EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

same group were found to be part of the same undertaking, they would not have to pay the compensation payment, which would certainly be fair). However, it perceived the danger this would involve: It is true that the applicant company might have found the use of a different criterion, taking account of the differences between the various types of industrial groups, more favourable to it. However, in view of the infinite variations, actual and possible, in group relations and the difficulties which would arise in many cases in making a hard and fast classification of groups in different categories, it must be admitted that a system of this kind might have given rise in practice to serious uncertainties, would have hindered the smooth working of the equalization scheme and would have provided a source of possible discrimination. Further developments showed, and still show, how clear-sighted European judges were at the time. As late as the 1970s, the European Court of Justice attempted to preserve the link between the concept of undertaking and legal personality by exempting agreements between a parent and an economically dependent subsidiary from the impact of then Article 85 (now 101), using as basis for its reasoning the lack of impact on competition, not the fact that the agreements were not between different undertakings ( Béguelin Import v G.L. Import Export , 1971, p. 949; Centrafarm BV and others v Sterling Drug , 1974, p. 1147). By the 1980s, however, the Court had become considerably bolder. In the Hydrotherm decision it stated: “In competition law, the term ‘undertaking’ must be understood as designating an economic unit for the purpose of the subject-matter of the agreement in question even if in law that economic unit consists of several persons, natural or legal.” ( Hydrotherm Gerätebau GmbH v Compact del Dott. Ing. Mario Andreoli & C. Sas., 1983, p. 2999, para [11]; note that this was a decision concerning Regulation 67/67, where the argument of no impact on competition was not available) The process of separating the concept of undertaking from legal personality was thus complete. The question of the legal attribution of an obligation that has thus been deprived of its primary legal anchor (when it is imposed on something that is not a legal entity) is then resolved by means of a two-step reasoning: the primary obligation is directed at an economic unit (the undertaking), only if its breach is established, will be in the second step sought the legal entity or entities that constitute this economic unit and to which the penalty for the breach of the primary obligation will be attributed (see e.g., Akzo Nobel and others v Commission, 2008, pp. I-8237, paras [54] et seq . and the case law cited therein). At first glance, this approach seems unproblematic, and indeed, for many years it seemed to have found a way of satisfactorily integrating the economic concept into

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