Antitrust holding liability – in search for the objective of piercing the corporate veil
The prevalence of company groups in the modern economic landscape creates multiple new legal challenges. The regulations currently in force were created for autonomous entities, operating independently, in their own interest and on their own account. With the emergence of corporate groups, consisting of several, a dozen or even several hundred formally separate entities acting collectively, the fundamental principles underlying the authors of contemporary codes have been called into question. The search for specific rules for the creation, operation and, in particular, liability within so-called holdings has become one of the leading problems in many areas of law. Apart from company law, where this topic has been of great interest for many years, a particularly interesting area of regulation in this regard is competition law, located on the borderline between public and private law and harmonised at the EU level. Meanwhile, the direct impulse to undertake research on antitrust holding liability is provided by newly designed regulations introducing into the Polish legal system - following EU standards - liability for competition law violations by an entity exercising decisive influence on the direct infringer (RCL project No. UC69).
The project aims to analyse the prerequisites for antitrust liability in a holding company and to answer the question: what is the actual objective of piercing liability (i.e. both administrative and civil liability for the actions of another company within the same holding
company) in competition law, in light of the well-established decisional practice of the EU antitrust authority? This question is particularly pertinent in the context of recent case law indicating that a subsidiary can be held liable for damages caused by an infringement of competition law by its parent company. Preliminary research suggests that, contrary to the assumptions of the European Commission and the Court of Justice, this aim is by no means prevention or the need to ensure the effectiveness of the law, but rather increased repression. The project involves a precedent-setting comparison between antitrust liability and the general principles of vicarious liability (for the conduct of another) in other liability regimes. In addition to the traditional in legal sciences dogmatic method, the research will also draw extensively on the law-comparative method and the economic analysis of law. The American and German legal systems will be a particularly important point of reference.
Dissemination of research results
- On December 5, 2024, Weronika Herbet-Homenda participated in the international scientific conference – Young Legal Researchers Conference 2024, Strategizing for the future: innovative legal research in the EU and beyond – held at the University of Hasselt (Belgium). The paper presented, entitled. “Exploring the interplay between corporate law, competition law and economics: piercing the corporate veil within groups of companies in antitrust damages cases”, dealt with the issue of so-called piercing liability in holding companies (groups of companies) on the example of the case law of the Court of Justice of the European Union in the field of competition law.
- On September 27, 2024, during the National Congress of Chairs of Commercial Law, held in Olsztyn, Weronika Herbet-Homenda presented a paper entitled "The EU holding law. “EU holding law - a squaring of the circle or a song of the future?”. The presentation dealt with various strategies for the regulation of holding law and the issue of piercing liability, as well as an example of special regulations, harmonized at the Community level, in the form of rules for assigning antitrust liability.
