Onscreen cover – Alternative 5 Joint and several liability for cartel fines: lessons from Gigaset and Siemens Austria 73 TH LUNCH TALK OF THE GCLC Winfred Knibbeler, 19 March 2015

Onscreen slide Contents Obligations to contribute to the payment of fines What will determine the allocation of fines before national courts? Difference between contribution claims for fines and damages claims What constitutes ”share of the responsibility” (fines) / “share of the harm” (damages)? 2

Onscreen slide Obligations to contribute to the payment of fines Exceptional cases if the economic unit that had participated in the violation no longer exists when the decision is adopted. Only relevant in the absence of contractual risk allocation. Need for legal certainty to determine the share of the fine (AG Mangozzi, para. 86). After Siemens AG Österreich role of national courts to determine shares. BGH emphasizes individual share of responsibility, rejects presumption of parents’ profit. 3

Onscreen slide What will determine the allocation of fines before national courts? Proposed amendment of Regulation 773/2004, article 16(a): leniency statements and settlement proposals can be used in national courts in cases on allocation between cartel participants of a fine. Obligation for the Commission to provide information that may be relevant for the purpose of determining the shares of the fine. Degree of responsibility, duration? Relation with decision and role of article 16 Regulation 1/2003? Profit: undefined concept and rejected by BGH. Centre of gravity within the group of sales. 4

Onscreen slide Difference between contribution claims for fines and damages claims Leniency statements and settlement submissions will not be provided to national courts for using actions for damages, article 26(a) cooperation notice and para. 39 settlement notice, article 6(6) Directive 2014/104/EU (Damages Directive). Litigation in relation to damages claims relates to external liability. Joint and several liability of both parent and subsidiary for damages is topic of significant litigation in member states: TenneT/ABB. Article 11 Damages Directive may not provide definitive answers. 5

Onscreen slide What constitutes ”share of the responsibility” (fines) / “share of the harm” (damages)? Risk of diverging answers by national courts both in contribution litigation for fines and damages. Need for uniform approach by national courts: (i) to facilitate contractual allocation in case of M&A, (ii) to facilitate settlements under article 19 of the Damages Directive and (iii) to preserve the attractiveness of leniency programmes under article 11 of the Damages Directive. Most objective and efficient criterium: sales volumes on the basis of which damage is quantified or fines have been imposed. This could work both for external liability and contribution claims. Different solutions needed for umbrella claims, such as pro rata criteria. 6

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