EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

But this is a somewhat surprising reasoning: as we explained above, the prevailing understanding is that the reason a company is fined is not that it has used another company (a subsidiary) as a kind of living instrument, but that it is – or was at the time of the offence – part of the same undertaking. It is not necessary, however, for one of them to be deprived of any autonomy and reduced to a mere living instrument for them to form part of a single undertaking. Rather, it comes down to the long-term unity of economic interests and the resulting joint action on the market. Why, then, is this condition imposed? If we look at the history of this line of jurisprudence, we find that it has its origins in the Imperial Chemicals decision ( Imperial Chemical Industries Ltd. v Commission , 1972, p. 619, paras [132] et seq. ). However, this decision dates back to a time when the concept of undertaking had not yet overstepped the boundary of legal personality. It did not therefore apply the two-step test described above, but looked at whether the parent company, as a separate undertaking in the prevailing understanding of the time, was involved in the conduct found (in this case a concerted practice, which facilitated the test) in addition to the undertaking-subsidiary that operated directly in the market in question (see para [141], where the ECJ refers to this company as “ the applicant undertaking ”), and whether it should therefore be fined. The persistence of this line of jurisprudence may offer us a solution. Let us recall again that an undertaking is an economic concept, not a legal one. This means, however, that it is incorrect to say that the primary obligations of competition law are directed at the undertaking and that only fines for breaches of them are directed at the legal entities belonging to them. This is conceptual nonsense – an obligation, as a purely legal phenomenon, must by definition be directed at a legal entity as the only possible point of its attributability, not at an economic entity. If I were to attribute an obligation to an economic entity, I would be depriving it of its extra-legal nature and I would instead be drawing it into the law as a new kind of legal entity. A correct understanding of the economic nature of the concept of undertaking must therefore lead us to the conclusion that it is in fact the relevant legal entities that are obliged by the primary norm to behave in such a way that the undertaking formed by them does not act in competition in a manner contrary to the rules of competition law. Thus, legal entities do not actually make an appearance at the stage when fines are imposed. They are there from the outset; they are – of course – direct actors in the competitive relationship. The concept of undertaking only tells us the extent of their obligations in those relationships. This will then allow us to answer, without any major theoretical problems (which certainly does not mean that it will be easy in practice), the question of how far is each of the individual persons forming a single undertaking ultimately liable

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