CYIL vol. 9 (2018)

MICHAL PETR CYIL 9 ȍ2018Ȏ The argument of the court was based on the harmonization of Czech and EU law, which stems from the 1995 association agreement; 53 the Czech Republic undertook to make its laws compatible with the EU ones, among others in the area of competition law. 54 As in other such agreements discussed above, the association agreement employs the term “undertaking” without further explaining it, 55 but implicitly relying on the CJ EU case law. 2. Slovakia In Slovakia, national competition law is governed by the Slovak Competition Act. 56 Unlike the Czech Competition Act, it does not use the termundertaking, but “entrepreneur”, which is nonetheless defined in a way resembling the Czech law. 57 Notwithstanding this fact and the fact that Slovakia was under an identical obligation to approximation as the Czech Republic, 58 the Slovak Competition Act is systematically interpreted as having only legal, not economic entities as its addressees; 59 the fact that this is not in line with EU law is expressly acknowledged by the Slovak Competition Authority (hereinafter referred to as “SCA”). 60 The Slovak Competition Act is thus openly not harmonised with the EU notion of an undertaking. Conclusions For the area of antitrust and state aid, EU competition law developed a concept of an economic unit called “undertaking”; this concept doubtlessly corresponds with the economic reality, it is nonetheless difficult to translate into written law. This may be demonstrated by the example of two countries with practically the same legal traditions, the Czech Republic and Slovakia, where, despite identical obligations under EU law, addressees of competition law are defined in a different way. The problem is however particularly severe in international law. In cases of international agreements based on EU law, interpreted by the CJ EU, in particular the EEA Agreement and the association agreements, the term “undertaking” is used without further details; the precise content of this notion is left for interpretation, based on EU jurisprudence. 53 Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Czech Republic, of the other part. 54 Ibid , Arts. 69 and 70. 55 Ibid , Art. 64. 56 Act. No. 136/2001 Coll., on the protection of competition, as amended. The Slovak Competition Act is available in English at: < http://www.antimon.gov.sk/data/files/403_act-no-136_2001-valid-from-172014.pdf > [accessed 25 June 2018] (unofficial translation of the Slovak Competition Authority). 57 Slovak Competition Act, Section 3 (1), reads as follows: “For the purpose of this Act, enterpreneur means an entrepreneur pursuant to special legislation, as well as natural person and a legal person, their associations, and associations of these associations, with respect to their activities and conduct that are related, or may be related to competition, regardless of whether or not these activities and conduct are aimed at making a profit” . 58 Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Slovak Republic, of the other part, Arts. 64, 69 and 70. 59 See e.g. KALESNÁ, K.: Kto môže niesť zodpovednosť za porušenie súťažného práva? [Who may be Responsible for Infringements of Competition Law?]. Právny obzor , 2009 (2), p. 123. 60 The SCA published its commentary to the Slovak Competition Act on its web site; with reference to addressees of competition law, it states that “The term entrepreneur referred to in Section 3 (1) of the act partially differs from the concept of an ‘undertaking’, which is part of the EU law” (author’s translation). The SCA’s commentary is available (in Slovak) at: [accessed 25 June 2018]. VI.

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