Heralds of Change: In the Aftermath of Skanska (C-724/17) and Sumal (C-882/19)

Abstract

The Court of Justice of the European Union (CJEU) can be placed at the origins of the pan-European awakening of private enforcement of EU competition law. The CJEU has, in a steadfast and unwavering manner, advocated for the rights of victims of competition law infringements, elevating cartel damages proceedings from a rare sight to a well-established phenomenon. In its judgment Vantaan kaupunki v. Skanska Industrial Solutions Oy and others (Skanska), the CJEU ruled that the circle of persons liable for the harm resulting from an anticompetitive behaviour is to be determined according to the concept of undertaking as referred to in Art. 101 of the Treaty on the Functioning of the European Union (TFEU). In Sumal v. Mercedes Benz Trucks Espana (Sumal) the Court clarified under which circumstances distinct legal entities within a group of companies form one single undertaking and are thus to be made the defendant in cartel damages proceedings. The CJEU’s judgments in Skanksa and Sumal mark a certainly provisional climax in the evolution of private enforcement of EU competition law. This article aims to depict the conceptual backbone of both judgments and to explore possible consequences in regard to liability within groups of companies.