UK: England and Wales: competition law, undertakings and separate legal personality

A summary of the Court of Appeal decision Cooper Tire & Rubber Company Europe Ltd. v Dow Deutschland Inc. [2010] EWCA Civ 864 has recently been provided by the ICLR as part of its (free) WLR(D) Service: see here. To quote from the summary:

Once the Commission of the European Communities had found that an undertaking had participated in anti-competitive practices the undertaking could not rely on the English domestic law concept of separate corporate entity to argue that the undertaking as a whole or a parent company in the group had not participated in those practices. Where it was alleged in a claim against the defendants that representatives of those alleged to have been party to the anti-competitive behaviour had had discussions to co-ordinate that behaviour and that those discussions had led to each of the defendants co-ordinating their anti-competitive behaviour, that was sufficient to allow the claim against the defendants to continue even if none of the defendants fined by the commission was domiciled in England.

LONGMORE LJ giving the judgment of the court said that in English domestic law, which proceeded on the basis that corporate bodies are all separate legal personalities, one could not say that the act of one company in a group of companies, all controlled by a holding company, was automatically the act of any other company in that group. The position in EU law was however, different at least in the area of competition law and alleged breaches of art 81EC of the EC Treaty [now Article 101 of the Treaty of the Functioning of the European Union, see here (pdf)]. What concerned EU law was the activity of 'undertakings' which might comprise a number of separate corporate entities. The question under art 81EC was whether an 'undertaking' had participated in anti-competitive practices and it would not avail the undertaking to say that because a corporate entity which was part of the undertaking was a party to anti-competitive practices, either the undertaking as a whole or a parent company in the group did not participate in those practices. Otherwise evasion of art 81EC would be too easy".