EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

1. Introduction Undertaking , a term used by the authors of the founding Treaties for lack of a better option rather than with any clear conceptual intent (Bebr, 1961, p. 454), very conveniently allowed the Court of Justice to narrow or broaden the scope of the rules in competition law as it saw fit in each case (but not only in competition law; indeed, the first case law on this concept did not originate in competition law, but related to scrap compensation in the ECSC system; see Mannesmann AG v ECSC High Authority , 1961, p. 357; on this, see, e.g., Forcione, 1970, p. 1419.). Even after seventy years, however, its content is not clear. On the contrary: without a sufficiently firm theoretical idea of the concept, not only in its initial use but also in its successive case law refinements, the concept has gradually taken on contradictions which, taken together, appear to be an insurmountable obstacle to any uncontroversial theoretical construction. The changes taking place in the economy, and, consequently, in competition law itself, at the beginning of the twenty-first century throw up fresh questions to which the existing case law does not provide direct answers and even reveals its hidden weaknesses. Will it be possible to maintain the existing understanding of the concept in this new context, or will it have to be redefined in some way? Or will it be necessary to resign ourselves to concluding that there is no such thing as a single content of the concept and that as many different contents of the concept must be constructed as there are contexts of its use, as Jones (2012) suggests? In what follows, I will first recall the current prevailing understanding of the term. I will then discuss examples of actual situations that remain insufficiently addressed and examine whether the prevailing understanding offers satisfactory solutions. The limited scope of the paper will allow me to discuss only two such situations (for other issues raised by today’s economy, see e.g., Šmejkal, 2020 or Akman, 2019, p. 209). These will concern the internal relationship among joint and several debtors to a fine imposed for a competition law infringement, and the liability of the members of an undertaking for the private law consequences of a competition law infringement. In the conclusion, I will then draw on this background to suggest possibilities for the further development of the concept of undertaking. 2. The usual understanding of the concept of undertaking It is a generally accepted fact that Undertaking in European law is not primarily a legal but an economic concept. It is therefore not a thing in the legal sense (and must therefore be distinguished from the same or similar-sounding concepts of national commercial law denoting an universitas created by an entrepreneur for the exercise of their business activity, such as Unternehmen or Fond de commerce ), nor is it a subject of legal relations (a legal or natural person) or an association

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