EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

in the internal relationships among joint and several debtors or in identifying the persons responsible for damage caused, the assertion that undertaking is an economic and not legal concept turned out to offer no guidance. In its most recent decision ( Sumal ), the Court attempted to find a solution by personifying the undertaking, that is, in essence, by redefining this concept as a legal concept. This, however, has only exacerbated the problem: if the concept of undertaking is to play the role not only of a descriptive (i.e., describing which competition relationships are covered by competition law rules) but also of a constitutive concept (i.e. establishing relationships of liability based on membership in the undertaking), then it must become a real legal entity, even if only for competition law purposes. This would, however, first require the adoption of rules governing the internal functioning of such an entity (at least as regards how the consequences of its activities would be shared among its members) and, second, it would force us to define the criteria of such membership much more precisely. Presently, the rules contain a number of grey areas (joint control, negative control, majority control, agency, and other forms of coordination such as platforms - for the most recent, see Akman, 2019, p. 209) that would be unacceptable if such serious consequences were attached to membership. At the same time, this would quickly lead us to recognise the unsustainability of a uniform understanding of the concept: many of the types of interconnection sufficient for entities to qualify as a single undertaking in matters such as determining the scope for prohibiting anticompetitive agreements or merger control, clearly constitute unacceptable grounds on which to impute joint liability for competition law offences (see e.g., Jones, 2012, p. 301 or Odudu and Bailey, 2014, p. 1721). It would therefore be necessary either to accept the injustice in the area of liability (which would, of course, run up against the limits of the protection of the constitutionally guaranteed rights of those so affected) or to abandon the gains that the doctrine of undertaking has brought in other areas. Neither of these options seems very appealing. In my view, the only way to safeguard the achievements made by the doctrine of undertaking for the future is to return to a truly economic understanding of the concept. That is, to consistently attribute all legal consequences (including the existence of primary obligations) only to legal entities and to use the concept of undertaking only to define the scope of those legal consequences. Only such a conception will allow the concept of undertaking to retain its flexibility, which is increasingly necessary with the growing diversity of organisational forms in the modern economy. References [1] Akman, P., (2019). Online Platforms, Agency, and Competition Law: Mind the Gap. Fordham International Law Journal, Issue December, p. 209.

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