The concept of 'undertaking' under EU and Maltese competition law

Abstract

Various entities perform a plethora of activities in everyday life. Whether these entities and their activities fall within the scope of EU competition rules depends on their characterization as 'undertakings'. This thesis provides a comprehensive and detailed analysis of the notion of 'undertaking' within EU and Maltese competition law through European Commission decisions, the EU courts' jurisprudence and the judgments of the Commission for Fair Trading in Malta. Alas, it was not possible to analyze the Office for Fair Competition decisions since they are not publicly published, albeit an effort was made to obtain some form of information. The innovations on the notion of 'undertaking' as well as the pitfalls and inadequacies have been clearly spelt out. Since the EC Treaty, now the TFEU, provides no definition of what is meant by the word 'undertaking', the first chapter is devoted to a discussion on the origins of this important notion and on how the EU courts have construed the meaning of the same. The main pointer to classify an entity as an 'undertaking' or otherwise is whether the entity performs an economic activity and this thesis dedicates a whole chapter on this important issue. The Commission and the EU courts' approach towards the interpretation of the notion of 'undertaking' evolved throughout the years and this also transpires from the various cases mentioned throughout this thesis. While the EU courts have maintained a functional approach in the categorization of entities as 'undertakings', various Advocate Generals and practitioners have criticized this approach. Apart from discussing these criticisms, this thesis also goes through the various notices and guidelines issued by the European Commission in order to clarif This thesis is geared towards various objectives. While trying to portray a complete picture of those entities which fall within the ambit of competition rules, it also recognizes those entities which pose problems in their characterization as 'undertakings'. Hence, this thesis explains how certain entities are shielded from 4 the application of competition rules. This is seen through an analysis of the private and the public sphere and those 'undertakings' which form a single economic entity. The above is also brought into discussion within a Maltese competition law context through judgments of the Malta's Commission for Fair Trading; judgments which are closely based on European Commission decisions and the EU courts' jurisprudence. All in all the thesis should provide a useful analytical background on the notion of 'undertaking' and helps us to appreciate more the importance of this notion and the need for there to be a clear and consistent approach in identifying 'undertakings' as subjects of EU competition rules.