ECLI:EU:C:2026:805

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OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 1 October 2026 (1)

Case C‑347/25

Zapp Precision Metals GmbH,

Zapp AG

KU,

joined parties:

AIG Europe S.A.,

Bundeskartellamt

(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))

( Reference for a preliminary ruling – Competition – Article 101 TFEU – Fine imposed by the national competition authority – Action for damages filed by the sanctioned undertaking against a member of its management body – Effective, proportionate and dissuasive fines )

I. Introduction

1. In the present case the Court is invited to consider whether Article 101 TFEU precludes an undertaking that has been fined for having infringed that provision from seeking compensation from its former managing director, who participated in that infringement on behalf of that undertaking, that compensation corresponding to the full amount of the fine.

2. It may be tempting to answer that Article 101 TFEU does not preclude such an action. At the end of the day, an undertaking can only act through the actions of humans. (2)

3. However, by focusing on the scope of protection afforded by Article 101 TFEU and on the need to ensure the full effectiveness of that provision, I propose that the Court hold that that provision precludes such an action.

II. Legal framework

A. European Union law

1. Regulation (EC) No 1/2003

4. Article 23(2) and (3) of Regulation (EC) No 1/2003 (3) is worded as follows:

‘2. The [European] Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:

(a) they infringe Article [101] or Article [102 TFEU];

…

For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year.

…

3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’

2. Directive (EU) 2019/1

5. According to Article 13(1) of Directive (EU) 2019/1, (4) ‘Member States shall ensure that national administrative competition authorities may either impose by decision in their own enforcement proceedings, or request in non-criminal judicial proceedings, the imposition of effective, proportionate and dissuasive fines on undertakings and associations of undertakings where, intentionally or negligently, they infringe Article 101 or 102 TFEU.’

B. German law

6. Paragraph 43 of the Gesetz betreffend die Gesellschaften mit beschränkter Haftung (Law on Limited Liability Companies; ‘the GmbHG’), entitled ‘Liability of managing directors’, reads as follows:

‘(1) Managing directors are required to conduct the company’s affairs with the due care of a prudent businessperson.

(2) Managing directors who act in breach of the duties incumbent upon them are jointly and severally liable to the company for any damage suffered.’

7. Paragraph 93 of the Aktiengesetz (Law on Public Limited Companies; ‘the AktG’), entitled ‘Duty of care and liability of members of the management board’, provides:

‘(1) In conducting the company’s affairs, the members of the management board are to exercise the due care of a prudent manager complying faithfully with the relevant duties. …

(2) Members of the management board who fail to fulfil their duties are liable as joint and several debtors to compensate the company for any damage resulting from their actions. In the event of a dispute as to whether they have exercised the due care of a prudent manager complying faithfully with the relevant duties, the burden of proof lies with them. If the company takes out insurance to cover a member of the management board against risks arising from their professional activities on behalf of the company, the insurance policy is to provide for a deductible of at least 10% of the damage, up to a minimum of 150% of the annual fixed remuneration of the member of the management board.’

8. According to Paragraph 9 of the Gesetz über Ordnungswidrigkeiten (Law on Administrative Offences; ‘the OWiG’), entitled ‘Acting on behalf of another’:

‘(1) Where a person acts

… as a body authorised to represent a legal person or as a member of such a body, … any law under which special personal attributes, relationships or circumstances (specific personal characteristics) form the basis of sanctioning also applies to the representative if these characteristics do not indeed pertain to him or her, but to the person represented.’

9. Paragraph 30 of the OWiG, entitled ‘Fines imposed on legal persons and associations of persons’, provides:

‘(1) Where a person acting

… as a body authorised to represent a legal person or as a member of such a body … has committed a criminal or administrative offence, as a result of which the obligations incumbent on the legal person or association of persons have been contravened or that legal person or association of persons has been enriched or was intended to be enriched, a fine may be imposed on such a legal person or association of persons.

(2) … In the case of an administrative offence, the maximum amount of the fine shall be determined on the basis of the maximum amount of the fine applicable to that administrative offence. …’

10. Paragraph 81 of the Gesetz gegen Wettbewerbsbeschränkungen (Law against Restrictions on Competition; ‘the GWB’), entitled ‘Offences giving rise to administrative fines’, provides:

‘(1) An administrative offence is committed by whoever infringes the [FEU Treaty] in the version published on 9 May 2008 (OJ 2008 C 115, p. 47), by intentionally or negligently

1. reaching an agreement, making a decision or engaging in concerted practices contrary to Article 101(1) [TFEU] or

2. abusing a dominant position contrary to the first paragraph of Article 102 [TFEU].’

11. Under Paragraph 81c of the GWB, entitled ‘Amount of administrative fines’:

‘(1) In the cases referred to in Paragraph 81, subparagraph 1, subparagraph 2 (point 1, point 2(a) and point 5) and subparagraph 3, the administrative offence may be punishable by a fine of up to EUR 1 million. In the other cases referred to in Paragraph 81, the administrative offence may be punishable by a fine of up to EUR 100 000.

(2) In the case of an undertaking or an association of undertakings, a higher fine than that provided for in paragraph 1 may be imposed for the infringements referred to in Paragraph 81, subparagraph 1, subparagraph 2 (point 1, point 2(a) and point 5) and subparagraph 3. The fine shall not exceed 10% of the total turnover of the undertaking or association of undertakings achieved during the financial year preceding the authority’s decision.’

III. Facts, procedure and the question referred

12. Zapp Precision Metals GmbH and Zapp AG (‘the applicants’) operate in the stainless steel industry. Zapp Precision Metals (‘the first applicant’) is the operating company within the group, the shares in which are held by Zapp (‘the second applicant’) as the holding company.

13. KU (‘the defendant’) was a member of the management board of the second applicant between 1998 and 2015 and acted as its chairman from 2003 to 2015. Throughout the entire period during which he was a member of the management board of the second applicant, he was also the managing director of the first applicant. In 2015, the existing contracts between the applicants and the defendant were terminated.

14. The second applicant took out directors’ and officers’ liability insurance (‘D&O insurance’) with AIG Europe S.A. (‘the intervener’) for the benefit of the defendant and with a sum insured of EUR 25 million. According to the provisions of the insurance contract, the insurance cover does not extend to claims for compensation due to an intentional breach of duty by the insured person or to contractual penalties, administrative fines and financial penalties imposed on the insured person personally (that is to say, on the defendant).

15. Between 2002 and 2015, the defendant participated in a price-fixing agreement in his capacity as representative of the first applicant. The basic understanding between the undertakings involved was to avoid price competition or at least to reduce it significantly by implementing an industry-wide standardised pricing system consisting of a base price and surcharges for purchased and processed products, with the level of the surcharges being agreed between the participating steel manufacturers. Based on that common understanding, the first applicant used those surcharges as a basis for its contracts.

16. The Bundeskartellamt (Federal Cartel Office, Germany) conducted several investigations into the stainless steel industry, some of which involved the applicants. Following settlement proceedings, and on the basis of the facts admitted by the applicants and the defendant, by a decision dated 4 July 2018, it imposed fines of EUR 4.1 million on the first applicant and of EUR 126 000 on the defendant for an intentional infringement of point 1 of Paragraph 81(1) of the GWB and of Article 101(1) TFEU. The fines were purely punitive in nature. On discretionary grounds, the Federal Cartel Office refrained from recovering from the first applicant the financial benefit derived from the infringement. (5) Also on discretionary grounds, it discontinued the proceedings against the second applicant.

17. In the case in the main proceedings, the applicants are claiming compensation from the defendant for his involvement in the infringement of competition law. The first applicant seeks, inter alia, compensation of the full amount of the fine imposed on it and paid by it, in addition to fees and expenses. The second applicant seeks, inter alia, compensation of the costs of conducting investigations and legal advice in the amount of approximately EUR 1.144 million. The Landgericht (Regional Court, Germany) dismissed the action. The Oberlandesgericht (Higher Regional Court, Germany) dismissed the appeal lodged against that decision and granted the applicants leave to appeal on points of law before the Bundesgerichtshof (Federal Court of Justice, Germany), which is the referring court.

18. On the one hand, the referring court recalls that the defendant intentionally acted in breach of his obligations under Paragraph 43(1) of the GmbHG by participating in a price-fixing agreement prohibited under Article 101(1) TFEU on behalf of the first applicant, which he represented. The Federal Cartel Office imposed a fine on the first applicant, which it paid. The referring court thus considers that the reduction in the first applicant’s assets due to the imposition and payment of a fine constitutes damage within the meaning of Paragraph 43(2) of the GmbHG.

19. Moreover, according to the referring court, no provision of national law provides for a restriction of the company’s claim for compensation for the damage suffered as a result of a fine imposed on it due to a competition law infringement. In its view, such a claim may actually contribute to preventing competition law offences by encouraging managers to behave in a law-abiding manner.

20. Additionally, pursuant to the case-law of the referring court, the passing on of an administrative penalty (public enforcement), which is permissible under civil law (private enforcement), does not in principle give rise to an inconsistency that would be considered unacceptable in the legal order.

21. On the other hand, the referring court emphasises that corporate penalties under competition law are intended to ensure that the fines to be imposed affect the assets of those economic operators that benefit from the administrative offence in order to ensure that competition law infringements are not worthwhile and that companies are encouraged to observe the prohibitions established for the protection of effective competition. In that respect, a distinctive feature compared to other offences is that the economic gains in the case of competition law offences, which often disrupt the market economy significantly and can cause major economic damage, usually accrue to the undertaking, which justifies the threat of a severe fine, even for large undertakings. There are thus considerable reasons to believe that a claim against a member of the management body in respect of a fine imposed on the undertaking, which – depending on the amount of the fine and the enforceability of the claim for compensation – may, in economic terms, lead to a complete or partial exoneration of the undertaking, runs counter to the aforementioned objectives of competition law penalties.

22. The referring court thus considers that a restrictive interpretation of national law required by Article 101 TFEU cannot be ruled out.

23. In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Does Article 101 TFEU preclude a provision in national law under which a legal person on which a national competition authority has imposed a fine for an infringement of Article 101 TFEU committed by its management body may claim compensation from the management body for the damage the legal person has suffered as a result?’

24. Written observations were submitted by the applicants, the defendant, the intervener, the German Government, the Federal Cartel Office and the Commission. The same parties participated in the hearing held on 17 June 2026.

IV. Assessment

A. Preliminary remarks

25. The present case lies at the crossroads between public and private enforcement of EU competition law. In fact, through an action for damages, the first applicant seeks, in practice, to recover the amount of the fine imposed on it by a national competition authority.

26. While private enforcement is usually seen as a complement to public enforcement, both of which contribute to the effective application of Articles 101 and 102 TFEU, the present case demonstrates that that premiss may not always hold true.

27. It is therefore my contention that the Court’s well-established case-law granting to any individual the right to claim damages for loss caused by a contract or by conduct liable to restrict or distort competition (6) needs to be clarified, in order to specify that it does not cover the financial loss resulting from the payment of a fine for infringement of Article 101 TFEU.

28. Rightly perceiving that that question is yet to be settled, the referring court in essence asks whether Article 101 TFEU is to be interpreted as precluding an undertaking, on which a fine for infringement of that provision has been imposed, from seeking compensation from a member of its management body for the financial loss resulting from the payment of that fine.

29. The applicants in essence argue that this is a question of national civil law, which is not determined by Article 101 TFEU. By contrast, I wish to devote a few lines to explaining that this is actually a matter of EU law (B). That will be followed by an assessment of the scope of protection afforded by Article 101 TFEU (C), which will lead to the conclusion that a claim brought by an undertaking that has infringed that provision seeking damages equivalent to a fine imposed for that infringement does not constitute the exercise of a right stemming from EU law. Such an action actually impairs the full effectiveness of Article 101 TFEU (D), irrespective of whether D&O insurance was taken out (E).

B. Is this a matter of EU law or of national law?

30. In the judgment in Courage and Crehan, the Court held that the full effectiveness of what is now Article 101 TFEU and, in particular, the practical effect of the prohibition laid down in Article 101(1) TFEU would be put at risk if it were not open to any individual to claim damages for loss caused to him or her by a contract or by conduct liable to restrict or distort competition. (7)

31. However, in the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to lay down the detailed rules governing the exercise of the right to claim compensation for the harm resulting from an agreement or practice prohibited under Article 101 TFEU, provided that the principles of equivalence and effectiveness are observed. (8)

32. In that regard, Advocates General Kokott and Wahl in particular have emphasised the need to distinguish between the existence of a claim to compensation, governed by EU law, and the detailed rules governing the exercise of the right to claim compensation, falling within the scope of procedural autonomy of the Member States. (9)

33. In the judgment in Skanska Industrial Solutions and Others, the Court recognised that the determination of the entity which is required to provide compensation for damage caused by an infringement of Article 101 TFEU is directly governed by EU law. (10) Therefore, national rules on the matter must not undermine the full effectiveness of that provision.

34. The present case requires, in essence, a determination of who can rely on the right to seek compensation due to an infringement of Article 101 TFEU, as well as the type of damages that can be compensated. (11)

35. As I will explain further below, these matters are in fact directly governed by EU law, and there are compelling reasons for that. (12) Given the circumstances of the present case, it is necessary, at the outset, to assess whether Article 101 TFEU, from which the Court – in order to ensure the full effectiveness of that provision – inferred the right to seek compensation, (13) grants to an undertaking that has been fined for infringing that provision a right to seek compensation for the financial loss suffered from the payment of that fine. (14) If that is not a right granted by EU law, it must then be assessed whether that entitlement impairs the full effectiveness of Article 101 TFEU.

C. The scope of protection afforded by Article 101 TFEU

1. The undertaking as the perpetrator of competition law infringements

(a) Concept

36. It is clear from the wording of Article 101(1) TFEU that the authors of the Treaties chose to use the concept of an ‘undertaking’ to designate the perpetrator of an infringement of the prohibition laid down in that provision. (15)

37. Moreover, the EU legislature used that concept of ‘undertaking’ in Article 23(2) of Regulation No 1/2003 to define the entity on which the Commission may impose a fine in order to penalise an infringement of EU competition rules. (16)

38. Furthermore, it is settled case-law that EU competition law refers to the activities of undertakings. (17)

39. That concept of an undertaking covers any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed, and thus defines an economic unit even if in law that economic unit consists of several persons, natural or legal. That economic unit consists of a unitary organisation of personal, tangible and intangible elements, which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind in Article 101(1) TFEU. (18)

40. Where such an entity infringes the competition rules, it must, in accordance with the principle of personal liability, answer for that infringement. (19)

41. Against that background, pursuant to Article 23(2) of Regulation No 1/2003, the liability of undertakings can only be established if the infringement of EU competition law has been committed intentionally or negligently. (20) As stressed by the referring court in the order for reference, their liability is thus personal and not vicarious. (21)

42. In the same vein, it follows from Directive 2014/104/EU, (22) and in particular from point 2 of Article 2 thereof, (23) that the EU legislature defined the ‘infringer’ as being ‘an undertaking or association of undertakings which has committed an infringement of competition law’. (24)

43. Precisely in relation to private enforcement of EU competition law, the Court has held that, since the liability for damage caused by infringements of EU competition rules is personal in nature, the undertaking which infringes those rules must answer for the damage caused by the infringement. Thus, the entities which are required to compensate for the damage caused by a cartel or practice prohibited by Article 101 TFEU are the undertakings, within the meaning of that provision, which have participated in that cartel or that practice. (25)

44. It thus follows that the undertaking, within the meaning of Article 101 TFEU, is the relevant concept in the context of both public and private enforcement. (26)

45. In that context, I shall refer to a specific feature of German law on administrative offences, mentioned by the Federal Cartel Office at the hearing. It was explained that in administrative proceedings leading to the imposition of a fine, the authority must first establish the liability of a natural person. If that natural person holds a prominent position within a legal person, the liability of the latter may be established. In essence, it is the liability of the natural person that triggers the liability of the legal person. (27)

46. It thus follows that, under German law, since the infringer is primarily the natural person, that being a requirement then to initiate proceedings and impose a fine on the legal person, it is understandable that the fine paid by the latter constitutes a loss in the context of a damages claim, which is in principle attributable to the natural person acting on behalf of the legal person. By contrast, under EU law, the perpetrator of the infringement is an undertaking (or an association of undertakings). Moreover, the latter is also the entity responsible for compensating for the damage caused by a practice prohibited by Article 101 TFEU. The undertaking cannot be simultaneously the tortfeasor and the injured party.

(b) Imputation of acts of employees to the undertaking

47. Natural persons working for, providing services to or representing an undertaking are not – themselves and for any of those reasons – undertakings. By contrast, for the duration of the corresponding relationship with the undertaking, they form part of the economic unit comprised by the latter. (28)

48. For that reason, pursuant to established case-law, for the Commission to impose fines on undertakings or associations of undertakings, it is not necessary for there to have been action by, or even knowledge on the part of, the partners or principal managers of the undertaking concerned; action by a person who is authorised to act on behalf of the undertaking suffices. (29)

49. Thus, the Court has declared that in order to find that an agreement is restrictive of competition, it is not necessary to demonstrate personal conduct on the part of a representative authorised under the undertaking’s constitution or the personal assent, in the form of a mandate, of that representative to the conduct of an employee of the undertaking who has participated in an anticompetitive meeting. (30)

50. For the purposes of finding an infringement of EU competition law, any anticompetitive conduct on the part of an employee is thus attributable to the undertaking to which he or she belongs and that undertaking is, as a matter of principle, held liable for that conduct. (31)

51. It follows from the foregoing that, by identifying the undertaking as the perpetrator of competition law infringements, the EU legislature specifically intended to attribute responsibility for those actions to the undertaking and not to the natural persons that work for or represent it.

52. Albeit in a different context, I believe that the judgment in Lietuvos notarų rūmai and Others further supports the assertion that individual members of a given entity are not to be held liable for a competition law infringement committed by that entity.

53. The case that gave rise to that judgment revolved around the adoption by the Presidium of the Lietuvos notarų rūmai (Lithuanian Chamber of Notaries) of certain rules aimed at clarifying the methods for calculating notaries’ fees. The national competition authority classified those ‘clarifications’ as decisions of an association of undertakings contrary to Article 101(1)(a) TFEU. (32)

54. The Presidium of the Chamber of Notaries was that chamber’s governing body and was made up of notaries that formed part of that association of undertakings. Pursuant to the Statute of that chamber, the decisions of the Presidium were binding, with the result that they were to be regarded as decisions of the Chamber of Notaries itself. (33) Nevertheless, the national competition authority had imposed individual fines on the notaries because of their status as members of the Presidium at the dates on which the clarifications were adopted. (34)

55. In answering whether, in the light of Article 101 TFEU, those individual fines could be imposed, the Court found that the principle of personal liability, which requires that only the entity which is the perpetrator of an infringement of the competition rules should be penalised, precludes such an approach, since the notaries who were members of the Presidium of the Chamber of Notaries at the time when the clarifications were adopted cannot be regarded as co-perpetrators of the infringement found by the national competition authority in the main proceedings. (35)

56. It is my contention that that logic should apply to the present case by analogy. Just like the notaries who were acting in their capacity as members of the Presidium of the Chamber of Notaries, not as individual undertakings, (36) the defendant in the present case was acting as the managing director of the first applicant. (37)

2. The objectives of Article 101 TFEU

57. In order to determine whether Article 101 TFEU entitles an undertaking that has been fined for infringing that provision to seek compensation equivalent to the amount of that fine from its management body, it is further necessary to assess the objectives of that provision. (38)

58. In that regard, the Court has held that Article 101 TFEU, like the other competition rules of the FEU Treaty, is designed to protect not only the immediate interests of individual competitors or consumers but also to protect the structure of the market and thus competition as such. (39)

59. In the specific context of actions for damages resulting from an infringement of Article 101 TFEU, the Court has stressed that the law of Member States governing those actions must, in particular, take into account the objective pursued by that provision, which strives to guarantee effective and undistorted competition in the internal market, and, accordingly, prices set on the basis of free competition. (40)

60. Therefore, Article 101 TFEU in no way seeks to confer on an undertaking that has infringed that provision a right to seek compensation from a member of its management body for the financial loss resulting from the payment of the corresponding fine.

61. In that regard, the present case must be distinguished from the one that gave rise to the judgment in Courage and Crehan, in so far as the latter concerned the exercise of a right (to seek compensation) derived from EU law.

62. As a reminder, that case concerned standard forms for lease agreements of pubs, pursuant to which the tenants (including Mr Bernard Crehan) were obliged to purchase a strictly defined minimum quantity of beer exclusively from the Courage brewery at prices set by the latter. Courage brought an action for the recovery from Mr Crehan of unpaid deliveries of beer. Mr Crehan contended that the agreement was contrary to what is now Article 101 TFEU. He also counter-claimed for damages, arguing that Courage sold its beers to independent tenants of pubs at substantially lower prices than those in the price list imposed on tied tenants, that price difference reducing his profitability. (41)

63. Bearing in mind the objectives of Article 101 TFEU referred to in points 58 and 59 of the present Opinion, Mr Crehan was thus relying on a right stemming from EU law.

64. Accordingly, the Court held that Article 101 TFEU precludes the application of national legislation under which a party to an agreement restricting competition cannot claim damages from the other party for loss resulting from the performance of the agreement, on the sole ground that the claimant is a party to such an agreement.

65. Nonetheless, it must be recalled that the Court also stated that Article 101 TFEU does not preclude national law from denying a party who is found to bear significant responsibility for the distortion of competition the right to obtain damages from the other contracting party. Under a principle which is recognised in most of the legal systems of the Member States, a litigant should not profit from his or her own unlawful conduct, where this is proven. (42)

66. In circumstances such as those in the present case, the first applicant’s unlawful conduct was established by the Federal Cartel Office. That authority accordingly imposed a fine on it. As I illustrated above, under EU competition law, the liability of undertakings for an infringement of that law is personal. It thus necessarily follows that such an undertaking is not entitled to seek damages.

3. The scope of protection afforded by Article 101 TFEU in the Court’s case-law

67. Certain statements in the judgment in Otis Gesellschaft and Others suggest that, to be entitled to seek compensation for the loss caused by an infringement of Article 101 TFEU, it is not necessary that that loss fall within the scope of protection afforded by Article 101 TFEU. I thus wish to devote a few words to clarifying that point in the light of the circumstances of the present case.

68. From the outset, in the judgment in Manfredi and Others, the Court held that any individual is entitled to claim compensation for the harm suffered where there is a causal relationship between that harm and an agreement or practice prohibited under Article 101 TFEU. (43)

69. For its part, the case that gave rise to the judgment in Otis Gesellschaft and Others concerned the right of the Land Oberösterreich (Province of Upper Austria) to seek compensation from the members of a cartel in the market for lifts. Although that public body was not acting on that market, it granted subsidies for construction projects where overpriced lifts were installed. It therefore claimed that it was obliged to grant higher subsidies than if that cartel had not existed and, consequently, was unable to use that difference more profitably. (44)

70. The cartel members contested, in essence, the right of the Province of Upper Austria to request compensation for that loss, on the ground that it did not present a sufficient connection with the objective pursued by Article 101 TFEU and was thus not capable of giving rise to compensation. (45)

71. The Court reaffirmed what it had held in the judgment in Manfredi and Others, and found that any loss which has a causal relationship with an infringement of Article 101 TFEU must be capable of giving rise to compensation in order to ensure the effective application of Article 101 TFEU and to guarantee the effectiveness of that provision. (46) Therefore, it is not necessary that the loss suffered by the person concerned present, in addition, a specific connection with the ‘objective of protection’ pursued by Article 101 TFEU. (47) The Court emphasised that to hold otherwise would be to exempt the participants in a cartel from being held liable to compensate for all the loss that they could have caused. (48)

72. It is my contention that that judgment does not preclude an assessment of the scope of protection and, accordingly, of the objectives pursued by Article 101 TFEU, (49) in order to ensure that granting a right to seek compensation does not contradict those objectives and accordingly does not undermine the full effectiveness of that provision.

73. It thus follows that the case that gave rise to the judgment in Otis Gesellschaft and Others was about ensuring that the circle of potential injured parties and potential harm was not limited by provisions of national law, in order to guarantee the full effectiveness of Article 101 TFEU. In those circumstances, where the right to seek compensation stems from Article 101 TFEU and clearly bolsters the effectiveness of that provision, it is not necessary to establish, in addition, a specific connection with the objective of protection pursued by that provision. By contrast, the present case is about ensuring that the claim for compensation at issue, permitted under national law, does not run counter to the objectives of Article 101 TFEU, and therefore does not impair the full effectiveness of that provision. This will be analysed in the following section.

D. The full effectiveness of Article 101 TFEU and the practical effect of the prohibition laid down in Article 101(1) TFEU

1. Public enforcement and private enforcement are complementary

74. The Court has long seen public enforcement and private enforcement as complementary.

75. In that regard, it has held that the right for any person to seek compensation for the harm caused by an agreement or practice prohibited by Article 101 TFEU strengthens the working of the EU competition rules, since it discourages agreements or practices, frequently covert, which are liable to restrict or distort competition, by contributing to the maintenance of effective competition in the European Union. Beyond the compensation itself for the harm alleged, the establishment of such an entitlement contributes to the objective of dissuasion. That entitlement is thus capable of providing a remedy not only for the direct damage alleged to have been suffered by the person in question, but also for the indirect harm done to the structure and operation of the market, which was not able to reach full economic efficacy, in particular as regards benefits to the consumers concerned. (50)

76. The Court has thus concluded that, just as is the case for the implementation of the EU competition rules by public authorities (public enforcement), actions for damages for infringement of those rules (private enforcement) are an integral part of the system for enforcement of those rules, which are intended to punish anticompetitive behaviour on the part of undertakings and to deter them from engaging in such conduct. (51)

77. In my view, granting an undertaking the right to seek compensation equivalent to the amount of the fine imposed on it for infringing EU competition law from a member of its management body frustrates those purposes. It also produces an effect which is precisely the opposite of those which private enforcement is intended to produce. Instead of a complementary effect, such an entitlement impairs the effectiveness of the fine that had been imposed by the public authority.

78. In the present proceedings, the Commission nevertheless argues that a partial recovery of the amount of the fine would significantly reduce neither its effectiveness nor its deterrent effect. The specific amount whose recovery would be admissible would be determined on a case-by-case basis by the national judge hearing the action for damages.

79. In that regard, it must be recalled that fines for infringement of EU competition law must be effective, dissuasive and proportionate to the nature of the infringement. (52)

80. The Court has further emphasised that the effectiveness of the penalties imposed by the national or EU competition authorities on the basis of Article 103(2)(a) TFEU is a condition for the coherent application of Articles 101 and 102 TFEU. (53)

81. In the case of the Commission, those requirements are met through the application of its Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (‘the Guidelines on the method of setting fines’). (54) To my knowledge, most national competition authorities in the European Union apply comparable guidelines. (55)

82. In practical terms, the solution proposed by the Commission described in point 78 above would disregard the very principle of effective, proportionate and dissuasive fines. In fact, the national judge hearing the damages claim would be invited to ‘amend’ the amount of the fine imposed by the Commission itself or by a national competition authority.

83. Concerning the imposition of fines by the Commission, that could additionally contravene Article 16(1) of Regulation No 1/2003, which establishes that national courts cannot take decisions running counter to a decision adopted by the Commission. (56) That rule also applies when national courts hear an action for damages for loss sustained as a result of an agreement or practice which has been found by a decision of the Commission to infringe Article 101 TFEU. (57)

84. Moreover, only the EU Courts have jurisdiction to reduce the amount of a fine imposed by the Commission (Article 31 of Regulation No 1/2003). (58)

85. In my view, it thus follows that an action for damages cannot de facto encroach on a decision of the Commission or of a national competition authority imposing a fine. (59)

86. Therefore, an undertaking that has been fined for infringing EU competition law cannot rely on the financial loss resulting from the payment of that fine as a cause of action. Any claim exclusively based on the fine imposed and paid has to be raised in the context of public enforcement proceedings, either before competition authorities or, on appeal, before a court.

87. That the burden of a fine imposed on an undertaking for infringement of EU competition law cannot be subsequently offset appears to result from the judgment in X BV, (60) to which most parties intervening before the Court referred.

88. In that judgment, the Court in essence held that the possibility of deducting fully or in part the amount of a fine imposed by the Commission for infringement of EU competition law from a company’s taxable profits is capable of impairing the effectiveness of the penalties imposed under Article 103(2)(a) TFEU and therefore might compromise the coherent application of Articles 101 and 102 TFEU. (61)

89. I do not think that the tax deductibility of part of a fine – and the corresponding reduction of the State budget – was decisive in the Court’s reasoning. What appears to be decisive is that reducing the fine’s burden on the undertaking compromises its effectiveness, regardless of who else bears that burden.

2. The specificity of infringements of Article 101 TFEU

90. In the present proceedings, the Commission also argues that if it were to be accepted that an infringing undertaking could recover part of the amount of the fine from natural persons acting on its behalf, the increased deterrence in relation to those persons would compensate for the loss of deterrence vis-à-vis the undertaking.

91. In my view, that position fails to take into account the specific nature of competition law infringements and of the corresponding fines. It also blatantly contradicts the Court’s well-established case-law on the concept of the undertaking as the perpetrator of infringements of EU competition law, and therefore as the entity whose anticompetitive behaviour is to be deterred (and punished, as the case may be). (62)

92. In that regard, first, the fine is calculated with reference to the specific circumstances of the undertaking. In particular, in order to determine the basic amount of the fine, the Commission takes the value of the sales of goods or services to which the infringement relates. (63) This shows that the fine is intended to produce its effects on the relevant market and to reflect the undertaking’s position therein. That appears essential to achieve the punitive and deterrent purposes of fines. (64)

93. Moreover, where the undertaking continues or repeats the infringement, refuses to cooperate during the investigations or plays a leading role in the infringement, these are regarded as aggravating circumstances. (65) Additionally, in exceptional cases, the Commission may, upon request, take account of the undertaking’s inability to pay in a specific social and economic context. (66) Lastly, the final amount of the fine shall not, in any event, exceed 10% of the total turnover in the preceding business year of the undertaking or association of undertakings participating in the infringement, as laid down in Article 23(2) of Regulation No 1/2003. By contrast, the circumstances of a member of the management body are in no way taken into account.

94. In my view, there are two consequences of this: in the first place, as argued by several parties intervening before the Court, accepting the undertaking’s right to seek damages equivalent to the amount of the fine from a member of its management body would be in breach of the rights of defence of the latter. (67) In the second place, the way in which the fine is calculated appears to rely on the assumption that its burden would remain permanently with the undertaking.

95. Secondly, admittedly, the possibility of seeking compensation from a member of the management body for the financial loss resulting from the payment of a fine imposed on a company may be justified in other circumstances. That is also why Article 51 of Regulation (EC) No 2157/2001, (68) which is a general provision on responsibility vis-à-vis the European company (Societas Europaea; ‘SE’), (69) provides that ‘members of an SE’s management, supervisory and administrative organs shall be liable, in accordance with the provisions applicable to public limited-liability companies in the Member State in which the SE’s registered office is situated, for loss or damage sustained by the SE following any breach on their part of the legal, statutory or other obligations inherent in their duties.’

96. That may in fact be justified, inter alia, where the member of the management body acted in breach of a specific managerial duty, which nonetheless justifies a sanction being imposed on the company. (70)

97. By contrast, as stated in point 76 above, fines for infringement of EU competition law seek to punish the personal conduct of undertakings.

98. Moreover, to the extent that it has as its object or effect the prevention, restriction or distortion of competition, an infringement of Article 101 TFEU is liable to benefit the undertaking itself (its shareholders) and to reinforce its position in the relevant market. That is why the rationale behind the fine is to deprive the undertaking of the benefits of the infringement, regardless of any further possibility of recouping the excess profits.

99. Therefore, as Article 51 of Regulation No 2157/2001 shows, EU law does not preclude, in principle, a company from seeking damages from the members of its management body. That entitlement is nonetheless precluded where the damage claimed is the financial loss resulting exclusively from the payment of a fine imposed for infringement of Article 101 TFEU.

100. In any event, in accordance with a general principle of interpretation, the wording of secondary EU law must be interpreted, as far as possible, in conformity with primary law as a whole, (71) namely with Article 101 TFEU. Should the Court follow my approach, Article 51 of Regulation No 2157/2001 is thus to be interpreted as not encompassing the financial loss resulting exclusively from payment of a fine for infringement of EU competition law.

101. Thirdly, competition law infringements are not committed by one person alone. Instead, several people contribute to such an infringement, be it those responsible for hiring the management board, the compliance department that allegedly fails to put in place an effective compliance programme, those who actually take part in the anticompetitive agreement, or the employees that then implement that agreement (for example, by setting prices in accordance with the strategy defined by the cartelists). In large entities, all those roles tend to be performed by different actors. Moreover, infringements tend to result from multiple factors, such as the lack of a pro-competition culture, pressure to achieve large profits, or a market structure that is prone to collusion. That is why, in my view, the drafters of what are now Articles 101 and 102 TFEU focused on the activity of undertakings (alongside the concept of an economic unit), as that is the entity that best captures all these nuances, as well as all those potentially contributing to a competition law infringement. (72)

E. Does the existence of D&O insurance have any bearing on the answer to the question for a preliminary ruling?

102. It follows from the above that (i) Article 101 TFEU is not intended to protect the legal position of an undertaking that has been fined for infringement of that provision and that regards the amount of that fine as financial loss, (ii) such a claim would actually impair the full effectiveness of that provision and (iii) for that reason, no cause of action in the context of private enforcement may concern a fine imposed by a competition authority.

103. Consequently, my reasoning does not depend on who else, apart from the undertaking, might bear the burden of the fine: if it is not the undertaking itself, the full effectiveness of Article 101 TFEU is compromised.

104. Thus, the existence of D&O insurance, and hence the possibility that the financial burden of the fine may end up being borne by an insurance company, only reinforces the assertion that recovering the amount of the fine imposed on an undertaking is precluded by Article 101 TFEU.

105. Accordingly, my proposed reply to the question referred is that Article 101 TFEU must be interpreted as precluding an undertaking, on which a fine for infringement of that provision has been imposed, from seeking compensation from a member of its management body for the financial loss resulting exclusively from the payment of that fine.

F. Final remarks

106. The reasoning that I propose in the present Opinion does not affect the possibility of Member States imposing personal fines on members of a management body who participated in the infringement on behalf of an undertaking, which is accepted under Article 5 and Article 12(3) of Regulation No 1/2003. In fact, to the extent that it pertains to the public enforcement of EU competition law and does not shift the burden of the fine from the undertaking concerned, that is a completely different question from the one at issue in the present case.

107. Moreover, I am certainly aware that, as EU competition law currently stands, the Commission does not have the power to sanction natural persons. That would require an amendment to Regulation No 1/2003. (73) That contrasts with the legal systems of several Member States, such as the Federal Republic of Germany, where competition authorities have that power. In fact, in the present case, a EUR 126 000 fine was imposed on the defendant for his participation in the steel manufacturers cartel on behalf of the first applicant.

108. Admittedly, attributing that competence to the Commission would strengthen the effectiveness of EU competition law enforcement. However, as I hope I have demonstrated, I do not think that shifting the burden of the fine imposed on the undertaking to the natural person or persons who represented it would remedy that lack of competence. As I have argued, that would actually weaken the effectiveness of Article 101 TFEU.

109. Thus, as EU law currently stands, alternative means to ‘further enhance’ the effectiveness of EU competition law could include the imposition of a fine on an undertaking by the Commission combined with a personal fine imposed by a national competition authority. (74) Moreover, in private enforcement actions, undertakings may recover from the members of their management body the amount of damages paid to injured parties for the loss caused to those injured parties by an infringement of Article 101 TFEU. (75)

V. Conclusion

110. In the light of the foregoing, I propose that the Court answer the question referred by the Bundesgerichtshof (Federal Court of Justice, Germany) as follows:

Article 101 TFEU

must be interpreted as precluding an undertaking, on which a fine for infringement of that provision has been imposed, from seeking compensation from a member of its management body for the financial loss resulting exclusively from the payment of that fine.

1 Original language: English.

2 Judgment of the Court of Appeal (England and Wales) (Civil Division) of 21 December 2010, Safeway Stores Ltd v Twigger, 2010, EWCA Civ 1472, 2010 WL 5139374, paragraph 19.

3 Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1).

4 Directive of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (OJ 2019 L 11, p. 3).

5 See the ‘Guidelines for the setting of fines in cartel administrative offence proceedings’ of the Federal Cartel Office of 11 October 2021, paragraph 5 and note 6.

6 Judgments of 20 September 2001, Courage and Crehan (C‑453/99, ‘the judgment in Courage and Crehan’, EU:C:2001:465, paragraph 26), and of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 60). See, more recently, judgment of 4 September 2025, Nissan Iberia (C‑21/24, EU:C:2025:659, paragraph 51).

7 See point 27 of the present Opinion.

8 See the judgment in Courage and Crehan (paragraph 29), and judgment of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraph 24 and the case-law cited). See also judgment of 28 January 2025, ASG 2 (C‑253/23, EU:C:2025:40, paragraph 71 and the case-law cited).

9 Opinions of Advocate General Kokott in Kone and Others (C‑557/12, EU:C:2014:45, point 28); and in Otis Gesellschaft and Others (C‑435/18, EU:C:2019:651, point 44); and Opinion of Advocate General Wahl in Skanska Industrial Solutions and Others (C‑724/17, EU:C:2019:100, point 59).

10 Judgment of 14 March 2019, Skanska Industrial Solutions and Others (C‑724/17, ‘the judgment in Skanska Industrial Solutions and Others’, EU:C:2019:204, paragraph 28).

11 See, in the same vein, Opinion of Advocate General Kokott in Otis Gesellschaft and Others (C‑435/18, EU:C:2019:651, point 60).

12 See, in that regard, Van Gerven, W., ‘Of rights, remedies and procedures’, Common Market Law Review, Vol. 37, Issue 3, 2000, pp. 501 to 536, at p. 526.

13 See point 30 of the present Opinion. See also Opinion of Advocate General Van Gerven in Banks (C‑128/92, EU:C:1993:860, point 45).

14 It is worth quoting here Walter Van Gerven, who stated that ‘the concept of right refers … to a legal position which a person … may have … and which in its normal state can be enforced by that person against (some or all) others before a court of law by means of one or more remedies, those are classes of action, intended to make good infringements of the rights concerned, in accordance with procedures governing the exercise of such classes of action and intended to make the remedy concerned operational.’ (Van Gerven, W., footnote 12, op. cit., p. 502).

15 See the judgment in Skanska Industrial Solutions and Others (paragraph 29 and the case-law cited), and judgment of 18 January 2024, Lietuvos notarų rūmai and Others (C‑128/21, ‘the judgment in Lietuvos notarų rūmai and Others’, EU:C:2024:49, paragraph 113).

16 Judgment of 6 October 2021, Sumal (C‑882/19, ‘the judgment in Sumal’, EU:C:2021:800, paragraph 39 and the case-law cited).

17 See the judgment in Skanska Industrial Solutions and Others (paragraph 30 and the case-law cited).

18 See the judgment in Sumal (paragraph 41 and the case-law cited).

19 See the judgment in Lietuvos notarų rūmai and Others (paragraph 114 and the case-law cited).

20 For liability established by a national competition authority, see Article 13(1) of Directive 2019/1.

21 See also, in the same vein, judgment of the Court of Appeal (England and Wales) (Civil Division) of 21 December 2010, Safeway Stores Ltd v Twigger, 2010, EWCA Civ 1472, 2010 WL 5139374, paragraph 20.

22 Directive of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1).

23 See also Article 1(1) of Directive 2014/104.

24 The judgment in Sumal (paragraph 40).

25 See the judgment in Skanska Industrial Solutions and Others (paragraphs 31 and 32).

26 See the judgments in Skanska Industrial Solutions and Others (paragraph 47), and in Sumal (paragraph 38).

27 See, to that effect, judgment of 5 December 2023, Deutsche Wohnen (C‑807/21, EU:C:2023:950, paragraph 20), referring to Paragraph 30 of the OWiG, which is applicable to the present case (see point 9 of the present Opinion).

28 Judgments of 16 September 1999, Becu and Others (C‑22/98, EU:C:1999:419, paragraph 26), and of 21 July 2016, VM Remonts and Others (C‑542/14, EU:C:2016:578, paragraph 23).

29 Judgments of 7 June 1983, Musique Diffusion française and Others v Commission (100/80 to 103/80, EU:C:1983:158, paragraph 97), and of 7 February 2013, Slovenská sporiteľňa (C‑68/12, EU:C:2013:71, paragraph 25).

30 Judgment of 7 February 2013, Slovenská sporiteľňa (C‑68/12, EU:C:2013:71, paragraph 28).

31 Judgment of 21 July 2016, VM Remonts and Others (C‑542/14, EU:C:2016:578, paragraph 24).

32 The judgment in Lietuvos notarų rūmai and Others (paragraphs 26 to 29).

33 The judgment in Lietuvos notarų rūmai and Others (paragraphs 116 and 119).

34 The judgment in Lietuvos notarų rūmai and Others (paragraph 120).

35 The judgment in Lietuvos notarų rūmai and Others (paragraph 121).

36 This is despite the fact that the notaries were considered to be ‘undertakings’, which is precisely why the Chamber of Notaries was classified as an ‘association of undertakings’ (see the judgment in Lietuvos notarų rūmai and Others, paragraph 68).

37 This is without prejudice to the possibility of imposing sanctions on natural persons under national law, which was not at issue in the case that gave rise to the judgment in Lietuvos notarų rūmai and Others. On the imposition of sanctions on natural persons pursuant to national law, see point 106 of the present Opinion.

38 As regard the test to determine whether a right under EU law exists and the class of persons protected, see Tridimas, T., ‘Financial regulation and private law remedies: An EU law perspective’, in Cherednychenko, O. and Andenas, M. (eds), Financial Regulation and Civil Liability in European Law, Edward Elgar Publishing Ltd, Cheltenham, 2020, pp. 47 to 72, at p. 62.

39 Judgments of 4 June 2009, T-Mobile Netherlands and Others (C‑8/08, EU:C:2009:343, paragraph 38), and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission (C‑286/13 P, EU:C:2015:184, paragraph 125).

40 Judgment of 12 December 2019, Otis Gesellschaft and Others (C‑435/18, ‘the judgment in Otis Gesellschaft and Others’, EU:C:2019:1069, paragraph 26).

41 The judgment in Courage and Crehan (paragraphs 5 to 7).

42 The judgment in Courage and Crehan (paragraph 31).

43 Judgment of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 61).

44 The judgment in Otis Gesellschaft and Others (paragraph 9).

45 The judgment in Otis Gesellschaft and Others (paragraph 29).

46 The judgment in Otis Gesellschaft and Others (paragraph 30).

47 The judgment in Otis Gesellschaft and Others (paragraph 31).

48 The judgment in Otis Gesellschaft and Others (paragraph 31).

49 In fact, any provision of EU law is to be interpreted in the light of its objectives, including when it comes to assessing who is entitled to rely on it. To that effect, see, in particular, judgment of 17 September 2002, Muñoz and Superior Fruiticola (C‑253/00, EU:C:2002:497, paragraphs 29 to 31); the wording used is visibly inspired by that used in the judgment in Courage and Crehan (see points 61 to 64 of the present Opinion). See also judgment of 4 December 1997, Daihatsu Deutschland (C‑97/96, EU:C:1997:581, paragraph 22).

50 See the judgment in Sumal (paragraphs 35 and 36 and the case-law cited).

51 See the judgment in Sumal (paragraph 37 and the case-law cited).

52 See the judgment in Lietuvos notarų rūmai and Others (paragraphs 111 and 112). See also Article 13 of Directive 2019/1.

53 Judgment of 11 June 2009, X BV (C‑429/07, EU:C:2009:359, paragraph 37).

54 OJ 2006 C 210, p. 2.

55 See, by way of example, the Communication of the French Competition Authority of 30 July 2021, the Guidelines of the Federal Cartel Office of 11 October 2021 or the Guidelines of the Portuguese Competition Authority of 20 December 2012.

56 The judgment in Sumal (paragraph 55).

57 Judgment of 6 November 2012, Otis and Others (C‑199/11, EU:C:2012:684, paragraph 51).

58 Judgment of 6 November 2012, Otis and Others (C‑199/11, EU:C:2012:684, paragraph 62).

59 See, to that effect, the judgment in Sumal (paragraph 59), where the Court held, as an obiter dictum, that a private enforcement action cannot, in practical terms, lead to the imposition of a fine on entities that were not part of the administrative procedure leading to the imposition of a fine.

60 Judgment of 11 June 2009 (C‑429/07, EU:C:2009:359).

61 Judgment of 11 June 2009, X BV (C‑429/07, EU:C:2009:359, paragraphs 38 and 39).

62 See points 36 to 44 of the present Opinion.

63 See the Guidelines on the method of setting fines, point 13.

64 See the judgment in Lietuvos notarų rūmai and Others (paragraph 110).

65 See the Guidelines on the method of setting fines, point 28.

66 See the Guidelines on the method of setting fines, point 35.

67 See also, to that effect, the judgment in Sumal (paragraph 59).

68 Council Regulation of 8 October 2001 on the Statute for a European company (SE) (OJ 2001 L 294, p. 1).

69 In my view, Article 51 of Regulation No 2157/2001 is comparable to Paragraph 43(2) of the GmbHG or Paragraph 93(2) of the AktG, on which the applicants in the present case are relying (see points 6 and 7 of the present Opinion).

70 See, in that regard, judgment of 21 October 2025 of the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany) (31 U 3/25, DE:OLGHE:2025:1021.31U3.25.00).

71 Judgment of 2 February 2021, Consob (C‑481/19, EU:C:2021:84, paragraph 50).

72 See point 39 of the present Opinion.

73 See point 37 of the present Opinion.

74 See, in that regard, the last sentence of recital 10 of Directive 2019/1, pursuant to which ‘Member States should be able to endow [national competition authorities] with additional powers beyond the core set provided for in this Directive to further enhance their effectiveness, such as powers to impose fines on natural persons …’.

75 Wils, W., ‘The relationship between public antitrust enforcement and private actions for damages’, World Competition, Vol. 32, Issue 1, 2009, pp. 3 to 26, at p. 5.

Opinion of Advocate General Szpunar delivered on 1 October 2026.###

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