EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

of such subjects (such as Societas or Konzern ). It is an economic unit acting uniformly in economic relations on the supply side (as regards the exclusion of units acting only on the demand side of competition, see FENIN v Commission , 1999, pp. I-6295). At first sight, this basic statement manages, in very practical terms, to avoid the limitations that defining competition rules with reference to legal concepts would bring: if competition law constructed its hypotheses according to the boundaries of legal entities, it would not be able to adequately respond to situations where their boundaries are defined only in formal terms within a single economic unit (the most straightforward case is a 100% subsidiary) and would be, depending on the situation, either overreaching or underreaching. The same would then be true if it took as its basis a thing in the legal sense, an universitas , since this is conceptually always owned by a specific legal entity and its boundaries cannot be satisfactorily overpassed in this way (the solution would seem to be to use the institution of co-ownership and to state that the undertaking as a collective thing so understood is subject to the co-ownership of all the subjects together forming the relevant economic unit; this is, however, incompatible with other areas of law, in particular corporate law: such co-owners would have to decide on the thing jointly and would have to settle among themselves as to the costs and benefits of the operation of the thing, etc.; such a solution is completely unviable.. However, the joy of an elegant solution is short-lived. Despite its unusually close connection to the underlying economic reality, competition law remains law: it imposes obligations, and these are inconceivable except as obligations of legal entities. Who, then, are these obligations actually imposed on if the underlying norm says that something must or must not be done by an economic entity? The pressing issue of the relationship between economic and legal reality has therefore not been resolved by declaring the concept of undertaking to be an economic concept but is merely pushed into the background for a moment, only to return with even greater urgency in the next stage. In the Mannesmann decision (1961), already cited, the European Court of Justice dealt with this question in a legally traditional manner, stating: “The creation of every legal entity in the field of economic organisation involves the establishment of a separate undertaking; a particular economic activity cannot be regarded as forming a single unit in law when the legal effects of that activity must be separately attributed to several distinct legal entities”. The Court lent serious consideration to the question of whether to exceed the boundaries of the legal entity by reference to economic unity, since this would certainly lead to a fairer solution in the case at hand (in the present case, the obligation to pay a compensation payment when purchasing scrap did not apply to cases where the scrap was processed within the same undertaking – if two companies from the

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