertaking, according to the EU competition law, who is the subject to imposition of sanctions due to infringements caused by any unit forming the economic entity. Anyways, basing its judgement in Akzo on the Opinion of the AG, the ECJ´s rationale goes as follows: “the parent company and the subsidiaries under its decisive influence

are collectively a single undertaking for the purposes of competition law and [are] responsible for that undertaking”30_{. This “gives rise to collective personal responsibility [in traditional} sense] of all the principals in the group structure”31_{. Therefore, although the provision is}

addressed to persons and not to undertakings, the economic-based approach adopted in the realm of the EU competition law, the approach of parental liability, shall justify enforceability of sanctions aimed at all persons, legal or natural, forming single economic unit and thus one single undertaking.

1.1.2. Single economic unit doctrine

28_{Akzo, (no 15), para 56} 29_{TFEU, para 299}

30_{AG Opinion, (no 2), para 97} 31_Ibid.

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The concept of parental liability “revolves around the concept of single economic unit”32_{. In}

accordance with settled case law, “competition law refers to the activities of undertakings”33_.

Because, as analysed above, “the concept of an undertaking (…) must be understood as

designating an economic unit even if in law that economic unit consists of several persons, natural or legal”34_{, it is for thus formed economic entity as a whole, in accordance with the}

principle of personal responsibility, to answer for the infringement committed by any of the entities forming its part.35_{Because the fine for the infringement must be imposed unequivocally}

on a legal person to ensure the enforceability of the fine, all legal and also natural persons, if it is the case, forming the economic entity shall be the addressees of the fine at question.36

Such a functional approach towards the notion of an undertaking, echoing in the statement that the concept “is not addressed to entities [natural or legal persons] at all, rather it addresses

[economic] activities”37_{, presents the fundamental grounds for emergence of the single}

economic unit doctrine. This approach provides for the flexibility enabling economic specificities to prevail in individual circumstances and individual considerations to be made on case by case basis. In other words, “there are no bodies that cannot be considered undertakings,

only activities that are not considered economic”38_.

However, hand in hand with this approach being adopted, it is not always easy to designate an undertaking. Unlike in the cases of natural and legal persons whose legal status is clear and thus can be immediately recognised, in the case of an undertaking and due to its unique nature further analysis must be conducted in order to designate which entities form a single economic unit and thus part of the single undertaking. Particularly, this holds true when imputing liability for the infringements caused by the subsidiary which is quite often part of the whole corporate group managed by the parent company.

In line with the suggestions made above, the ECJ in Bodson held that “the mere fact that holders

of concessions belong to the same group of undertakings is not decisive in that regard”39_.

32_{E. Eklund and O. Jansson, „Increased liability for parent companies for joint venture´s competition law} infringements“ [2013]

http://www.delphi.se/$-1/file/nyhetsbrev/2013/1312-eklundjansson-increasedliability.pdf accessed 18 February 2016, p 1 33_{Akzo, (no 15), para 54}

34_{Ibid., para 55} 35_{Ibid., para 56} 36_{Ibid., para 57}

37_{Odudu, Okeoghene. „Meaning of Undertaking within 81 EC“ [2004] Cambridge Yearbook Of European Legal} Studies, p 212

38_{Ibid., p 213}

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Nevertheless, the corporate group may constitute a single economic unit considering “the

nature of the relationship between the undertakings belonging to that group”40_{. To put it}

differently, in order to reach a conclusion that the subsidiary and its parent company form a single economic unit, the only thing that needs to be proved is that “the subsidiary does not

decide independently upon its own conduct on the market, but carries out in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities”41_.

While it may seem that the test is clearly phrased and concerns only the market conduct in a narrower sense, contrary is the case. The ECJ stated that “the conduct on the market cannot be

the only factor which enables the liability of the parent company to be established, but is only one of the sings of the existence of an economic unit”42_{. “In order to ascertain whether a} subsidiary determines its conduct on the market independently, the account must be taken (…) also of all the relevant factors relating to economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list”43_.

On the top of that, it must be borne in mind, that the mere possibility to control the subsidiary and thus the ability to exercise decisive influence over the conduct of the subsidiary is not enough to establish single economic unit.44

There is, however, one exemption to this rule, referred to as presumption of parental liability. In those cases, it is sufficient for the Commission to establish that the parent company holds 100% of the shares or slightly less than that in its subsidiary “in order to presume that the

parent exercises a decisive influence over the commercial policy of the subsidiary”45_.

Respecting the right of defence, the presumption is rebuttable46_{although it has been broadly}

claimed that in practice it is impossible to rebut this presumption. If upheld by the ECJ, it may even happen that the presumption will broaden to encompass also situations in which parent companies hold slightly less than 100% of the shares in their subsidiaries.47_{Anyway, in the rest}

40_Ibid.

41_{Akzo, (no 15), para 58} 42_{Ibid., para 73}

43_{Ibid., para 74}

44_{Case C-48/69, Imperial Chemical Industries Ltd. v Commission [1972], ECR 619, para 137} 45_{Akzo, (no 15), para 61}

46_{Ibid., para 60}

47_{Case C 421/11 P Total and Elf Aquitaine v Commission, still pending; Case T 206/06 Total and Elf Aquitaine} v Commission [2011] ECLI:EU:T:2011:250

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of the cases, the concept of actual exercise of decisive influence or control is central and represents the only relevant benchmark for designation of the single economic unit which, building on the broad jurisdictional practice, is affirmed also in the Commission´s guidelines where the Commission let itself to pronounce that “when a company exercises decisive

influence over another company, they form a single economic entity and, hence, are part of the same undertaking”48_.

1.1.2.1. Implications of the concept of single economic unit

Designating companies to form a single economic unit and thus single undertaking “in view of

the unity of the group thus formed"49_{, has several legal repercussions recognised by the case}

law. Firstly, “the actions of subsidiaries may in certain circumstances be attributed to the

parent company”50_{. As already mentioned above, each person forming single economic unit}

should be responsible for the infringement caused by any entity forming part of the single economic unit on the basis of joint and several liability. Arguably, only if the sanctions imposed reflect the reality of economic strength of an undertaking the objective of effective enforcement of EU competition law can be successfully fulfilled. Secondly, “not all economic interactions

between separate legal entities are capable of having competitive significance”51_{. In turn “the} concept of an economic entity ensures that EU competition law is focused on the types of interactions that matter”52_{. Therefore, “where a subsidiary does not enjoy real autonomy in} determining its course of action in the market, the prohibitions set out in Article 85(1) may be considered inapplicable in the relationship between it and the parent company with which it forms one economic unit”53_{. Consequently, entities forming single economic unit are not}

capable of concluding an agreement in terms of Article 101 due to identity of interests they commonly pursue and due to the power of control parent company exercises over its subsidiaries. Lastly, a single economic unit may serve as a shield for the Commission to apply the EU jurisdiction on the companies domiciled outside the EU under the condition they form

48_{Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to} horizontal co-operation agreements [2011] OJ C11/01, section 1., subsection 1.1., point 11

49_{AG Opinion, (no 2), para 88}

50_{Imperial Chemical Industries, (no 44), para 135} 51_{O. Odudu and D. Bailey, (no 17), p 1725} 52_Ibid.

53_{T-102/92, Viho Europe BV v Commission [1995] ECR II-0017, para. 47 approved by the ECJ in case C-73/95 P,} Viho Europe BV v Commission [1996] ECR I-5457, para 18

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a single economic unit with companies domiciled in the EU. Therefore, it enables extra-territorial application of EU competition law.54

2. Full function joint venture

Full function joint venture is defined in the Merger Regulation as “a joint venture performing

on a lasting basis all the functions of an autonomous economic entity”55_.

Jurisdictional Notice on the Merger Regulation56_{provides further guidance on which entity}

shall be considered as a full function joint venture.

2.1. Operation on a lasting basis

If the parent companies transfer or enable the joint venture to have sufficient resources, it normally demonstrates, that the joint venture is being created with a view to operate on a lasting basis.57_{“The incorporation of provisions for the eventual dissolution of joint venture itself or} the possibility for one or more parent companies to withdraw from the joint venture”58_{, do “not} prevent the joint venture from being considered as operating on a lasting basis”59_{. If the joint}

venture is not created only “for a short finite duration”60_{, specific but sufficiently long period}

or the possible continuation beyond this period is not of a problem either.61_{Conversely, if the}

operation of a joint venture is dependent upon the decision taken by the third party, the joint venture cannot be considered to operate on a lasting basis.62

2.2. Functions of an autonomous economic entity

54_{O. Odudu and D. Bailey, (no 17), p 1722/1723} 55_{Merger Regulation, (no 13), para 3(4)}

56_{Commission Consolidated Jurisdictional Notice under Council Regulation (EC) 139/2004 on the control of} concentrations between undertakings of 16 April 2008 [2008] OJ C95/01 (Jurisdictional Notice)

57_{Ibid., para 103} 58_Ibid. 59_Ibid. 60_{Ibid., para 104} 61_{Ibid., para 103} 62_{Ibid., para 105}

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“Full function character essentially means that a joint venture must operate on the market, performing the functions normally carried out by undertakings operating on the same market”63_{. Consequently, full function joint venture must have its own “management dedicated} to its day-to-day operations and access to sufficient resources including finance, staff and assets (tangible and intangible) in order to conduct on a lasting basis its business activities”64_.

However, “the secondment of personnel by parent companies”65_{in no way precludes full}

function nature of joint venture, provided that it is “only for a start-up period”66_{or if “the joint} venture deals with the parents´ at arm´s length on the basis of normal commercial conditions”67_{. In either case, the joint venture must be “free to recruit its own employees or to} obtain staff via third parties”68_.

Moreover, joint venture which “takes over one specific function within the parent companies´

business activities without its own access to or presence on the market”69_{is not full function.}

Only when the joint venture is not “auxiliary to (…) parent companies´ business activities”70_,

limited to for instance research and development or production, it can be considered as full function. Therefore, full function character demands a “transfer of complete activity with all

attached functions”71_.

It is neither determinative if “for an initial start-up period only, the joint venture relies almost

entirely on sales to or purchases from its parent companies”72_{. However, after this period,} “significant third-party sales are foreseen”73_{or as far as concerns purchases from the parent}

companies, joint venture does not serve the purpose of a mere “joint sales agency”74_{. Rather,} “the relationship between the joint venture and its parent (…) [must] be truly commercial in character and (…) the joint venture [must] deal with its parents on the basis of normal commercial conditions”75_. 63_{Ibid., para 94} 64_Ibid. 65_Ibid. 66_Ibid. 67_Ibid. 68_Ibid. 69_{Ibid., para 95} 70_Ibid.

71_{Ch. Bergqvist, “The concept of an autonomous economic entity”, (2003), vol. 24(10), European Competition} Law Review, p 498

72_{Jurisdictional Notice, (no 56), para 97} 73_{Ibid., para 100}

74_{Ibid., para 101} 75_{Ibid., para 100}

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3. Landmark judgements in Dow Chemical and El du Pont

The analysis of imputation of liability of the parent companies for the infringements of their full function joint ventures revolve around the landmark judgements in Dow Chemical and El du Pont, that have arisen from identical case, both decided by the ECJ on 26 September 2013. It were those two judgements that have elaborated upon the possibility of parental liability for the infringements caused by their full function joint ventures.

Firstly, brief outline of the factual background of those two judgements is provided. Secondly, the way in which the GC applied the rule and responded to the arguments by the parties is considered. The stress is then put on the relevant legal findings of the ECJ, as it is the ECJ who has “a major role to play in the development of the EU legal order”76_{. The chapter is concluded}

with a brief and clear overview of the rule as established in the case law of parental liability in the light of the judgements under consideration.

3.1. Factual background

The judgements under consideration relate to the Commission´s decision which imposed fines on several companies for their participation in price fixing and market sharing hard-core cartel on the chloroprene rubber (CR) market since 1993 until 2002.

One of the companies, active on the chloroprene rubber market, which the Commission found to directly participate in the infringement at question was DuPont Dow Elastomers LLC (DDE).77_{This company was created as full function joint venture, jointly controlled by its two}

parent companies, El DuPont and Dow Chemical, each of them holding equal shares in it.78

This situation lasted until the 30 June 2005 “when DDE ceased to be a joint venture and,

instead, became a wholly owned subsidiary within the DuPont Group under the name DuPont Performance Elastomers L.L.C. [´DPE LLC´]”79. In turn, DDE SA which was DDE´s regional

office for Europe became DPE SA, a wholly owned subsidiary of DPE LLC.80

76_{A. Kaczorowska, European Union Law (third edition, Routledge 2013), p 140} 77_{Chloroprene Rubber (COMP 38.629) Commission decision, para 79}

78_{Ibid., para 31 - 35} 79_{Ibid., para 36} 80_{Ibid., para 40}

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DDE legally ceased to exist before the administrative procedure was commenced. As a result, the statement of objections was addressed to the legal successors of DDE, i.e. DPE LLC and DPE SA, who were considered liable for DDE´s direct involvement in the infringement at question.81

Strikingly, tough, the Commission addressed the statement of objections to both of the parent companies of the joint venture. It found that both parent companies of DDE namely, El DuPont and Dow Chemical, should be held responsible for the infringement caused by DDE since it was allegedly demonstrated, relying on the objective factors of the case, “that DDE did not

enjoy an autonomous position but, rather, that Dow and DuPont exercised decisive influence on the commercial conduct and policies of the joint venture on an equal footing”82_.

Regarding the full function nature of the joint venture, the Commission simply stated that

“there is no presumption that an infringement of Community antitrust rules by a joint venture, which has been deemed to be a full-function joint venture for the purposes of a decision pursuant to the Merger Regulation, would be the responsibility of the joint venture alone and not of its parents”83_{. The Commission added that “in the case of a joint venture it is possible to} find that the joint venture and parents together form an economic unit for the purposes of the application of Article 81 of the Treaty if the joint venture has not decided independently upon its own conduct on the market“84_.

Recalling the judgement in Avebe85_{, which was, however, not upheld by the ECJ as no appeal}

was brought against the GC´s decision, the Commission found “that the joint venture´s parents

have exercised decisive influence over the joint venture´s conduct on the basis of factual evidence, in particular, any management power over the joint venture”86_{. Relying on the joint}

venture agreement clauses, “the lack of an independent board of directors with external

representatives”87_{combined with the Members´ Committee objective “to supervise the} business of DDE and to approve certain matters pertaining to the strategic direction of DDE”88

and its “right to appoint the officers of DDE responsible for the day-to-day business affairs”89

81_{Ibid., para 408} 82_{Ibid., para 421} 83_{Ibid., para 434} 84_Ibid.

85_{Case T 314/01 Avebe v Commission [2006] ECLI:EU:T:2016:266} 86_Ibid.

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sufficed for the Commission to conclude that the joint venture did not determine its market conduct independently. Additionally, the Commission also considered hypothetical parent companies´ awareness of DDE´s participation in the cartel due to El DuPont´s previous participation in this cartel before the creation of the joint venture.90

Finally, the Commission adopted the decision on 5 December 2007. Backed up by the reasoning outlined above, the Commission held that “DuPont and Dow, as the parent companies of the

joint venture DDE, should be held jointly and severally liable for the behaviour of that joint venture”91_{. As a result, not only the legal successors of DDE but also both of its parent}

companies92_{were obliged to pay the fine imposed on them for the anticompetitive conduct of}

the DDE between 1 April 1996 to 13 March 2002 on joint and several basis.93

3.2. The appeals brought before the GC

3.2.1. Arguments put forward by the applicants in the main proceedings

The result itself and the Commission´s reasoning gave rise to the El DuPont´s and Dow Chemical´s claims brought before the GC holding that the Commission incorrectly attributed liability to them for the infringement caused by their full function joint venture and thus committed a “manifest error of assessment of the facts and an error of law”94_{. In support of}

this plea both applicants put forward relevant arguments discussed below.

3.2.1.1. “The Commission ignored the fundamental significance of the concept of full-functionality”95

The applicants jointly claimed, that full-function nature of DDE was self-determinative on its independent market behaviour. Thus the full-function nature enabled DDE to operate autonomously on the market of its parent companies.96_{Consequently DDE must have been}

90_{Ibid., para 427, 428, 437, 438, 439} 91_{Ibid., para 420}

92_{Ibid., para 441} 93_{Ibid., para 442}

94_{Case T 77/08 Dow Chemical v Commission [2012] ECLI:EU:T:2012:47, para 37} 95_{Case T 76/08 El DuPont [2012] ECLI:EU:T:46, para 51}

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perceived as a separate “undertaking that was economically, structurally and legally distinct

from its parent companies”97_.

Dow Chemical also believed that “once the autonomous nature of an entity is recognised in

Community law, that autonomy must also be recognised in a coherent manner”98_.

Therefore, according to the applicants a presumption existed “that a full-function joint venture

acts autonomously and that any unlawful conduct on its part is not imputable to its parent companies”99_{. Only when the Commission was able to establish that a joint venture did not act}

autonomously, the presumption could be rebutted and parent companies could be held liable for the infringement of full-function joint venture.100

In this regard, the applicants observed, that the Commission previously “recognised that a

full-function joint venture could be presumed to be autonomous from its parent companies”101_{. They}

were convinced, that without stating any relevant reasons the Commission in the present case departed from its previous conclusion.102

3.2.1.2. The Commission did not prove that parent companies actually exercised decisive influence over DDE

Neither of the applicants contested the fact that according to the Merger Regulation the parent companies had joint control under the Merger Regulation over the full-function joint venture. Otherwise, the creation of a joint venture could never be assessed concentrative. However, they adduced “that the level of joint control that the parent companies of a full-function joint venture

are able to exercise jointly over such an undertaking is not sufficient to establish the actual existence of decisive influence that is necessary in order for the unlawful conduct of a joint venture to be imputed to one or other – or both – of the parent companies”103_{. Negative joint}

control they had over DDE only implied “that they had a right of veto over the commercial

97_{El DuPont, (no 95), para 46} 98_{Dow Chemical, (no 94), para 54}

99_{El DuPont, (no 95), para 50; (in Dow Chemical judgement it is not expresslly claimed but it can be deduced} from the argumentation of the applicant)

100_Ibid.

101_{El DuPont, (no 95), para 52; analogously Dow Chemical, (no 94), para 55} 102_Ibid.

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strategy of the joint venture and not that they had the power to exercise decisive influence over the day-to-day management of the company”104_.

The applicants jointly asserted that “the Commission was wrong to rely on the judgement in

Avebe (…) as the circumstances of that case are not comparable with those of the present case”105_{. In this regard separate legal personality and full-function nature of DDE were}

highlighted. Most importantly, however, Dow Chemical claimed, that “the Commission is

wrong to maintain that the Court has laid down a general principle that any management power can suffice to demonstrate that decisive influence was in fact exercised and thus serve to establish the liability of the parent company”106_{. “By virtue of the case law, the Commission} was required (…) to demonstrate”107_{“that the applicant was involved in the day-to-day} management of DDE”108_{. However, the Commission merely relied on “the exercise of} supervisory functions”109_{and “matters pertaining to the strategic direction”}110_{of the Members´}

Committee which “cannot in any event be characterised as a management power within the

meaning of the case law”111_.

Dow Chemical expressly maintained that “the Commission gave the concept of the exercise of

decisive influence an over-extensive interpretation”112_{. In the view of the applicant, however,}

such an interpretation did not serve “useful purpose, such as punishment or deterrence”113_and

had “only negative effects on competition, since it could, for example, deter operators from

forming concentrative full-function joint ventures”114_.

3.2.1.3. The Commission was wrong to hold that the parent companies form single economic unit with DDE

Both applicants argued that they did not form single economic unit with DDE.115_However,

Dow Chemical elaborated on the conceptual side of this argument further. It held that in general

104_{Dow Chemical, (no 94), para 55; analogously El DuPont, (no 95), para 51} 105_{Dow Chemical, (no 94), para 58; analogously El DuPont, (no 95), para 51} 106_{Dow Chemical, (no 94), para 58}

107_{Ibid., para 60} 108_Ibid.

109_Ibid. 110_Ibid. 111_Ibid.

112_{Dow Chemical, (no 94), para 67} 113_Ibid.

114_Ibid.

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it is not possible to apply the concept of single economic unit in joint venture cases, because the Commission had in its previous cases applied Article 101 (1) TFEU in the relations between the parent companies and their joint ventures.116_{With a view of consistent approach, Dow}

Chemical claimed that “either there is a single economic entity, within which Article 81 (1) EC

does not apply but within which liability for the infringement can be shared, or there is no single economic entity, in which case Article 81 (1) EC may apply as between the parent company and the joint venture, but then the parent company cannot be held liable for the infringements committed by the joint venture”117_.

3.2.1.4. The Commission was wrong to base its conclusion of the actual exercise of decisive influence on the parent companies´ hypothetical awareness of the existence of the cartel

The applicants argued that the Commission merely deduced alleged awareness of the parent companies of the existence of the cartel from the fact that El DuPont previously participated in the cartel in question, from the decision to close the plant and from the fact that the parent companies sequentially conducted internal investigation. However, such an assertion lacked reasoning because the Commission was not able to prove that parent companies were actually aware of the cartel.118_{Since the assumption of the awareness of the cartel was one of very few}

facts on which the Commission attributed the liability Dow Chemical suggested that the Commission made a manifest error of assessment and the decision should be annulled.119

3.2.2. The ruling of the GC

Having recalled the settled case law as established in Akzo judgement, the GC rightly observed that first of all it is necessary to analyse whether the “parent companies actually exercised

decisive influence over DDE´s conduct on the CR market”120_.

As a preliminary point, the GC alleged that the joint venture had a business purpose which was affected by the parent companies´ business interest, because those were active on the CR market

116_{Dow Chemical, (no 94), para 66} 117_{Ibid., para 65}

118_{El DuPont, (no 95), para 54; Dow Chemical, (no 94), para 45-50} 119_{Dow Chemical, (no 94), para 46}

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only through their joint venture.121_{It seems that also on this ground the GC attempted to prove}

that it was in the parent companies´ interest to pursue a single commercial policy, it being a decisive factor expressly named in the AG´s Opinion on which the ECJ in Akzo judgement relied.122

Then the GC relied on the fact that upon the concentration, “the Commission formally found

that the parent companies had acquired joint control of DDE”123_{. However, this control is}

defined under the Merger Regulation as a “power to block actions which determine the strategic

commercial behaviour of an undertaking”124_{. As a result, according to the GC, the power of}

each parent company to block strategic decisions, i.e. the joint control under the Merger Regulation became tantamount to the decisive influence test for determining a single economic unit.125_{Seemingly, however, the GC was rather pointing to the fact that because of the threat of}

a deadlock situation, the parent companies were required to cooperate.126_{Because the GC}

merely presupposed this fact its judgement, in my opinion, simply ended up with the mere possibility to exercise negative joint control by both of the parent companies because, as evidenced below, I believe it did not genuinely demonstrate the actual exercise of positive joint control.

Only then the GC started with the assessment of individual factors. As the evidence proving the actual exercise of decisive influence over the market conduct the GC firstly considered the fact that the members of the Member´s Committee were granted a right to appoint “to the top

management posts in the joint venture persons from a high management level within the parent companies”127_.

Secondly, the GC acknowledged that the decision to close DDE´s CR production plant in the UK constitutes also an indication of the decisive influence because the decision could not be taken unless the consent was given by the Member´s Committee.128

124_{Jurisdictional Notice, (no 56), para 62}

125_{R. Polley, „Parental liability in joint venture cases“ [2012], 19th St. Gallen International Competition Law} Forum ICF, p 16

126_{Jurisdictional Notice, (no 56), para 62, 63}

127_{El du Pont, (no 95), para 70; Dow Chemical, (no 94), para 85} 128_{El du Pont, (no 95), para 71; Dow Chemical, (no 94), para 86}

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Thirdly, the GC took into account significant powers reserved to the Member´s Committee related to the management of the joint venture as anchored in the LLC Agreement.129_The

Member´s Committee was set up with a view “to supervise the business of DDE and to approve

certain matters pertaining to the strategic direction of DDE”130_{. Although claiming to the}

contrary, the GC, however, in my opinion, did not investigate whether those powers (neither negatively nor positively) were actually exercised. It simply stated that “given that (…) DDE

operated for a number of years and that the parent companies did not dispute that the LLC Agreement had been implemented in accordance with its clauses”131_{the parent companies}

actually exercised decisive influence over DDE.

Lastly, the GC held that the fact that after being informed about the alleged anticompetitive behaviour of their joint venture, the parent companies commenced the internal investigation sufficed to prove that the parent companies had the means to conduct DDE in accordance with the competition rules.132_{According to the GC, based upon this mere assumption “the conclusion} must be drawn from this that the parent companies did in fact have the power to require their joint venture to adopt a specific line of conduct on the market”133_{. I believe, that this argument}

is not robust either. It was rather only a different way of alleging what had already been clear, namely, that parent companies truly had a possibility to exercise decisive influence.134

Based on the above outlined factors, the GC found that the Commission did not err in finding that the parent companies actually exercised decisive influence over their joint venture.135

3.2.2.1. How did the GC in turn cope with the applicants´ arguments?

129_{El du Pont, (no 95), para 72; Dow Chemical, (no 94), para 87} 130_{Dow Chemical, (no 94), para 81}

131_{El du Pont, (no 95), para 72; Dow Chemical, (no 94), para 87} 132_{El du Pont, (no 95), para 73; Dow Chemical, (no 94), para 88} 133_{Dow Chemical, (no 94), para 88}

134_{In the previous judgements the ECJ held that „the introduction of compliance programmes can be used as} evidence that the parent company exercises decisive influence“(parent liability for joint venture parents). This only indicates how inconsistent the ECJ is being when applying decisive influence test. Although there is no such a list of factors that must be considered, the application of the same factors should really be consistent. Just for a remark, as regards the compliance programme, I do agree with Mobley and the others who claim that in order not to dissuade companies to adopt compliance programmes (the aim of the competition law being the effective functioning of competition on the market) „a far better policy approach would be not to take a compliance programme into account when establishing decisive influence“.

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The GC´s strong reliance on its judgement in Avebe, set it off to easily dismiss almost all of the applicants´ claims.

As regarded apt application of Avebe judgement itself the GC held that any specific circumstances of Avebe judgement are not capable to call into question the principle that liability can be imputed to those parent companies who “jointly exercise decisive influence over

the business strategy of their joint subsidiary”136_{. The GC did not react on the quality of the}

management power, silently acknowledging that it refers truly to any management power and is being in line with what has been held in Akzo judgement.

Being confronted on the negative nature of the joint control, the GC stated that such a negative nature is “not sufficient to preclude the exercise of decisive influence over DDE”137_because

each parent company has a power to block the strategic decisions and thus to exercise decisive influence over the business strategy of its joint venture.138

In exactly the same vein, the GC reasoned that just because the full function joint venture is autonomous from an operational viewpoint does not mean that it enjoys an autonomy as regards the adoption of its strategic decisions.139_{According to the GC, full function nature of a joint}

venture does not preclude the finding of parental liability.

On argument that the Commission departed from its previous decision in Rubber Chemicals relating to the autonomy of full function joint venture without any rational explanation, the GC alleged that the argument must be rejected because the Commission “reasoned its decision

138_{This reasoning seems quite controversial to me. Does it mean that the GC truly accepts negative nature of} joint control to be decisive if actually exercised? I believe that this is exactly one of the points at which the GC should have taken into consideration the material difference between the joint and sole control defined under Merger Regulation because they do not cause the same intensity of influence if exercised. Undoubtedly, negative joint control is the expression of the will of the parent company and influences strategic decisions in a way that they are not adopted. It does not give the parent company a power to positively influence the market conduct of a joint venture through the adoption of strategic decisions. This power does in no way indicate the actual exercise of decisive influence over the joint venture´s market conduct because no strategic decision is actually adopted. If such a deadlock situation comes up, the joint venture is becoming even more independent. Whatsoever, in the present judgement it is quite clear that the GC was considering actual exercise of positive joint control which, in my opinion, truly can, under certain conditions, lead to imputation of liability to parent companies. Anyways, the GC reconciled the concept of joint control under Merger Regulation with decisive influence under the case law on parental liability. In this way it can be deduced that even negative joint control may suffice. This argument would be, however, as explained, intellectually weak.

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explicitly by reference (…) to the case law of the European Union and to its own decision-making practice”140_.

However, it was not that simple when it came to the alleged conceptual inconsistency of the term a single economic unit. Dow Chemical argued that if the parent companies and their joint venture were to be considered as a single economic entity, all the agreements between them shall be considered as internal arrangements and thus escape the application of Article 101 TFEU. Without going too much into details the GC simply stated that according to Avebe “in

the light of the existence of joint control (…) the joint venture (…) and its parent companies (…) formed an economic unit for the purpose of the subject matter of the agreement in question”141_.

On the alleged lack of knowledge of the applicants in the main proceedings the GC only held, that “awareness of the existence of the cartel was taken into account by the Commission as an

additional factor, supplementing its reasoning in the contested decision”142_{. It was important}

that, according to the GC, it was proved143_{that the applicants “exercised sufficient decisive} influence over DDE to be able to direct DDE´s conduct to such an extent that the two could be regarded as part of the same economic unit”144_.

The GC also considered two additional factors. Firstly, it claimed that an “undertaking which

has the possibility of exercising decisive influence over the business strategy of its subsidiary may therefore be presumed (…) to have the possibility of establishing a policy aimed at compliance with competition law and to take all necessary and appropriate measures to supervise the subsidiary´s commercial management”145_{. Again, it is a mere assumption which}

does not have any real factual background. Does not it rather mean that the parent companies did not use their power to exercise decisive influence? Secondly, the GC also claimed, that because “the gains resulting from illegal activities accrue to the shareholders, it is only fair

that those who have the power of supervision should assume liability”146_{. This factor did not in}

any way lead us to the conclusion of the actual exercise of decisive influence over the market conduct. I believe that this argument is thus completely irrelevant.

140_{El du Pont, (no 95), para 80; Dow Chemical, (no 94), para 91} 141_{Dow Chemical, (no 94), para 99}

142_{Ibid., para 111} 143_{Ibid., para 106} 144_{Ibid., para 89} 145_{Ibid., para 101} 146_Ibid.

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Unsurprisingly, the judgement was followed by the appeals brought before the ECJ.

3.3. The appeals brought before the ECJ

3.3.1. Arguments put forward by the applicants in the main proceedings

The applicants, inter alia, alleged that the GC misconstrued the concepts of single undertaking, single economic unit and the existence of decisive influence.147

3.3.1.1. The arguments supporting the view that the GC misconstrued the concept of undertaking and single economic unit

Dow Chemical claimed that holding parent companies and their joint ventures to constitute single economic unit and thus single undertaking led to multiplicity of undertakings. Thus Dow found itself forming an undertaking with many different entities, “all of which comprise joint

ventures and their parent companies”148_{. It also asserted that contrary to the GC´s ruling internal}

conceptual unity of the term single economic unit shall be preserved. Therefore, Commission shall not vary revision of the facts on a case-by-case basis according to whether it decides on the attribution of liability or on the substantive reach of Article 101 TFEU. Once the entity is proclaimed to form single economic unit, the same shall hold true in every consecutive case concerning this formation.149

Moreover, in the Dow Chemical´s view, proclaiming the parent companies and their full function joint venture to form a single economic unit is contrary to Merger Regulation because a change in control (from joint to sole) would not be regarded as internal restructuring but as a notifiable concentration.150_{Also, Merger Regulation presupposes application of Article 101}

TFEU between the parent companies.151_{El DuPont in this regard alleged that disregarding the}

full function nature of joint venture with its own legal personality caused that the GC failed “to

149_{Ibid., para 38} 150_{Ibid., para 43} 151_Ibid.

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observe the principle of the personal responsibility of the economic entity which committed the infringement”152_.

3.3.1.2. The arguments supporting the view that the GC misconstrued the concept of decisive influence

Dow Chemical claimed that “the General Court did not make a distinction between the capacity

to exercise decisive influence and the actual exercise of decisive influence”153_{. Even more, both}

applicants pleaded that they considered it to be impossible for the parent companies to exercise decisive influence as established under the case law on the attribution of liability, since joint control gives parent companies only negative power to reject strategic decisions.154_Generally,

just because both parent companies jointly exercised decisive influence as defined in Merger Regulation, it “does not mean that one or other may incur liability under Article 81 EC as a

result of the conduct of the joint venture”155_.

3.3.2. The ruling of the ECJ

After recalling the relevant case law, to which the GC was rightly referring to, the ECJ concluded that “when two parent companies each have a 50% shareholding in the joint venture

which committed an infringement of the rules of competition law, it is only for the purposes of establishing liability for participation in the infringement of that law and only in so far as the Commission demonstrated, on the basis of factual evidence, that both parent companies did in fact exercise decisive influence over the joint venture, that those three entities can be considered to form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC”156_.

Therefore, the ECJ held that “as regards the verification process of the assessment”157_{the GC}

did not misconstrue the abovementioned concepts and rather followed the previous case law.158

152_{El DuPont, (no 11), para 34} 153_{Dow Chemical, (no 12), para 44}

154_{Dow Chemical, (no 12), para 60; El DuPont, (no 11), para 35} 155_{El DuPont, (no 11), para 36}

156_{El DuPont, (no 11), para 47; Dow Chemical, (no 12), para 58} 157_{El DuPont, (no 11), para 48}

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While it is true, that in strictly legal terms the GC did not misconstrue the terms undertaking and the single economic unit159_{, practical and legal concerns behind the arguments put forward}

by the applicants in this regard remained unclear and indicated that something is not right. It seems that the ECJ established a context-specific approach towards the concept of single economic unit based on the fact whether it is being ruled on the attribution of liability or on the substantive reach of Article 101 TFEU. Also the question of the multiplicity of undertakings remained untouched.

Moreover, the ECJ was of the opinion, that the GC did not conclude the existence of decisive influence on the basis of a mere possibility but rather it “relied on its own assessment of the

economic, organisational and legal factors which tied DDE to its two parent companies, as determined by the Commission in its decision”160_{. Having claimed that the factors on which the}

Commission based its decision were not distorted and thus called under the appeal, the ECJ found other claims to be unfounded. In this way, the ECJ simply evaded the ruling on the allegedly insufficient effects of the negative power to block strategic decisions161_{which are,}

inter alia, connected with the lack of power to impose a compliance programme.162

ECJ reasoned that “decisive influence is not necessarily tied in with the day-to-day running of

a subsidiary”163_{and that “the evidence of such influence must be assessed having regard to all} the economic, organisational and legal links”164_{. According to ECJ “control exercised by} DDE´s two parent companies over its [DDE´s] strategic business decisions”165_{sufficed to}

prove “that those companies did in fact exercise decisive influence”166_{. The ECJ thus affirmed}

the GC´s interpretation of Avebe judgement that any management power truly suffices to prove

159_{As will be explained further below, the crucial point was not the terms themselves but the test used to} determine the single economic unit and thus undertaking which logically affected them.

160_{El DuPont, (no 11), para 49; Dow Chemical, (no 12), para 60}

161_{It can be noted at this point that although the ECJ did not react on the negative nature of joint control, it} approved the GC´s judgement in which the GC relied on the concept of joint control as introduced in Merger Regulation. It seems therefore that the ECJ disregarded the qualitative difference between the sole and joint control. If the control under Merger Regulation is to be reconciled with the control under the case law on parental liability then not only the negative joint control and positive sole control would be placed on the same footing but also that parent companies having joint control would have even harder times, contrary to the logic of sole and joint control, to demonstrate the opposite. This fact only backs up the conclusion being made later in the text that the test as introduced by Akzo judgement and developed in the present judgements cannot serve the purpose of determining the single economic unit.

162_{Dow Chemical, (no 12), para 60, 61} 163_{Ibid., para 64}

164_Ibid.

165_{Ibid., para 65} 166_Ibid.

Legal implications flowing from the case law on parental liability in the light of the judgements in El DuPont and Dow Chemical