CYIL vol. 9 (2018)

MICHAL PETR CYIL 9 ȍ2018Ȏ Concerning official legal texts, the activities of the OECD are however more limited. Principal positions among them take the recommendations of the OECD Council; 37 seven recommendations have been adopted so far in the area of competition law. 38 When analysing the content of these recommendations, it is striking that the term undertaking (or any equivalent thereof ) is carefully avoided. For example, the recommendation on cartel enforcement 39 only talks about “competitors” 40 and the recommendation on merger review 41 about “merging parties”; even the most recent recommendation on international cooperation only use the neutral (and undefined) term “enterprise”. 42 It is thus clear that even the formal legal documents of the OECD work with terminology that is not necessarily aligned with the EU concept of “undertakings”. 2. UNCTAD The activities of UNCTAD linked to competition law and policy are based on the Set of Multilaterally Agreed Principles and Rules for the Equitable Control of Restrictive Business Practices of 1980 (hereinafter referred to as “UNCTAD set”). Similarly to the OECD, this document also employs the term “enterprises”, it however also includes a definition thereof, which suggests it should be compatible with the EU notion of an undertaking: “Enterprises means firms, partnerships, corporations, companies, other associations, natural or juridical persons, or any combination thereof, irrespective of the mode of creation or control or ownership, private or State, which are engaged in commercial activities , and includes their branches, subsidiaries, affiliates, or other entities directly or indirectly controlled by them .” 43 The UNCTAD is also responsible for a model competition law, serving in particular for those countries that only intend to introduce competition policy; the model law uses the same definition of an enterprise. 44 It is thus clear that even under international law, it is possible to set a definition of addressees of competition law which corresponds to the EU notion of an undertaking. National Law In theory, the national law of EU Member States should be in line with EU law. EU competition law has a limited scope and applies only to practices that are capable of appreciably effecting competition within the Single market, 45 whereas national competition 37 Convention on the Organisation for Economic Co-operation and Development, Art. 5 (b). 38 List of the recommendation is available on the OECD web site [accessed 25 June 2018]. 39 Recommendation of the OECD Council Concerning Effective Action against Hard Core Cartels of 25 March 1998, C(98)35/FINAL – C/M(98)7/PROV. 40 Ibid , Art. I (A) (2) (a). 41 Recommendation of the OECD Council on Merger Review of 23 March 2005, C(2005)34 – C/M(2005)7/PROV. 42 Recommendation of the OECDCouncil Concerning International Co-operation on Competition Investigations and Proceedings of 16 September 2014, C(2014)108 – C/M(2014)10. 43 UNCTAD set, Art. B (i) (3); emphasis added. 44 The Model Law on Competition, Chapter II (1) (a). The model competition law is available on the UNCTAD web site [accessed 25 June 2018]. 45 In detail, see Commission Notice – Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty , OJ C 101, 27. 4. 2004, pp. 81-96. V.

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