University of Amsterdam
EUROPEAN COMPETITION LAW
INTERNATIONAL AND EUROPEAN LAW: COMPETITION LAW TRACK
Jessica F. Qiu | 2024-2025
, 1. INTRODUCTION TO EU COMPETITION LAW
1.1. Main norms of competition law
+ State aid law prohibition when it restricts competition [Art 107 TFEU]
1.2. Undertaking
● Relevance: why is notion of undertaking important?
1. Subjective scope of application of competition rules
→ undertakings as the only addressees, if not undertaking, no competition law
[cases: state questioned as undertaking or not]
2. Assigning responsibility and liability: undertaking liable
[cases: group of companies, single economic entity questions]
3. Separation of EU competition law to other areas of law: free movement and internal
market law for situations where there is no undertaking but restriction of competition
● Definition:
→ Casuistic and functional approach, flexible definition (>< formalistic and structural approach)
○ Hofner and Elser: undertaking = entity engaged in economic activity regardless of
legal status of the entity
○ Lithuanian Chamber of Notaries: economic activity = offering goods or services on a
given market BUT prerogatives of public authority do not have economic character
2
, a) Offering goods or services on a given market factual
b) No need of profit motive or economic purpose
c) Sport also economic activity
d) Regardless of legal status of the entity and the way it is financed
● Not undertakings:
○ Non-economic activities:
a) Solidarity (social protection such as social security, pensions, health
insurance, health care) → depends whether market or solidarity context
➢ Poucet: not an undertaking because benefits the same for all and
depending on their income
➢ Federation francaise: undertaking because benefits depending on
contributions → competition with other life assurance companies
➢ Albany international: pension fund as undertaking
b) Activities connected with the exercise of the powers of a public authority that
are not economic [Wouters]
c) Procurement that is ancillary to a non-economic activity [FENIN: when
activity cannot be dissociated with purpose of solidarity]
○ Non-economic professions:
a) Employees: part of the undertaking that employ them so forming economic
unit with them → cannot be considered as undertakings unless carrying
independent business
b) Trade unions: not an undertaking when acting as an agent of its members and
carrying out only the agreements made → BUT undertaking when acting in
its own right
c) Collective labour relations: not when out of solidarity [Albany]
d) Collective agreements of self-employed persons: not when imbalance in
bargaining power → false self-employed [FNV Kunsten]
● Single economic activity doctrine: not applicable to agreements that form a single economic
activity (i.e.: parent and subsidiary company, principal and agent)
⚠️ parent company can be held liable for subsidiary violations of competition law
⇒ when relationship too close forming single economic unit [Sumal, Aksel Nobel]
○ Test of decisive influence: whether parent company can and does in fact exercise
decisive influence over the other (CJEU allowing this a lot, if can influence anything, then liable)
>< unable to influence any relevant behaviour
- Parent and wholly owned subsidiaries: if 100% shareholding, then decisive
influence
3
, - Majority shareholders: not about majority or not presumption
- Minority shareholders: can also have decisive influence
- Parents of a joint venture: autonomy of a full joint-venture does not prevent
parent company from exercising decisive influence
→ undertakings unable to rebut this presumption unless actual legal arrangement
4
EUROPEAN COMPETITION LAW
INTERNATIONAL AND EUROPEAN LAW: COMPETITION LAW TRACK
Jessica F. Qiu | 2024-2025
, 1. INTRODUCTION TO EU COMPETITION LAW
1.1. Main norms of competition law
+ State aid law prohibition when it restricts competition [Art 107 TFEU]
1.2. Undertaking
● Relevance: why is notion of undertaking important?
1. Subjective scope of application of competition rules
→ undertakings as the only addressees, if not undertaking, no competition law
[cases: state questioned as undertaking or not]
2. Assigning responsibility and liability: undertaking liable
[cases: group of companies, single economic entity questions]
3. Separation of EU competition law to other areas of law: free movement and internal
market law for situations where there is no undertaking but restriction of competition
● Definition:
→ Casuistic and functional approach, flexible definition (>< formalistic and structural approach)
○ Hofner and Elser: undertaking = entity engaged in economic activity regardless of
legal status of the entity
○ Lithuanian Chamber of Notaries: economic activity = offering goods or services on a
given market BUT prerogatives of public authority do not have economic character
2
, a) Offering goods or services on a given market factual
b) No need of profit motive or economic purpose
c) Sport also economic activity
d) Regardless of legal status of the entity and the way it is financed
● Not undertakings:
○ Non-economic activities:
a) Solidarity (social protection such as social security, pensions, health
insurance, health care) → depends whether market or solidarity context
➢ Poucet: not an undertaking because benefits the same for all and
depending on their income
➢ Federation francaise: undertaking because benefits depending on
contributions → competition with other life assurance companies
➢ Albany international: pension fund as undertaking
b) Activities connected with the exercise of the powers of a public authority that
are not economic [Wouters]
c) Procurement that is ancillary to a non-economic activity [FENIN: when
activity cannot be dissociated with purpose of solidarity]
○ Non-economic professions:
a) Employees: part of the undertaking that employ them so forming economic
unit with them → cannot be considered as undertakings unless carrying
independent business
b) Trade unions: not an undertaking when acting as an agent of its members and
carrying out only the agreements made → BUT undertaking when acting in
its own right
c) Collective labour relations: not when out of solidarity [Albany]
d) Collective agreements of self-employed persons: not when imbalance in
bargaining power → false self-employed [FNV Kunsten]
● Single economic activity doctrine: not applicable to agreements that form a single economic
activity (i.e.: parent and subsidiary company, principal and agent)
⚠️ parent company can be held liable for subsidiary violations of competition law
⇒ when relationship too close forming single economic unit [Sumal, Aksel Nobel]
○ Test of decisive influence: whether parent company can and does in fact exercise
decisive influence over the other (CJEU allowing this a lot, if can influence anything, then liable)
>< unable to influence any relevant behaviour
- Parent and wholly owned subsidiaries: if 100% shareholding, then decisive
influence
3
, - Majority shareholders: not about majority or not presumption
- Minority shareholders: can also have decisive influence
- Parents of a joint venture: autonomy of a full joint-venture does not prevent
parent company from exercising decisive influence
→ undertakings unable to rebut this presumption unless actual legal arrangement
4
