AG: fined firms cannot pass cartel fines to directors

A fined undertaking cannot pass its cartel fine on to the director who committed the infringement on its behalf, Advocate General Szpunar proposed on 1 October 2026Europa in his Opinion in Case C-347/25 (Zapp)Europa. Article 101 TFEU, in his view, precludes a company fined for breaching it from recovering the financial loss consisting exclusively in paying that fine from a member of its management bodyEuropa. The Opinion answers the BundesgerichtshofEuropa by proposing that the Court so holdEuropa; the coming judgment will decide the point.

The underlying dispute is a German corporate-recovery action. Between 2002 and 2015 a manager of Zapp Precision Metals GmbH, also board chairman of holding company Zapp AG, took part as the companies' representative in a stainless-steel price-fixing agreementEuropa built on an industry-wide system of base prices plus agreed surcharges. The Bundeskartellamt fined the operating company EUR 4,1 millionEuropa and the manager personally EUR 126 000Europa for an intentional Article 101(1) TFEU infringement; the fines were purely punitive, and the authority refrained on discretionary grounds from skimming off the company's illicit gains and dropped the case against the holding company. The companies then sued the former manager: the operating company claims the full fine it paid plus fees, the holding company approximately EUR 1.144 million in investigation and legal-advice costs. Both lower courts dismissed the action, and the Bundesgerichtshof referred the question whether Article 101 TFEU blocks such recovery.

Szpunar starts from the undertaking: Article 101(1) TFEU and Article 23(2) of Regulation No 1/2003 designate it, an economic unit irrespective of legal form, as the perpetrator, liable personally, not vicariously. Directors' acts are attributed to it; it cannot be tortfeasor and injured party at once. The manager acted as managing director of the operating company, not as an individual undertaking, a logic the Opinion draws by analogy from Lietuvos notarų rūmai (C-128/21), where the Court refused to treat individual presidium members as co-perpetrators.

Nor, Szpunar argues, does Article 101 TFEU protect such a claim. The provision protects the market and competition as such, not an infringer treating its fine as loss. The Courage and Crehan right of any individual to claim damages covers victims of the infringement, and even a co-contractor bearing significant responsibility may be denied damages; it does not entitle the infringer to socialise its punishment. An undertaking whose unlawful conduct is established, and which is personally liable, is not entitled to seek damages for the fineEuropa.

Allowing recovery would, in the Opinion's central effectiveness argument, impair rather than complement public enforcement. Fines must be effective, proportionate and dissuasive, calibrated to the undertaking's sales, gravity, duration and turnover up to 10 %, and their burden is assumed to stay with the undertakingEuropa. A damages court ordering reimbursement would de facto amend the authority's fine, which only the authority or the courts on appeal can revise. The precedent invoked is X BV (C-429/07): as deducting a competition fine from taxable profits compromises penalties, shifting its burden to the director does too.

That reasoning does not depend on insurance: the D&O cover here, EUR 25 million with AIG Europe S.A. excluding intentional breaches and fines imposed on the insured personally, only reinforces that recovery is precluded, since the fine's burden would leave the undertaking. The Opinion preserves two adjacent routes: Member States may fine participating managers personally, as Germany did with the EUR 126 000 penalty, and companies may recover cartel-victim damages they paid, as distinct from the fine itself.

Legal basis: Article 101 TFEU; Opinion of Advocate General Szpunar of 1 October 2026 in Case C-347/25.