The question under which circumstances an undertaking is liable for its own competition law infringement – not to mention the liability for infringements committed by an affiliated undertaking – is of invaluable practical importance. From the early days of European competition law, there has been an interesting legal relationship between the single economic entity as the addressee of EU competition law and the respective entities under national corporate laws. Legend has it, businesses in some European jurisdictions can avoid fines by way of corporate restructuring, whilst in other jurisdictions this is not an option. The present contribution traces the developments in the EU and in Germany during recent years with special regard to the so-called German sausage gap – a once well-known and much-exploited lacuna that helped shelter companies from liability through specific corporate restructuring.

Recent literature on common ownership has employed econometric findings on the correlation between parallel holdings and prices on specific product markets to support policy claims directed to intervene in the investment strategies of the worlds largest investment corporations. Regardless of the validity of such econometric findings, direct intervention in the investment strategies of large investment management corporations may produce a series of unwanted negative repercussions on the positive externalities that are correlated to the presence of parallel holdings (e.g. enhanced pursuance of ESG objectives) without actually sorting out the expected pro-competitive effects – because of the presence of other co-causation factors that determine price increases. Sound policy interventions should also consider the larger picture (concentration on the product markets, concentration on the financial services market, status of governance practices and policies and finally also geopolitical variables) before embarking in any policy strategy in this field.

Since roughly 2000, the EU Commission’s approach to competition analysis has changed, using a more economics-focused methodology, the so-called more economic approach (MEA). This chapter discusses the MEA, and its application to two crises and a sustainability/animal welfare initiative. These illustrate the use of the MEA to analyse and ultimately condemn such practices. These cases provide evidence that competition authorities have ended their tolerance for such schemes. Now, with the MEA, all such schemes are strictly analysed using the lens of consumer welfare. This of course has an advantage. Undertakings cannot ‘crisis-wash’ their behaviour, i.e. ‘dress up’ otherwise anti-competitive practices as ‘industrial crises’ to disguise a pernicious cartel. But the downsides of this new approach are that broader social concerns cannot be taken into consideration to the degree that they were in the past and the new approach may not be consistent with other goals of the EU (linked to competition via TFEU 11 and TEU 3(3)), or to other elements of UK legal order.

This chapter outlines the relevant provisions of the EU (and Member State) competition regimes. The purpose of this is to describe the legal architecture by which agreements among competitors and competitive practices are evaluated. As the EU’s competition provisions do not exist in isolation from other Treaty provisions, those that have a bearing on how the competition provisions are interpreted are also described. This provides a background for the argument of the remainder of the book.

Past practice (in both the EU and UK) took into account non-economic considerations in assessing agreements among competitors and mergers – particularly in times of economic crisis. This included a wide scope for collaboration among competitors and (in the UK) extensive scope for the use of public policy considerations to otherwise override the judgment of merger control authorities. This chapter suggests that although the various regimes previously relaxed competition law in the face of crises, this was a mistake. It examines Depression-era responses (including the US experience) and modern cases (e.g. Synthetic Fibres, the oil crisis and early views on the environment and sustainability) to illustrate the argument. This chapter examines the 1980s and 1990s crisis cartels and other responses to industrial downturn. In the cases of crisis cartels, the competition authorities interpreted the rules to permit industry-wide downsizing plans that alleviated some of the socio-economic consequences of plant closures (e.g. sudden increases in unemployment) notwithstanding that such agreements involved agreed upon output restrictions – a typical manifestation of a cartel.

Nuno Castro Marques presents the Portuguese competition law framework. Portugal was one of those European countries opting to introduce a misdemeanour law, inspired by the German Ordnungswidrigkeit law, but this has now evolved a long way. EU and Portuguese competition laws establish the same potential sanction for all competition infringements: a fine up to 10% of the undertaking turnover. Not only companies but also natural persons may be liable for competition law infringements, and fines applicable to natural persons can go up to 10% of their annual income. Portuguese competition law is fully aligned with the European framework, with the Portuguese Competition Authority (PCA) armed with strong investigation powers, an experienced leniency regime and the full set of mechanisms for speeding up enforcement, such as the settlement or commitment procedures. The results are visible, with general deterrence also making an important contribution, and whenever the PCA adopts a sanctioning decision, especially in cartel cases, it makes front-page news. That was recently the case with a banking cartel, where fourteen banks were fined for exchanging sensitive business information and even the Parliament felt the need to openly condemn the situation in public hearings.

This chapter is a scholarly attempt to identify the purpose of private enforcement in EU competition law. Section 2 presents US antitrust law as the model where deterrence has a predominant role in private enforcement and which has served as a source of inspiration but not a role model for EU competition law. Section 3 presents the purpose-setting of EU competition law at the intersections of three aims: effective remedy in terms of in integrum restitutio, fundamental rights and public policy. Section 4 defines the limits of private enforcement’s deterrent function in EU competition law. The chapter’s central argument is that while private enforcement has multiple purposes in EU competition law, it represents an idiosyncratic compromise between policy-oriented deterrence and the traditional notions of civil law (full compensation, prohibition of unjust enrichment). It is demonstrated that while serving a public policy purpose and making use of the grey zone between compensatory and super-compensatory damages, EU “private competition law” does not go beyond that and remains within the confines of “compensation”. The fact that it is the deterrent side-effects that make private enforcement relevant for EU competition law and subject to special legislative attention does not call into question its compensation-oriented DNA.

The function of EU competition law is seemingly apparent: to prohibit cartels amongst firms and combat the abuse of positions of economic dominance in order to ensure effective competition and, eventually, to maximise consumer welfare. What is less apparent are the more covert socio-economic ordering effects of this externally imposed legal system on institutions within EU Member States that may historically/culturally have organised economic sectors upon the basis of social logics that do not necessarily accord with the centrality of competition and its accompanying logics as a principle of social organisation. This may apply in particular to economic sectors that have historically been organised to serve producerist objectives or interests (an orientation of the state on the supply side of a market). A (economic) consumerist orientation is, by contrast, focussed on purposive rights and interests on the demand side of the market-in particular, primarily as an interest in competitive prices and choice for consumers. This chapter discusses this potential clash of organisational logics by reviewing how the structure and application of EU competition law may tilt EU Member States from producerist towards consumerist socio-economic orientations. It shall do so upon the basis of a critical reflection of attempts by the European Commission to “liberate” the liberal professions and more recent examples in The Netherlands that demonstrate how EU competition law may install a logic of consumer welfare as a primary principle of social organisation whenever firms co-operate to achieve public interest objectives.