CYIL vol. 9 (2018)

MICHAL PETR CYIL 9 ȍ2018Ȏ Undertakings are not defined in the written law, but are extensively discussed in jurisprudence and professional literature. 7 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”. 8 For the purposes of this article, the term “entity” is decisive. The jurisprudence adds that the EU competition law “ is aimed at economic units which consist of a unitary organization of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision”. 9 The crucial characteristic however is 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”. 10 An undertaking as an economic unit is thus defined by the actual economic conditions in the market, not the legal characteristic of the person concerned. This point is difficult to grasp for lawyers not specializing in competition law, but even though undertakings are addressees of competition law, they do not have to be themselves subjects of law. As will be discussed below, such a concept is difficult to apply to international as well as national law. III. Undertakings in International Treaties Provisions on competition law are typically not the only subject of international treaties, entered into by the EU. As a matter of principle, such provisions are part of broad agreements on cooperation with other states; as the exclusive competence of the EU is frequently not given in such cases, they typically take the form of mixed agreements. 11 For the purposes of this article, it is decisive that not only are the agreements concluded by the EU binding upon the EU institutions and the Member States and form an integral part of the EU law, 12 but also that they may be interpreted by the CJ EU. 13 8 CJ EU judgement of 23 April 1991 C-41/90 – Höfner and Elser v Macrotron , ECLI:EU:C:1991:161, par. 21. 9 General Court judgement of 10 March 1992, T-11/89 Shell v. Commission , ECLI:EU:T:1992:33, par. 311. 10 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 ” . 11 In detail to mixed agreements, see e.g. CRAIG, P., DE BÚRCA, G.: EU Law. Text, Cases and Materials. Sixth Edition. Oxford University Press, 2015, pp. 352 and 353. 12 See e.g. CJ EU judgement of 30 April 1974 181/73 Haegemann v Belgian State , ECLI:EU:C:1974:41, par. 5. 13 Ibid , par. 6. In detail, see e.g. CRAIG, P., DE BÚRCA, G., op. cit. sub 11, pp. 372-374. 7 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.

176