Respice finem: Deterrence, Not Incitement! - Case Note: AG Opinion in C-347/25

Case Note on the Opinion of Advocate General Szpunar of 1 October 2026, C-347/25 – Zapp*

The German Federal Court of Justice has asked the European Court of Justice (ECJ) whether Article 101 TFEU precluded managerial liability for competition law fines. Advocate General Szpunar now proposes that the ECJ answer that question in the affirmative. However, his reasoning lacks argumentative depth, so that this Opinion can offer the ECJ little guidance. It remains to be hoped that the ECJ will decide the question with an open mind towards the arguments not (sufficiently) assessed by the Advocate General. In doing so, it should be guided by the unease that the Advocate General seems to feel about his own solution at the end of his Opinion. The principle of effectiveness requires the consequences to be considered. This means finding a solution which also deters company organs from competition law infringements rather than inciting them to commit such infringements. The ECJ should therefore permit managerial liability for fines or leave the decision to national law.

      I.    Introduction

Can undertakings1 take recourse against members of their company organs for competition law fines imposed on the undertaking? This question has long been controversial in German law. Numerous arguments are exchanged at the intersection of company law, the law on regulatory offences, general civil law, and national and European competition law.2 Following a reference by the German Federal Court of Justice to the ECJ,3 Advocate General Szpunar has now delivered his Opinion.4 It will be critically assessed below, without revisiting the debate in its full depth.

    II.    No tension between private and public enforcement

The Advocate General begins his legal assessment at para 25 and sees the present case as lying “at the crossroads between public and private enforcement of EU competition law”. This is unconvincing. The claim for recourse is not a claim for the enforcement of competition law. The company is not bringing a competition law damages claim against its organ. It is bringing a claim for breach of the duty of legality under national company law. There is therefore no tension at all between public and private enforcement of competition law.

Such a tension could only be construed if private enforcement of competition law were understood so broadly as to encompass any private enforcement of rights which also promotes the enforcement of competition law as a matter of fact. Civil claims for the enforcement of duties under company law, including recourse for fines, would then also constitute private enforcement of competition law. Yet the Advocate General himself does not really wish to go that far. Indeed, he emphasises, albeit wrongly, that managerial liability for fines harms the enforcement of competition law (para 77 – admittedly referring only to the effectiveness of the fine, which is the wrong point of reference; see infra IV.4.). Ultimately, what matters is that there is a tension at all, namely a tension between public enforcement of competition law and recourse against company organs under company law.

  III.    No claim for recourse against company organs under EU competition law

The Advocate General’s assumption that recourse for fines constitutes private enforcement of competition law does no substantive harm, but leads him down a side track. It prompts him to consider whether the claim for recourse might be a competition law claim arising from Article 101 TFEU. This leads to an ultimately unproductive analysis in paras 25 to 73. In substance, the Advocate General is right: the undertaking’s claim for recourse against its organ is not a claim under EU competition law. The Advocate General explains this at length, making numerous interesting observations, some convincing, others misguided:

One can agree, for example, with the statement that the undertaking’s liability is personal and not vicarious liability for third parties (company organs) (para 41). The proposition that the undertaking cannot be both the tortfeasor and the injured party also initially seems plausible (para 46). One wonders, however, whether this is correct as a general proposition. If an undertaking is forced to participate in a cartel (see also s.21(2) German Competition Act (GWB)), it is a tortfeasor in relation to injured third parties, but perhaps nevertheless a victim in relation to the party that exerted the coercion. In the present context, a further objection is that different legal relationships are being conflated. In its external relations, the undertaking commits the competition law infringement and owes the fine, whereas internally, the acting organ has harmed the company in breach of its duties under company law. The attribution of the organ’s conduct to the undertaking under competition law does not eliminate the organ’s own duties under company law. Why attribution to the undertaking should simultaneously exclude the organ’s internal responsibility would first have to be explained.

For his further statement that natural persons acting on behalf of the undertaking are not themselves liable (paras 51, 55), the Advocate General cannot rely on the judgment concerning the Lithuanian Chamber of Notaries (paras 52 et seqq.).5 That case concerned proceedings for the imposition of fines on notaries representing the Chamber of Notaries and the question whether the notaries, as undertakings, had participated in the Chamber’s infringement and were liable to fines under competition law.6 It did not concern the question whether the Chamber of Notaries could take recourse against the notaries under civil law. The ECJ even expressly emphasises that its decision does not mean “that those notaries should necessarily be exonerated from all liability in relation to the same infringement”.7 Even if one were prepared to disregard these fundamental differences, a comparison with the liability of cartel facilitators affirmed by the ECJ8 would in any event still have been necessary: why should a cartel facilitator who is not even active on the relevant market be liable, but a member of a company organ not be liable?

It is then a mere semblance of reasoning to seek to infer from the objective of protecting competition that Article 101 TFEU does not confer a right of recourse against company organs (paras 59 et seq.). The one does not necessarily follow from the other. At the very least, this would have required a more thorough explanation, particularly since the protection of competition is indeed served when the prospect of recourse gives company organs an incentive to comply with competition law.

Finally, however, the Advocate General’s intention to examine the scope of protection afforded by Article 101 TFEU is certainly convincing (paras 67–73). The judgment in Otis v Land Oberösterreich9 does indeed not preclude this.10

It should be recalled that even the (partly) correct observations made by the Advocate General in this first section of his Opinion do not help to answer the question referred. The claim for recourse does not arise from Article 101 TFEU, but is a claim under national company law.

 IV.    Article 101 TFEU and national company law

The key question is therefore whether Article 101 TFEU (on Article 101 TFEU as the correct point of reference, see infra IV.4.) precludes this claim for recourse under national company law because the latter impairs its practical effectiveness. The Advocate General (only) addresses this decisive question from para 74 onwards.

1.  Public and private enforcement as complementary instruments

He first returns to the idea that public and private enforcement complement each other (paras 74–76). That is correct. It is not clear, however, why the Advocate General mentions it. If one correctly recognises – as the Advocate General does in the immediately preceding paragraphs – that the claim for recourse is not a claim under (EU) competition law but a claim under national company law, the private enforcement aspect can be put aside. The only question then is whether recourse impairs public enforcement because the fine is ultimately no longer borne (solely) by the undertaking. Private enforcement then plays no role.

Nevertheless, it appears to be important to the Advocate General in the central paragraph of his reasoning. Having emphasised in para 76 that public and private enforcement are intended to punish anticompetitive behaviour and deter from engaging in such behaviour, he states in para 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.”

This reasoning – as brief as it could be – is surprising. The Advocate General has essentially just established that recourse for fines does not constitute private enforcement. Nevertheless, he returns to this idea. One has the impression that the entire (unnecessary) argumentative effort of placing public and private enforcement on an equal footing serves only to enable him to say at this point that this private enforcement runs counter to the objectives of Article 101 TFEU. Yet it is precisely not private enforcement. He could simply have referred directly to public enforcement and said that recourse runs counter to its objectives because it would impair the effectiveness of the fine.

In any event, it must be noted that no reasons are given. The Advocate General does not disclose the basis for ‘his view’. It remains unclear why recourse for fines should run counter to the objectives of punishment and deterrence, and why the effectiveness of the fine is impaired rather than complemented (or even enhanced).

2.  The Commission’s position

The Advocate General then addresses the Commission’s position and explains why it does not undermine his view (para 78, “nevertheless”). This is, of course, not a justification for his view, which remains unsubstantiated, but merely an argument against the Commission’s position. In this respect, however, the Advocate General is to be supported. The Commission’s position, according to which the national court should determine the recoverable amount on a case-by-case basis, seems insufficiently thought through. It is unclear how the national court should decide on an apportionment and determine the recoverable amount, and it is indeed for the EU courts to vary fines (paras 78–84).

3.  De facto impairment of the fine

From the fact that only the EU courts have the power to reduce a fine (para 84), he then infers that actions for damages must not impair a fine even de facto (para 85). Here, too, he gives no reasons.

The attempt to provide reasons by a reference to Sumal11 fails. The statement that “an action for damages cannot de facto encroach on a decision of the Commission or of a national competition authority imposing a fine” (para 85) does not appear in Sumal in that form. That judgment merely states that legal entities forming part of an undertaking are also liable in damages under civil law even if they were not involved in the proceedings for the imposition of a fine on the undertaking. Their rights of defence were not restricted thereby because the action for damages does not result in the imposition of a penalty such as a fine. His observations in his footnote 59 therefore do not support his conclusion in para 85.

His further conclusion that “[…][a]ny claim exclusively based on the fine imposed and paid has to be raised in the context of public enforcement proceedings” (para 86), rather than by way of private enforcement (as he understands it12), therefore also fails. Moreover, the claim for recourse is precisely not based “exclusively” on the fine, but additionally on a breach of duty under company law. Even his own (incorrect) premise therefore does not support the Advocate General’s conclusion that managerial liability for fines must be excluded.

4.  Article 101 TFEU as the correct point of reference

It would certainly have been possible to justify, by reference to the principle of effectiveness, the view that recourse must not de facto impair the effectiveness of the fine. However, it would then have been necessary to explain why recourse should impair that effectiveness. Moreover, and this is a serious objection, the correct point of reference for the principle of effectiveness would have had to be chosen. This is not the effectiveness of the provisions on fines, but, as the Federal Court of Justice correctly recognised in its question referred, the effectiveness of Article 101 TFEU.13 In this respect, however, recourse has ambivalent effects. It may reduce the effectiveness of the fine for the undertaking, but it creates incentives for company organs which increase deterrence.14 The latter is crucial because company organs act on behalf of the undertaking. Anyone wishing to improve road safety creates incentives for the drivers at the wheel, not for the passengers in the back seat.

5.  Compliance incentives for company organs

The Advocate General does not ignore this argument entirely (paras 2, 90 et seqq.). He does, however, hide behind doctrinal considerations which obscure and ultimately completely disregard the real question, namely that of effectiveness:

First, the Advocate General emphasises that the fine is calculated by reference to the specific circumstances of the undertaking (paras 90–93). That is correct. It says nothing, however, about whether recourse does not increase (or at least does not diminish) the effectiveness of Article 101 TFEU.

Nor do his conclusions hold. First, he considers that “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” (para 94). His reference to Sumal is unconvincing in this respect, as already explained above.15 Nor is it quite clear why rights of defence should be infringed. Second, the Advocate General considers that the way in which the fine is calculated appears to rely on the assumption that its burden would remain permanently with the undertaking (para 94). No further explanation is given. The words “appears to rely” do not suggest any deep conviction on his own part either.

He then notes that recourse against company organs is provided for, for example, in Article 51 of the SE Regulation. He considers this to be justified where the organ has breached a specific managerial duty, which, nonetheless, justifies a sanction being imposed on the company (paras 95 et seq.). One now wonders what is different in the case of recourse for competition law fines. After all, the organ has breached its managerial duty not to form cartels, and the company (the undertaking) has been penalised for that reason. For the Advocate General, the difference lies in the fact that EU competition law punishes the “personal conduct” of undertakings (para 97). This is difficult to understand. The Advocate General, who still recognised in para 2 that “an undertaking can only act through the actions of humans” (para 2), now believes that the undertaking displays ‘personal conduct’ independently of any natural persons acting on its behalf. One may argue in doctrinal terms as one pleases. There is, however, one fact that no one can avoid: the ‘personal conduct’ of undertakings is based on human action. Precisely for that reason, Article 51 of the SE Regulation cannot be dismissed with a purely doctrinal argument.

Not without justification, the Advocate General refers to the purpose of the fine of depriving the undertaking of advantages obtained from the cartel (para 98) – incidentally, a point which the German fiscal courts should finally take to heart.16 This says nothing, however, about the admissibility of managerial liability for fines. At this point, the Advocate General fails to address the other means of disgorging those advantages which have repeatedly been highlighted in the literature.17 The Federal Court of Justice’s incomplete account of the facts as regards German law now takes its toll.18 If it is recognised (and/or required under the principle of effectiveness) that a claim for recourse exists only to the extent that the undertaking proves that its advantages from the cartel fall short of the fine, there is no danger that unlawful advantages will remain with, or flow back to, the undertaking.19 Incidentally, this finding also undermines a central premise of the Advocate General. The Advocate General bases his opinion on the premise that the right of recourse exists in the amount of the fine (paras 77, 94). However, this is by no means the case under German law. Only in exceptional cases might this occur.

The Advocate General’s argument that infringements are not committed by one person alone, but that many people contribute to them, and that the focus is therefore deliberately placed on the undertaking, is unclear (para 101). This is not wrong, even though in the present case the infringement was probably in fact primarily attributable to one person. It is unclear, however, what is supposed to follow from this. Even if EU competition law focuses on the activities of undertakings, this does not mean that it fails to see and understand that people must act on their behalf. It can also conclude – precisely with a view to the effectiveness of competition law enforcement – that managerial liability for fines is possible, perhaps even required. The Advocate General says nothing about this, however. His observations at this point are left hanging without argumentative support and contribute nothing to the justification of his proposed decision.

It remains to be noted that the Advocate General does not assess the compliance incentives for company organs at all. Although he begins with them, he then offers only doctrinal considerations. The fact that “an undertaking can only act through the actions of humans” (para 2) no longer plays any role for him. He does not address in a single word the possibility that effective enforcement of Article 101 TFEU may require (indeed, requires!) appropriate incentives for the people who act. It is therefore also unsurprising that he makes no mention of the provision in the NIS 2 Directive (2022/2555/EU), which regards recourse against company organs not as a threat to the effectiveness of the fine, but as a necessary means of influencing their behaviour.20 By disregarding the question of incentives, he fails to address a central point in the debate.

6.  The judgment in X BV

The Advocate General understands the judgment in X BV21 to mean that the ECJ rejects the tax deductibility of a competition law fine because this would jeopardise the effectiveness of the penalty (paras 87 et seq.).22 He deals only very briefly (para 89) with the correct counterargument that tax deductibility does indeed relieve the undertaking and burden the State, whereas recourse leaves the fine unchanged and merely distributes it differently within the undertaking.23 Ultimately, here too he dispenses with giving reasons, contenting himself with the assertion that what matters is the reduction of the burden on the undertaking. He fails to see, however, that the assumption that the burden on the undertaking is reduced in the present case is not correct as a general proposition. Viewed in factual terms in the light of the principle of effectiveness, this is not about relieving the undertaking at all. It is about distributing the unchanged burden differently within the undertaking, away from the shareholders and towards the company organs.24 His reasoning therefore remains far too superficial.

   V.    D&O insurance

In the Advocate General’s view, the existence of D&O insurance is irrelevant. All that matters to him is that only the undertaking bears the fine, by which he presumably ultimately means the shareholders (para 103). Yet he then does infer from the existence of D&O insurance that it underlines the need for Article 101 TFEU to exclude managerial liability for fines. He sees the risk that the burden will be shifted away from undertakings and towards insurers (para 104). This, too, is superficial reasoning. He does not explain why Article 101 TFEU should therefore exclude managerial liability for fines rather than the insurability of that liability. Since this question can hardly be answered by reference to European law, it would have made sense to leave it to national law. This is how the ECJ proceeded in an analogous situation in ASG2, and the same approach has been proposed in the literature for the present case.25

 VI.    The need for an overall assessment

As a general matter, an overall assessment of national law is necessary. The principle of effectiveness (properly understood as referring to Article 101 TFEU; see supra IV.4.) does not ask whether managerial liability for fines alone, or its insurability alone, undermines the practical effectiveness of European competition law. It is concerned with the national legal system as a whole. If the combination of managerial liability for fines and insurability is problematic, only national law can decide which of the two to dispense with.

Since the national legal system as a whole is at issue, the examination must not be confined to managerial liability for fines. Other factors of national law which may significantly weaken managerial liability for fines must also be considered – for example, the offsetting of advantages and disadvantages and an allocation of the burden of proof to the undertaking.26 The ECJ can undertake the necessary overall assessment of national law only on the basis of a complete account of the facts by the referring court (which is unfortunately lacking here).27 If the ECJ finds that national law, as specifically configured, does not meet the requirements of the principle of effectiveness, it can only state that conclusion. It cannot itself decide how national law is to be brought into conformity with European law. It is for national law to decide whether to dispense with managerial liability for fines altogether, exclude its insurability, or limit managerial liability for fines through the offsetting of advantages and disadvantages and the allocation of the burden of proof. It is then the ECJ’s turn again to decide whether this now satisfies the principle of effectiveness.

Such back and forth should, of course, be avoided as far as possible. To that end, referring courts could put a series of alternative questions. For its part, the ECJ can refrain from prescribing too narrowly what national law must do. It recognised this in ASG2 and wisely confined itself to a very general answer which ultimately refers back to national law and the assessment of the national court. It should do the same here.28 Unfortunately, the Advocate General does not address this.

VII.    Unease about the outcome

The Advocate General’s concluding remarks reveal his unease about his own conclusion. This is unsurprising. If managerial liability for fines is excluded, members of company organs no longer have an incentive to comply with competition law. This should have prompted him to address the issue in the reasoning of the Opinion and – in the view taken here – to reach a different conclusion. The Advocate General, however, chose not to do so. Instead, at the end he places his hopes in a legislative amendment, in the Member States and – inconsistently in this respect – in recourse not for the fine but for damages paid to third parties:

He first emphasises that Member States may impose personal fines on members of company organs (para 106). That is correct, but has never been in doubt. He then recognises that the Commission cannot do precisely this (para 107) and considers that competition law enforcement would be strengthened if the Commission were given this power (para 108). That is correct, but it is not the law as it stands.

As an alternative measure, he points to the possibility for Member States to impose individual fines on the company organs alongside the Commission’s fine on the undertaking (para 109). In practice, however, this does not happen, because it would require two sets of proceedings concerning the same matter, which is inefficient.29 Moreover, it is unclear whether this is possible in all Member States. In any event, it would also be necessary to ensure that these fines are sufficiently high.

Finally, he relies on undertakings being able to take recourse against their company organs for damages paid to injured parties (para 109). This is far too simplistic. First, he himself has emphasised that private and public enforcement belong together and complement each other (paras 74 et seqq.). If he is right that recourse for fines impairs public enforcement because the undertaking no longer bears the fine alone, recourse for damages must also impair private enforcement because the undertaking no longer bears the damages alone.30 Anything else would be inconsistent. Second, he emphasises the need to deprive the undertaking of unlawful profits (para 98). Damages do in many cases, though not always, deprive the undertaking of an unlawful profit. Recourse would, however, cause that disgorged unlawful profit to flow back to the undertaking unless this were prevented through the offsetting of advantages and disadvantages and the allocation of the burden of proof.31 The Advocate General says nothing about this either. His bare assertion that a claim for recourse against company organs exists in respect of damages paid is therefore inconsistent, unsubstantiated and, in view of his own unease, mere whistling in the dark.

Respice finem – consider the consequences. The outcome must not be that company organs are no longer deterred from competition law infringements but rather are positively incited to commit them by the prohibition of managerial liability for fines. Road safety cannot be achieved either by abolishing fines and speed cameras and thereby encouraging drivers to speed.

VIII.    Conclusion

The Advocate General’s Opinion is unconvincing. The claim for recourse is correctly classified as not being a competition law claim, but is then nevertheless categorised as private enforcement of competition law. A non-existent conflict between recourse and private enforcement is then construed on that basis. The question referred concerned the compatibility of managerial liability for fines with Article 101 TFEU, but the Advocate General examines only its compatibility with the provisions on fines. He thus disregards the possibility that the effectiveness of Article 101 TFEU may require both fines for undertakings and compliance incentives for company organs. Only at the end does he recognise that a prohibition of managerial liability for fines, which removes compliance incentives for company organs, may be highly detrimental to competition law enforcement. He consoles himself with hopes for a legislative amendment, for Member State action that may be possible but does not occur in practice, and for the possibility of recourse for damages. Yet he would himself have to reject the latter if he applied his own standards consistently. Incidentally, he would likewise have to reject agreements between undertakings and their company organs requiring the latter to repay bonuses received in the event of competition law infringements. After all, this too would reduce the burden imposed by the fine.32 Taken as a whole, this Opinion can provide only little assistance to the ECJ in reaching its decision. It remains far too much on the surface and does not engage with the depth of the debate. This is disappointing, because case-law and literature would have provided a wealth of material.33

What is both alarming and refreshing about the principle of effectiveness is that it sets all doctrinal questions aside. The consequences must be considered; the outcome is decisive. Protecting competition requires punishment and deterrence. Viewed in this way, the central insight must be that it is ultimately people who act. Only they can experience fear; only they can be deterred. There is therefore much to suggest that solutions must be found which also deter people, specifically those who actually act: the drivers, not the passengers. Conversely, solutions which do not deter those who actually act, but even provide them with incentives to infringe competition law by exempting them from liability, appear highly problematic.

The ECJ will therefore also have to consider the consequences and answer the question whether company organs should really be told ex ante that they can participate in a cartel on behalf of their undertaking without having to fear personal consequences. Imagine such an exclusion of recourse being agreed by contract. That would amount to incitement to form a cartel. Moreover, it is difficult to imagine that such agreements, whose purpose can only be to promote cartels, would be regarded as valid in the light of Article 101 TFEU. Can one then seriously seek to derive such a rule from the law? Consider the consequences; the guiding principle must therefore be: deterrence, not incitement!

It remains to be hoped that the ECJ will approach the question with an open mind and genuinely take account of and engage with the various facets of the debate. There is then much to be said for permitting managerial liability for fines or leaving the question to national law.34

• 1

  * This article is a translated (with AI support) version of Kersting “Respice finem: Abschreckung statt Anstiftung!”, to be published in NZKart 2026 [Neue Zeitschrift für Kartellrecht]. This article is dedicated to my friend and colleague Ulrich Noack on his 70th birthday.
  The case takes place at the interface of company and competition law. Therefore, both the term ‘company’ and the term ‘undertaking’ are used. While company law looks at the individual company as a legal entity, competition law looks at the undertaking, which can mean both the individual legal entity and the economic unit consisting of several legal entities. For reasons of simplification, the term ‘undertaking’ is therefore often used below as a generic term, which is not always understood strictly in terms of competition law, but also in terms of company law. 

• 2See the references in BGH, judgment of 11 February 2025, KZR 74/23, NZKart 2025, 385, paras 13 et seq.—Zapp; as well as Arnold/Unmuth, NZKart 2026, 458 et seqq.; Dreher, NZKart 2026, 569 et seqq.; Kersting (2025) 46 E.C.L.R. 330 (German version: Kersting, ZIP 2025, 1590 et seqq.); Kersting/May (2024) 45 E.C.L.R. 528 (German version: Kersting/May, WuW 2024, 243 et seqq. and WuW 2024, 313 et seqq.); Kersting, ZIP 2016, 1266 et seqq. = FIW Jahrbuch 2018 (2019), 81 et seqq.; Otto, in Kalss/Torggler, Unionsrecht – Impulsgeber oder Störfaktor? (2026), p. 61 et seqq.; Wagner-von Papp, NZKart 2025, 347 et seqq.; Wagner-von Papp, WuW 2026, 575 et seq.; Weitbrecht, NZKart 2024, 170 et seqq.; each with further references.
• 3BGH, judgement of 11 February 2025, KZR 74/23, NZKart 2025, 385—Zapp.
• 4Opinion of Advocate General Szpunar of 1 October 2026, C-347/25, ECLI:EU:C:2026:805—Zapp.
• 5ECJ, judgment of 18 January 2024, C-128/21, ECLI:EU:2024:49, paras 106 et seqq.—Lietuvos notarų rūmai.
• 6ECJ, judgment of 18 January 2024, C-128/21, ECLI:EU:2024:49, para 121—Lietuvos notarų rūmai.
• 7ECJ, judgment of 18 January 2024, C-128/21, ECLI:EU:2024:49, para 122—Lietuvos notarų rūmai.
• 8ECJ, judgment of 22 October 2015, C-194/14 P, ECLI:EU:C:2015:717, paras 26 et seqq.—AC-Treuhand.
• 9ECJ, judgment of 12 December 2019, C-435/18, ECLI:EU:C:2019:1069—Otis v Land Oberösterreich.
• 10Cf. Kersting/Meyer-Lindemann/Podszun/Kersting, Kartellrecht, 5th edition 2025, § 33a para 7.
• 11ECJ, judgment of 6 October 2021, C-882/19, ECLI:EU:C:2021:800, para 59—Sumal.
• 12Cf. supra II.
• 13BGH, judgment of 11 February 2025, KZR 74/23, NZKart 2025, 385—Zapp; as well as Kersting (2025) 46 E.C.L.R. 330, 335 et seqq. (German version: Kersting, ZIP 2025, 1590, 1595 et seqq.). Critical of the order for reference: Dreher, NZKart 2026, 569, 570.
• 14BGH, judgement of 11 February 2025, KZR 74/23, NZKart 2025, 385, paras 34 et seq.—Zapp; Kersting/May (2024) 45 E.C.L.R. 528, 532 (German version: Kersting/May, WuW 2024, 243, 246); Wiedemann/Lohse, Hdb KartR, § 50 paras 94, 97. See also Wagner-von Papp, NZKart 2025, 347, 350 et seq. Taking a different view: Dreher, NZKart 2026, 569, 572 et seq.
• 15See already supra in footnote 11 and accompanying text.
• 16Cf. FG Münster, judgement of 12 December 2025, 4 K 1530/21 F, WuW 2026, 295 = BeckRS 2025, 42878; on this, Kersting, WuW 2026, 268 et seq.
• 17See, with further references, Kersting, ZIP 2016, 1266, 1268, 1271 et seqq.; Kersting (2025) 46 E.C.L.R. 330, 337 et seqq. (German version: Kersting, ZIP 2025, 1590, 1596). In agreement: Monopolkommission, XXV. HG 2024, paras 345 et seq.; critical: Wagner-von Papp, NZKart 2026, 347, 353. See also Dreher, NZKart 2026, 569, 571; Otto, in Kalss/Torggler, Unionsrecht – Impulsgeber oder Störfaktor? (2026), p. 61, 71 et seq.
• 18Kersting (2025) 46 E.C.L.R. 330, 337 et seqq. (German version: Kersting, ZIP 2025, 1590, 1596).
• 19Kersting/May (2024) 45 E.C.L.R. 528, 534 (German version: Kersting/May, WuW 2024, 313, 313 et seq.); see also supra in footnote 17.
• 20Hessel/Callewaert/Schneider, RFamU 2024, 200, 203 et seq.; Kersting (2025) 46 E.C.L.R. 330, 333 (German version: Kersting, ZIP 2025, 1590, 1593). Taking a different view: Otto, in Kalss/Torggler, Unionsrecht – Impulsgeber oder Störfaktor? (2026), p. 61, 68.
• 21ECJ, judgment of 11 June 2009, C-429/07, EU:C:2009:359, paras 37 et seqq.—X BV (Inspecteur van de Belastingdienst).
• 22The judgment does not, however, address the substantive question whether tax deductibility actually conflicts with the principle of effectiveness; see Drüen/Kersting, Steuerrechtliche Abzugsfähigkeit von Kartellgeldbußen des Bundeskartellamts, 2016, para 220; Kersting/May (2024) 45 E.C.L.R. 528, 540 et seq. (German version: Kersting/May, WuW 2024, 313, 319).
• 23Drescher, Festschrift Möschel (2021), p. 91, 98; Kersting/May (2024) 45 E.C.L.R. 528, 540 et seq. (German version: Kersting/May, WuW 2024, 313, 319); Kersting (2025) 46 E.C.L.R. 330, 333 (German version: Kersting, ZIP 2025, 1590, 1593); Otto, in Kalss/Torggler, Unionsrecht – Impulsgeber oder Störfaktor? (2026), p. 61, 71. See also Weiß/Unmuth, ZIP 2025, 2723, 2730.
• 24See supra in footnote 23.
• 25ECJ, judgment of 28 January 2025, C-253/23, ECLI:EU:C:2025:40—ASG 2; Kersting (2025) 46 E.C.L.R. 330, 337 et seq. (German version: Kersting, ZIP 2025, 1590, 1596 et seqq.); Otto, in Kalss/Torggler, Unionsrecht – Impulsgeber oder Störfaktor? (2026), p. 61, 73. Dreher, NZKart 2026, 569, 570, also emphasises that the national legal system as a whole must be considered. However, the principle of effectiveness can only prescribe the outcome for that system, not the means of achieving it, and therefore cannot answer whether recourse or the insurability of recourse must be excluded. On ASG2, see also Kersting [2025] 18 G.C.L.R. 39 et seqq. (German version: Kersting, NZKart 2025, 116 et seqq.).
• 26See supra in footnote 17-19, 31 and accompanying text.
• 27See supra in footnote 18 and accompanying text.
• 28For the discussion as a whole, see the references supra in footnote 25.
• 29For a detailed discussion, see Kersting/May (2024) 45 E.C.L.R. 528, 539 et seq. (German version: Kersting/May, WuW 2024, 313, 318); see as well Wagner-von Papp, WuW 2026, 575 et seq.
• 30Kersting (2025) 46 E.C.L.R. 330, 335 (German version: Kersting, ZIP 2025, 1590, 1594 et seq.); differently Wagner-von Papp, WuW 2026, 575 et seq.
• 31See supra in footnote 17 and accompanying text.
• 32Franck/Seyer, Antitrust Fines and Managerial Liability, https://fmos.link/20708 (last accessed 31 October 2026); Kersting/May (2024) 45 E.C.L.R. 528, 537 et seq. (German version: Kersting/May, WuW 2024, 313, 316). Differently Wagner-von Papp, WuW 2026, 575 et seq.
• 33BGH, judgment of 11 February 2025, KZR 74/23, NZKart 2025, 385—Zapp; OLG Düsseldorf, judgment of 27 July 2023, 6 U 1/22 (Kart), NZKart 2023, 489; LG Dortmund, decision of 7 June 2023, 8 O 5/22 (Kart), NZKart 2023, 443; LG Dortmund, decision of 14 August 2023, 8 O 5/22 (Kart), NZKart 2023, 496; for the academic literature, see the references supra in footnote 2, with further references.
• 34See, for example, Kersting (2025) 46 E.C.L.R. 330, 338 et seq., 340 et seq. (German version: Kersting, ZIP 2025, 1590, 1598 et seq., 1600); Otto, in Kalss/Torggler, Unionsrecht – Impulsgeber oder Störfaktor? (2026), p. 61, 78.