The unsung harmony of Sumal and the Akzo line of case law

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The article offers a well-articulated and innovative interpretation of the CJEU’s famous Sumal judgment, based on an in-depth analysis of the CJEU’s case law on the notion of undertaking. In contrast to almost all other publications dealing with this seminal judgment, the article convincingly argues that Sumal neither changes nor contradicts the previous case law of the CJEU and follows “in perfect harmony” the CJEU’s Akzo case law. While this may sound surprising at first glance – given that Sumal is usually seen as a paradigm shift from parental to daughter liability – the article affirms that the CJEU has in fact stayed true to the dogmatic principles developed throughout its previous case law. In other words, the article claims that Sumal is not so much of a paradigm shift but follows the CJEU’s previous case law. In order to show this, the article proceeds in two steps. First, the article argues that one of the allegedly most “revolutionary” aspects of Sumal – one company can be part of different economic units – had already been established previously. The author recalls that dating back to the 1970s, the CJEU has always held that an undertaking constitutes a single unit that pursues a specific economic activity. Accordingly, he argues that the notion of undertaking must be understood as a dynamic and market-related concept, not as a concept merely based on formal structural links such as shareholdings or control. Thus, where a company, be it a parent company or a subsidiary, is involved in more than one economic activity, it can also form part of more than one economic unit. Second, the article comprehensively sets out why decisive influence is not a prerequisite for the attribution of liability, but rather for establishing an economic unit. Once an economic unit has been established, all legal entities forming part of it can be held jointly and severally liable for any infringement committed by the economic unit as such, irrespective of whether they had decisive influence over the specific legal entity involved in the conduct amounting to an infringement of Article 101 TFEU. Sumal fleshes out the allocation of liability within such economic unit.