The Boundaries of an Undertaking in EU Competition Law

"The concept of an undertaking is central both to the question of whether the EU competition law rules apply to the conduct of an entity and, if so, which of those rules apply. Article 101 of the Treaty on the Functioning of the European Union (TFEU) deals with the joint conduct of two or more undertakings—agreements and concerted practices between undertakings and decisions by associations of undertakings which have as their object or effect the prevention, restriction or distortion of competition. Article 102 focuses on single-firm conduct—prohibiting an undertaking which holds a dominant position in the EU or a substantial part of it from committing an abuse of that dominant position, whilst the EU Merger Regulation (EUMR) deals with changes to the structure of competition resulting from corporate reorganisations between undertakings."

"This article seeks to determine the boundaries of an undertaking in EU competition law more broadly, taking account of some important recent developments in the case law.

It commences in Section B by examining some of the core cases which establish how the notion of an undertaking is applied to natural persons, legal persons, and groups of persons (such as principal and agent, parent and subsidiaries and parents and JV) and seeks to clarify the principles and policy underpinning and influencing them. In Section C the implications of the case law are assessed and it is considered both whether the cases support the view that there is a single concept of an undertaking which applies throughout EU competition law and/or whether such an approach is desirable. In the light of this and, in particular, the policy objectives underpinning the economic unit doctrine, Section D discusses whether there is a need for a more holistic approach to be taken to the concept of an undertaking, requiring some reconsideration of, and retrenchment in, the case law."