Abstract
The article concerns the question of the solidarity of fines imposed by the European Commission in competition cases. The solidarity of fines (the European Commission and the European Court of Justice use term „jointly and severally“, which id inaccurate) is about using a private law notion in public law liability.
This is current practice in EU law but not in national law. There is no jurisprudence concerning the application of this notion in public law liability.
The first judgments which try to develop this question are the General Court’s decisions in the AI G cartel. According to this ruling, the Commission’s decision must clearly specify which company pays what sum and if not, a subsidiarity rule must be applied to state who pays what amount.
Each liable company has the duty to pay an equal share („decision attributes that infringement to them in equal measure“, states Alstom, T-121/07, paragraph 215). This subsidiarity rule originates from private law, which is a common law serving the public law if the public law has no special rule of its own.
There is a narrow relation with a notion of undertaking in EU competition law. An undertaking has no legal personality, thus the Commission must impose the fine only on companies.
An appeal was introduced against these decisions and we await the Court of Justice’s judgement.