CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ ADDRESSEES OF ANTITRUST AND STATE AID LEGISLATION IN EUROPEAN… legal units, would therefore be considered to be a single economic unit, a single undertaking, and only it is an addressee of EU competition law, not the companies constituting it. The term undertaking is employed in numerous areas of EU law, I will however only focus (in order to make the comparison reasonable) on broadly defined competition law, i.e. on antitrust rules, regulating anticompetitive agreements 1 and abuse of dominance, 2 and on state aid rules; 3 these practices are covered by the same Chapter of the TFEU – Rules on Competition. 4 The peculiar approach of EU law towards its addressees needs to be explained using both national and international law; the former, because EU competition law is enforced on the EU as well as national level, the latter, because international cooperation in matters of competition law enforcement is becoming more and more necessary. This may cause problems, because the doctrine of an economic unit is not characteristic for national laws (at least in continental systems) and is very difficult to define in international law. The aim of this article is therefore to analyse to what extent the EU was successful in projecting the concept of an undertaking as an economic unit into national and international law. In order to fulfil this aim, I will first recall how the term undertaking is defined in the jurisprudence of the Court of Justice of the European Union (hereinafter referred to as the “CJ EU”) on antitrust and state aid law (Chapter II); I will then focus on international treaties concerning competition law, entered into by the EU (Chapter III). Thereafter other international treaties and legal documents of international organizations, concerned with competition law, will be analysed (Chapter IV). And finally, I will evaluate the implementation of EU competition law in two states with seemingly identical legal traditions, in the Czech Republic and Slovakia (Chapter V). Undertakings in EU Competition Law The term undertaking is employed systematically in the TFEU’s Chapter on competition (Arts. 101 – 109 TFEU), it is however also used in other provisions of primary law, in particular those on the right of establishment (Art. 49 TFEU), transport (Art. 96 TFEU) or industrial policy (Art. 173 TFEU); such provisions are often addressed only to a subset of this broad term, to public undertakings or small and medium-sized undertakings. It is also frequently employed in sectoral regulation, concerning e.g. electronic communications 5 or energy. 6 Even though interpreted in the same way, I will however further concentrate only on the provisions on antitrust (Articles 101 and 102 TFEU) and state aid (Article 107). II. 1 Treaty on the Functioning of the European Union (hereinafter referred to as “TFEU”), Art. 101. 2 TFEU, Art. 102. 3 TFEU, Art. 107. 4 Traditionally, merger control is also deemed to be a part of competition law, and it works with the same concepts, it is however not prescribed for by the TFEU, but by a specific regulation, and it is often not covered by international agreements on competition law. 5 See e.g. Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive). 6 See e.g. Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005.

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