Management Liability for Companies’ Antitrust Fines1

Jens-Uwe Franck and Till Seyer

Chapter 24 in Research Handbook on Competition and Corporate Law, 2025, pp 535-585 from Edward Elgar Publishing

Abstract: If an antitrust fine has been imposed on a company, the question of managerial recourse liability arises. We present court cases from the Netherlands, the UK, and Germany, in part denying managerial liability and claiming that it would undermine the fines’ deterrent effect. We analyse whether managerial liability for companies’ antitrust fines should be limited or banned to prevent the company and its shareholders from being under-deterred or the company's management from being over-deterred. Regarding the former, we argue that a ban on managerial liability would take an indispensable governance instrument out of the hands of shareholders. This holds true despite the availability of directors and officers (D&O) insurance. Regarding the latter, we identify risks of over-deterrence but also see mitigating mechanisms at work. We conclude that a restriction on managerial liability should not be viewed as a mandatory implication of antitrust fining laws and policy.

Keywords: Antitrust Fines; Deterrence; Managerial Liability; Recourse Liability; D&O Insurance; Principle of Effectiveness (search for similar items in EconPapers)
Date: 2025
ISBN: 9781803920542
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