CYIL vol. 12 (2021)

michal petr CYIL 12 (2021) systems and which “ strongly encouraged ” private entities to consider the long-term security risks associated with doing business with these companies. In the European Union, the Czech Republic was among the first Member States to designate Huawei a security threat, at the end of 2018. 8 Other Member States followed. In many countries where Huawei’s equipment was excluded from the 5G networks, the company complaint that such a measure is – among others – anticompetitive, starting in the United States in 2018. 9 Indeed, from purely economic point of view, the fact that a key competitor is excluded from competition is bound to have negative economic effects. 10 Even though we are not aware of any such complaint in the European Union, we will further discuss the question whether intervention under the competition laws, both EU and national ones, is permissible in Europe. 1. EU Competition Law In this chapter, we will first briefly outline the basic principles of EU competition law, followed by a discussion on how much these rules may be applied to the conduct of public authorities. 1.1 The Rules on Competition For the purposes of this article, we understand competition law as the regulation of certain coordinated conduct of the undertakings, the so-called anticompetitive agreements, and of unilateral conduct of undertakings with significant market power, i.e., the abuse of a dominant position. The legal basis for the competition law is constituted in the Treaty on the Functioning of the European Union (TFEU); Article 101 deals with anticompetitive agreements, Article 102 with abuse of dominance. For our further considerations, it is important to realise that EU competition law is addressed to undertakings. The term undertaking is not defined in written competition law, it is nonetheless extensively discussed in jurisprudence and professional literature. 11 According to the general definition: “[ T ] he 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” . 12 For the purposes of this article, the concept of an economic activity is of utmost importance. In principle, it consists of “ offering goods or services on the market ”; 13 conversely, the activities of Member States, performing “ a task in the public interest which forms part of 8 Warning of the Czech Cybersecurity Agency of 17 December 2018, available at (in Czech only): https:// nukib.cz/cs/infoservis/aktuality/1303-software-i-hardware-spolecnosti-huawei-a-zte-je-bezpecnostni-hrozbou/ (accessed 1 September 2021). 9 The submission to the Federal trade Commission from 20 August 2018 is available at: https://www.ftc.gov/ policy/public-comments/2018/08/20/comment-ftc-2018-0049-d-1896 (accessed 1 September 2021). 10 For example, according to the study published by an economic consultancy, the costs of building 5G networks in the US will increase by USD 1 billion. OXFORD ECONOMICS. Restricting Competition in 5G Network Equipment. An Economic Impact Study (2019). Available at: https://resources.oxfordeconomics.com/hubfs/ Huawei_5G_2019_report_V10.pdf (accessed 1 September 2021) 11 In detail, see e.g., 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. 12 CJ EU judgement of 23 April 1991 C-41/90 Höfner and Elser v Macrotron , ECLI:EU:C:1991:161, par. 21. 13 CJ EU judgement of 18 June 1998 C-35/96 Commission v. Italy, ECLI:EU:C:1998:303, par. 36.

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