The Undertaking and Single Economic Entity Concepts in EU and UK Competition Law: Proposals for a Refined Approach

Abstract

The concept of an ‘undertaking’ determines the categories of actors to which the competition rules apply, as well as which of the specific rules apply. Settled case-law establishes that the concept encompasses every entity engaged in economic activity. Further, that it is not necessarily synonymous with natural or legal personality but denotes an ‘economic unit’, or single economic entity, which may be comprised of one or more persons, natural or legal. This chapter sets out the view that the EU Courts’ current approach to the notion of an undertaking creates a number of problems and inconsistencies which are difficult to resolve. It thus proposes a refined approach to the undertaking and economic entity concepts, guided by principles of UK company law. Although, the seeds for such a solution exist in the EU it would require a change of direction to that followed in some recent cases. The approach could, however, be followed post-Brexit in the UK should the relevant authorities, and courts, so decide.

Keywords: Undertaking, single economic entity, single economic unit, personal responsibility, limited liability, piercing the corporate veil

JEL Classification: K21, L40, L41, L42