Edited by Mel Marquis and Roberto Cisotta
Chapter 6: Dura lex sed lex: the parent-subsidiary relationship in EU antitrust law and the AEG Telefunken presumption – independence of the EU legal system, effectiveness of competition law and protection of fundamental rights
The increasingly frequent reference to the protection of fundamental rights in the application of EU antitrust law is a trend that has grown significantly in parallel with the reforms brought about by Regulation 1/2003. The application of fundamental rights to antitrust law is explained by several factors, including for example, the increasingly harsh penalties imposed for violations of antitrust law; the tensions that arise from the Commission’s multiple roles; and the introduction of Article 6(2) TEU, as amended by the Lisbon Treaty, and the binding nature of the EU Charter of Fundamental Rights. The greater attention being given to fundamental rights is evident in the development of the application of the AEG Telefunken presumption, whereby a parent company may be penalized for the antitrust infringements of its wholly-owned subsidiary on the ground that the parent and the subsidiary constitute a single economic entity, and hence a single ‘undertaking’. Recently, the Court of Justice has confirmed the lawfulness of that presumption. However, increasing attention is now given to the adequacy of the Commission’s reasoning, particularly when the Commission rejects arguments made by parent companies to rebut the presumption. These developments suggest that the growing importance of fundamental rights protection may under certain conditions temper the principle of the effectiveness of EU competition law. The reform of Regulation 1/2003 has enabled the Commission to focus its enforcement mainly against cartels.
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