The Boundaries of an Undertaking in EU Competition Law

Abstract

This article considers how the boundaries of an undertaking or economic unit are identified in EU competition law. As an undertaking may be made up of several persons, it is not always easy to know when it comprises a natural person, a legal person or a group of persons (such as principal and agent, parent and subsidiaries or parent(s) and JV) and, consequently, whether such persons are acting unilaterally or jointly for the purposes of the competition law rules. This article scrutinizes the two principal lines of cases dealing with the notion of an undertaking as an economic unit and the relationship between them. It seeks to elucidate the principles and policy underpinning and influencing them and questions whether there is, or should be, a single concept of an undertaking which applies throughout EU competition law and, if so, how it is defined. It also discusses whether there is a need for a more holistic approach to be taken to the concept of an undertaking in the future, requiring some reconsideration of, and retrenchment in, the case-law.