Leeway of Member States in Shaping the Notion of an ‘Undertaking’ in Competition Law

Abstract

While generally the notions of an undertaking accepted within national competition laws are very similar or even identical to the notion of an undertaking adopted under Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), there are nevertheless still some divergences existing in that respect. The present article argues that Member States are fully allowed to widen the national concept of an undertaking in comparison with the EU competition law, because, among others, such an extension takes the relevant national norms outside the (personal) scope of application of Articles 101 and 102 of TFEU and does not infringe the convergence rule (included in Article 3(2) of Regulation 1/2003). On the other hand, Member States are not allowed to narrow the national concept of an undertaking as compared with the one accepted under Articles 101 and 102 of TFEU. The restriction of the discussed notion within the national competition law as compared with that accepted under Articles 101 and 102 of TFEU is always carried out within the scope of application of the above-mentioned Articles of the TFEU, and the principle of supremacy of EU law over national law clearly excludes such national actions.