Under the principles of personal responsibility and the personal nature of penalties, which apply to EU competition law, it is for the natural or legal person managing the undertaking in question when the infringement was committed to answer for that infringement, even if, at the date of the decision finding the infringement, the operation of the undertaking was no longer his responsibility. Thus responsibility for the undertaking’s infringement — or that of the entities of which it consists — follows the legal or natural person managing the undertaking in question when the infringement was committed, even though the assets and personnel which contributed to the commission of the infringement have been transferred to a third person after the period of the infringement.

A natural or legal person who has not committed the infringement may however be penalised for that infringement where the natural or legal person who has committed the infringement has ceased to exist, either in law or economically, in order to prevent an undertaking from being able to escape penalties by simply changing its identity through restructurings, sales or other legal or organisational changes. The relevant criterion is economic continuity, so that a change in the legal form and name of an undertaking does not have the effect of creating a new undertaking free of liability for the anti-competitive behaviour of its predecessor when, from an economic point of view, the two undertakings are identical.

Furthermore, the fact that a legal person continues to exist as a legal entity does not exclude the possibility that, with reference to EU competition law, there may be a transfer of part of the activities of that legal person to another which becomes responsible for the acts of the former. Applying penalties in this way is permissible where those legal persons have been under the control of the same person and have therefore, given the close economic and organisational links between them, carried out, in all material respects, the same commercial instructions.

By contrast, in the case of two existing and functioning undertakings one of which had transferred part of its activities to the other and where there was no structural link between them, there can be economic continuity only where the legal person responsible for running the undertaking has ceased to exist in law after the infringement has been committed.

Accordingly, the criterion of economic continuity makes it possible, in exceptional circumstances which are strictly defined, to ensure that the principle of personal responsibility of the author of the infringement is effective and to penalise a legal person which is not the legal person which committed that infringement but with which it shares structural links. In accordance with the criterion of economic continuity, the Commission is therefore allowed to penalise a legal person other than the person who committed the infringement, notwithstanding any legal structure intended, within one and the same undertaking, artificially to prevent the penalising of infringements of competition law which have been committed by one or more of the legal persons of which it consists.

However, where rules of law, such as those governing limitation, prevent an undertaking from being penalised for having committed an infringement of competition law, or where the undertaking which has transferred the legal person which committed the infringement to a third party has ceased to exist, the criterion of economic continuity is not intended to enable another undertaking to be found and rendered responsible retroactively for the acts committed by the first undertaking, unless the undertakings have structural links which link them economically and organisationally or the transfer of the legal person which committed the infringement was an abuse.

(see paras 85-95, 98)