Case C‑724/17

Vantaan kaupunki

v

Skanska Industrial Solutions Oy and Others

(Request for a preliminary ruling from the Korkein oikeus)

 Judgment of the Court (Second Chamber), 14 March 2019

(Reference for a preliminary ruling — Competition — Article 101 TFEU — Compensation for the damage caused by a cartel prohibited by that article — Determination of the undertakings liable to provide compensation — Succession of legal entities — Concept of ‘undertaking’ — Economic continuity test)

1.        Agreements, decisions and concerted practices — Prohibition — Direct effect — Right of individuals to claim compensation for damage suffered — Detailed rules governing the exercise of that right

(Art. 101(1) TFEU)

(see paragraphs 24-27, 43, 44)

2.        Agreements, decisions and concerted practices — Prohibition — Direct effect — Right of individuals to claim compensation for damage suffered — Determination of the entity which is required to provide compensation for damage suffered — Application of EU law — Undertaking — Article 11(1) of Directive 2014/104 on certain rules governing actions for damages under national law — Undertakings jointly and severally liable — Irrelevant

(Art. 101 TFEU; European Parliament and Council Directive 2014/104, Art. 11(1))

(see paragraphs 28-35)

3.        Agreements, decisions and concerted practices — Prohibition — Direct effect — Right of individuals to claim compensation for damage suffered — Determination of the entity which is required to provide compensation for damage suffered — Undertaking — Concept — Economic unit — Entity consisting of several persons, natural or legal — Restructuring of an undertaking — Legal person responsible for the operation of the undertaking at the time of the infringement — Disappearance through absorption by another undertaking — Attribution of liability to the acquirer — Whether permissible — Conditions

(Art. 101 TFEU)

(see paragraphs 36-40)

4.        Agreements, decisions and concerted practices — Prohibition — Direct effect — Right of individuals to claim compensation for damage suffered — Determination of the entity which is required to provide compensation for damage suffered — Undertaking — Existence of a situation of economic continuity — Case-law developed in a context in which the Commission imposes fines — Whether applicable to an action for damages

(Art. 101 TFEU)

(see paragraphs 41-47)

5.        Agreements, decisions and concerted practices — Prohibition — Direct effect — Right of individuals to claim compensation for damage suffered — Determination of the entity which is required to provide compensation for damage suffered — Undertaking — Company which participated in the infringement economically identical to the acquiring company

(Art. 101 TFEU)

(see paragraphs 48-51, operative part)

6.        Questions referred for a preliminary ruling — Interpretation — Temporal effects of judgments by way of interpretation — Retroactive effect — Limitation by the Court — Conditions — Importance for the Member State concerned of the financial consequences of the judgment — Risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith — Individuals and national authorities led to adopt practices which do not comply with EU law — Conduct of other Member States or the Commission which may have contributed to the uncertainty — Conditions not satisfied

(Art. 267 TFEU)

(see paragraphs 54-58)

Résumé

In the judgment in Skanska Industrial Solutions and Others (C‑724/17), delivered on 14 March 2019, the Court ruled on a request for a preliminary ruling concerning the provisions of the Treaty relating to cartels and held that, in a case in which all the shares in the companies which participated in a cartel were acquired by other companies which have dissolved the former companies and continued their commercial activities, the acquiring companies may be held liable for the damage caused by the cartel in question.

In the present case, a cartel was set up in Finland between 1994 and 2002. That cartel agreed on dividing up contracts, prices and tendering for contracts, covered the whole of that Member State and was also liable to affect trade between Member States. Between 2000 and 2003, the defendant companies acquired all the shares in several cartel participants, which they then wound up following voluntary liquidation procedures. By judgment of 29 September 2009, the Supreme Administrative Court of Finland imposed fines on the cartel participants for infringement of the Finnish law on restrictions of competition and of the provisions of the Treaty relating to cartels. On the basis of that judgment, the Finnish city of Vantaa sought damages from the acquiring companies for the damage caused by the cartel but was denied those damages on the ground that the rules on civil liability in Finnish law provide that only the legal entity that caused the damage is liable.

By its first and second questions, the referring court asked, in essence, whether the provisions of the Treaty relating to cartels must be interpreted as meaning that, in a case such as that at issue in the main proceedings, the acquiring companies may be held liable for the damage caused by that cartel.

The Court held that the determination of the entity which is required to provide compensation for damage caused by a cartel is directly governed by EU law. Since the liability for damage caused by infringements of EU competition rules is personal in nature, the undertaking which infringes those rules must answer for the damage caused by the infringement. The entities which are required to compensate for the damage caused by a cartel or practice prohibited by Article 101 TFEU are the undertakings, within the meaning of that provision, which have participated in that cartel or that practice.

The concept of an ‘undertaking’, within the meaning of Article 101 TFEU, covers any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed, and designates an economic unit even if in law that unit consists of several persons, natural or legal.

Therefore, when an entity that has infringed EU competition rules is subject to a legal or organisational change, that change does not necessarily create a new undertaking free of liability for the conduct of its predecessor that infringed those rules, when, from an economic point of view, the two are identical. If the undertakings responsible for damage caused by such an infringement could escape liability by simply changing their identity through restructurings, sales or other legal or organisational changes, the objective pursued by that system and the effectiveness of those rules would be jeopardised.

In the present case, it appears that there is economic continuity between the acquiring companies, on the one hand, and the companies which participated in the cartel in question, on the other. The acquiring companies have therefore assumed the liability of those latter companies for the damage caused by the cartel in question.