EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

Concept of Undertaking in the Light of the Contemporary Economy Robert Pelikán Charles University in Prague Faculty of Law, Department of Business Law náměstí Curieových 901/7, Prague, 116 40 Czech Republic e-mail: robert.pelikan@wolftheiss.com

Abstract After some hesitancy in the 1960s and 1970s, the concept of undertaking went beyond the boundaries of legal subjectivity and became independent from the concept of legal subject. Thus, a single undertaking can contain multiple legal entities and, conversely, a single entity can be part of multiple undertakings. Infringements of primary competition law rules are identified at the level of the undertaking (thus defined) and only secondary consequences (liability) are attributed to the entities identified as having participated in the offending undertaking. With the way the dynamics of the economy evolved at the beginning of the twenty-first century, however, questions began to arise which this concept could not provide a satisfactory answer: to the question of the internal relationship among the joint and several debtors (thus identified), or the question of the imputability of private liability to persons who, although part of the undertaking, did not participate in the infringement. The Court’s decision in Sumal attempted to resolve the problem by personifying the undertaking, but this only raises new questions and leads to solutions incompatible with other parts of the law. If the notion of undertaking is to be a satisfactory basis for competition law even in today’s dynamic economy, it is necessary to abandon not only this attempt but also the two-stage analysis that preceded it: even the primary rules of competition law do not in fact address the undertaking but the legal entities that create the undertaking, while the notion of undertaking as an economic concept merely defines what conduct is permitted from those legal entities and what is not. Keywords: undertaking, single economic unit, competition law JEL Classification: K21

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