CYIL vol. 11 (2020)

MICHAL PETR CYIL 11 (2020) thereafter, we will outline the basic typology of situations in which deployment of pricing algorithms may lead to a breach of competition law. 1. Undertakings as Addressees of Competition Law Undertakings are not defined in written competition law; they are nonetheless extensively discussed in jurisprudence and professional literature. 28 According to the general definition: “the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed”. 29 It is characteristic that the term “entity” does not correspond with the concept of legal personality. Indeed, one undertaking as an economic unit may consist of several legal entities: In competition law, the term ‘undertaking’ must be understood as designating an economic unit for the purposes of the subject-matter of the […] [infringement] in question even if in law that economic unit consists of several persons, natural or legal. 30 For the purposes of this article, we will further concentrate on the imputation of liability, namely, what type of behaviour may be attributed to the undertaking and whether such behaviour needs to be deliberate (intentional or negligent). Concerning the first question, we can start with a typology of possible situations, already established in theoretic literature. 31 The easiest situation concerns an undertaking consisting of a single natural person with no employees – thus, such a person is directly responsible for the conduct in question and the liability can be without any questions attributed to them. In a more complex scenario, the undertaking corresponds with a natural person, but it has employees, who were in fact engaged in the anticompetitive conduct (e.g. an employee negotiated an anticompetitive agreement on behalf of their employer). In general, it is a settled case law that an undertaking is responsible for the conduct of its employees, because “ [a]n employee performs his duties for and under the direction of the undertaking for which he works and, thus, is considered to be incorporated into the economic unit comprised by that undertaking ”; 32 as the Court of Justice of the European Union (CJ EU) puts it: For the purposes of a finding of infringement of EU competition law any anti-competitive conduct on the part of an employee is thus attributable to the undertaking to which he belongs and that undertaking is, as a matter of principle, held liable for that conduct. 33 28 In detail, see eg. WILS, W . The Undertakings as a subject of E.C. competition law and the imputation of infringements to natural or legal persons. European Law Review , 2000 (2), p. 113. 29 CJ EU judgement of 23 April 1991 C-41/90 Höfner and Elser v Macrotron , ECLI:EU:C:1991:161, par. 21. 30 CJ EU judgement of 12 July 1984 170/83 Hydrotherm , ECLI:EU:C:1984:271, par. 11. As the Court further explains in judgement of 14 December 2006 C-217/05 Confederación Española de Empresarios de Estaciones de Servicio, ECLI:EU:C:2006:784, par. 41: “ for the purposes of applying the rules on competition the formal separation between two parties resulting from their separate legal personality is not conclusive, the decisive test being the unity of their conduct on the market ” . 31 WILS, W . ( op. cit. sub 28). 32 CJ EU judgement of 21 July 2016 C542/14 SIA ‘VM Remonts’(formerly SIA ‘DIV un KO’) and Others v Konkurences padome , ECLI:EU:C:2016:578 , par. 23. 33 Ibid , par. 24.

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