| Tittel: | Hvem bærer ansvaret for konkurrenceretlige og statsstøtteretlige krav efter en virksomhedsoverdragelse? | | Ansvar: | Bianca Britt Nielsen | | Forfatter: | Nielsen, Bianca Britt  | | Materialtype: | Artikkel - elektronisk | | Signatur: | Nordisk tidsskrift for Selskabsret | | Utgitt: | København : DJØF Forlag, 2021 | | Omfang: | S. 46–61 | | Serie: | Nordisk tidsskrift for Selskabsret ; 2/2021 | | Innhold: | RESUME/UDDRAG
The concept of an undertaking plays an important role in determining who can be imposed either a fine for an infringement of TFEU Art. 101(1)/102 or a reimbursement claim of state aid granted contrary to TFEU Art. 108(3). These fines and reimbursement claims must as a rule be imposed on the natural/legal person(s), who operated the undertaking at the time, when EU competition law was infringed, or when the unlawful state aid was granted. If the undertaking subsequently has been sold in whole or in part, the natural/legal person(s), who have bought all or part of the company, may, however, in exceptional circumstances be held liable.
Firstly, the article analyses and compares the criteria of EU law that determine, who – after an asset sale or a share sale – is liable for a fine or a reimbursement claim and illustrates the criteria in figures. It is shown that the legal position prior to a sale is parallel between fines and reimbursement claims, since the natural/legal person(s), who operated the undertaking, which infringed Art. 101(1)/102 or received state aid in violation of Art. 108(3), is liable. However, this parallelism partly ceases if the undertaking is sold. A universal criterion is that the buyer must assume (the majority of) the undertaking, but the additional criteria differ in conformity with the purpose of a fine and a reimbursement claim respectively.
Secondly, the article emphasizes how these criteria of EU law has affected Danish law due to the ECN+ Directive, which requires, among other things, all EU Member States to apply the criteria of EU law, when imposing fines for infringements of TFEU Art. 101(1)/102. It is shown that the implementation of the directive has had the significant consequence that buyer liability is now more likely than it has previously been. The ECN+ Directive does not require the implementation of the criteria of EU law regarding who should be imposed a reimbursement claim of state aid granted contrary to TFEU Art. 108(3), but arguments are put forward in favor for why the EU law requirements even so will be used in Danish Law instead of the current criteria. | | Del av verk: | Nordisk tidsskrift for selskabsret 2/2021 |
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