European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

Articles 101 and 102 TFEU refer to the notion of undertaking but do not define it. According to the case law, an undertaking is characterized by its economic autonomy: an entity is an undertaking under Article 101 of the Treaty when it carries out an economic activity and operates independently on the market. Any activity consisting in offering goods or services on a given market is an economic activity . The marketing of products or services thus constitutes clear evidence of such activity . Thus, an artist exploiting his artistic performance has been held to be an undertaking , as has an inventor, who, by licensing his patents, has commercially exploited his invention . Also held to be undertakings are associations of undertakings, associations of associations of undertakings whose lack of commercial activity does not exclude the application of the competition rules, where the activity of their members produces restrictive effects , national football associations where the practice of football is an economic activity . An economic entity organized according to cooperative principles can also classify as an undertaking, regardless of its mutualist nature . Neither the fact that an economic operator belongs to a strictly regulated liberal profession nor the intellectual, technical or specialized nature of the service provided can prevent application of the EU competition rules .

Claims of sovereign immunity cannot be made in respect of the behavior of an entity relative to its trading of goods or services on the market . Where a bank has not been entrusted with the operation of services of general economic interest, it may be subject, in its capacity as an economic operator to proceedings under Article 101 TFEU . This is equally the case for a public entity for the placement of employees, which exercises an economic activity . On the other hand, a purchasing activity does not amount to an economic activity within the meaning of the competition rules if the purchased products are used for an activity that is purely social in nature .

An undertaking can be a natural person , a legal person, a body governed by public law , a person governed by private law, a non-profit making establishment , or a grouping with no legal personality. The criterion by which an undertaking is defined is material not organic. No legal form is excluded in theory ; only the non-economic nature of certain activities of a body can cause it to avoid the reach of competition law. The State, public bodies, local authorities are not undertakings within the meaning of competition law when they implement the powers exercised by a public authority . This is also the case of social security organizations where their object is not economic but fulfils an exclusively social function based on the principle of national solidarity and is entirely non-profit-making, with benefits paid being statutory benefits and bearing no relation to the amount of the contributions . However, a non profit-making organization managing an old-age pension system designed to top up the basic compulsory scheme , or a pension fund , which itself determines the amount of the contributions and benefits and operates in accordance with the principle of capitalization , is an undertaking within the meaning of competition law. The designation of a non-profit organization as an undertaking “exercising an economic activity” depends on the circumstances in which it was designated and the margin of negotiation enjoyed by that body as to the details relating to its appointment . Members of a self-employed profession, such as notaries, are also considered as undertakings in the exercise of their activities which do not fall within the exercise of public authority prerogatives, insofar as the exercise of their profession involves, as a principal activity, the provision of several distinct services in return for remuneration .

The undertaking represents the basic unit active on the market which means that competition law is not applicable within the undertaking itself but only with regard to its relations with other undertakings : any economic entity even if made up of several natural or legal persons must be qualified as an undertaking .

An authorized representative is an undertaking and is subject to the rules on anticompetitive agreement where he/she exercised an independent activity and does not form an economic unit with the principal . The financial and commercial risk assumed by the commercial agent operating as an undertaking distinguishes it from the mere representative . Motor-vehicle agents are thus considered to be independent intermediaries even though they are part of an integrated distribution network . Similarly, the fact that conduct takes place in the context of a relationship between an undertaking and its service provider supplying technological measures does not remove it from the scope of Article 101, when the provider intervenes on the market as an operator fully forming part of the economic chain for the exploitation of the products in question .

Case C-41/90 Höfner and Elser v Macrotron [1991] ECR I-1979, LawLex200400002917JBJ, and, for a reminder of the principle, see Case C-49/07 MOTOE [2008] ECR I-4863 LawLex200900000066JBJ.

In the absence of any economic activity, a person cannot, in his capacity as an associate or shareholder, be qualified as a company, Case C-189/02 P, C-202/02 P, C-205/02 P à C-208/02 P and C-213/02 P Dansk Rørindustri and others v Commission [2005] ECR I-5425, LawLex200600002415JBJ. On the effect of the remuneration on the nature of the activity see Case C-138/11 Compass-Datenbank GmbH, Judgment of 12 July 2012, LawLex201200001482JBJ, holding that despite the fact that the consultation and/or the provision of print-outs of data bases are carried out in exchange for remuneration, the activity of a public authority consisting in the storing, in a database, of data which undertakings are obliged to report on the basis of statutory obligations, in permitting interested persons to search for that data and/or in providing them with print-outs thereof does not constitute an economic activity.

Case 172/80 Züchner v Bayerische Vereinsbank [1981] ECR 2021, LawLex200500004027JBJ; Commission Decision No 85/77/EEC of 10 December 1984, Uniform Eurocheques, LawLex200500004018JBJ; No 92/212/EEC of 25 March 1992, Eurocheque: Helsinki Agreement, LawLex200400003677JBJ.

Case C-41/90 Höfner and Elser v Macrotron [1991] ECR I-1979, LawLex200400002917JBJ

Case T-319/99 FENIN [2003] ECR p. II-357, LawLex200400003545JBJ.

See Commission Decision No 76/29/EEC of 2 December 1975, AOIP/Beyrard, LawLex200400002391JBJ, inventor; No 78/516/EEC of 26 May 1978, Rai/Unitel, LawLex200500004034JBJ, artist; No 2003/600/EC of 2 April 2003, French beef, LawLex200500004520JBJ, farmer. Comp., Case C-22/98 Becu and others [1999] ECR I-5665, LawLex200400003595JBJ, refusing the status of undertaking to employees; Case C-309/99 Wouters and others [2002] ECR I-1577, LawLex200400003517JBJ, classifying a lawyer exercising an economic activity as an undertaking; TUE, 2 février 2022, aff. Case T-799/17 Scania AB, Scania CV AB and Scania Deutschland GmbH, Judgment of 2 February 2022, LawLex202200000822JBJ: restating that the concept of an undertaking within the meaning of EU competition law  is to be understood as referring to an economic unit even if, in law,  that economic unit consists of several natural or legal persons,  including employees with authority to act on behalf of the undertaking.

Commission Decision No 85/206/EC of 12 December 1984, Aluminium imports from eastern Europe, LawLex200500004013JBJ: a foreign trade organization; Case 118/85 Commission v Italy [1987] ECR 2599, LawLex200500003945JBJ, for a public body with no legal personality separate from that of the State but exercising an economic activity; Case C-41/90 Höfner and Elser v Macrotron [1991] ECR I-1979, LawLex200400002917JBJ: a public entity for the placement of employees can be classified as an undertaking under Article 102 TFEU; Commission Decision No 98/538/EC of 17 June 1998, Amministrazione Autonoma dei Monopoli di Stato, LawLex200400002935JBJ: a public body with no legal personality separate from that of the State is an undertaking within the meaning of Article 102 TFEU; Case T-128/98 Aéroports de Paris v Commission [2000] ECR II-3929, LawLex200400002977JBJ; Commission Decision No 2001/663/EC of 15 June 2001, Eco-Emballages, LawLex200400002642JBJ: a local authority collecting a fee for the collection and management of waste, which is passed on to a private company, constitutes an undertaking.

According to the Court of Justice, the fact that the offer of goods and services is not for profit does not prevent the entity carrying out those operations on the market from being regarded as an undertaking if said offer is in competition with other profit-making operators, see Case C-222/04 Cassa di Risparmio di Firenze and others [2006] ECR I-289, LawLex200800000247JBJ; Case C-49/07 MOTOE [2008] ECR I-4863 LawLex200900000066JBJ.

A foundation which is non profit making and not itself economically active may therefore be fined for the anticompetitive conduct  implemented by the subsidiary over which it exercises a decisive influence: Case C-440/11 P Stichting Administratiekantoor Portielje & Gosselin Group NV, Judgment of 11 July 2013, LawLex201300001113JBJ.

Case C-364/92 SAT Fluggesellschaft v Eurocontrol [1994] ECR I-43, LawLex200400003665JBJ. See also Case C-309/99 Wouters and others [2002] ECR I-1577, LawLex200400003517JBJ: the fact that a professional order is subject to the rules of public law does not remove it from the scope of application of the rules of competition.

Case C-159/91 and C-160/91 Poucet and Pistre v AGF and Cancava [1993] ECR I-637, LawLex200400003673JBJ.

Whether membership is voluntary, see especially, Case C-244/94 FFSA and others v Ministère de l'Agriculture et de la Pêche [1995] ECR I-4013, LawLex200400003644JBJ; or mandatory, Case C-115/97 through C-117/97 Brentjens' [1999] ECR I-6025 LawLex200400003594JBJ.

Commission Decision No 78/516/EEC of 26 May 1978, Rai/Unitel, LawLex200500004034JBJ.  

Case C-67/96 Albany [1999] ECR I-5751, LawLex200400003593JBJ.

Case C-115/97 through C-117/97 Brentjens' [1999] ECR I-6025 LawLex200400003594JBJ.

Case C-437/09 AG2R Prévoyance [2011] ECR p. I-973, LawLex201200000146JBJ, holding that a provident society which is non-profit-making and acting on the basis of the principle of solidarity, is an undertaking engaged in an economic activity insofar as it is was chosen by the social partners, on the basis of financial and economic considerations, from among other undertakings with which it is in competition on the market in the provident services which it offers.

Case C-128/21 Lietuvos notarų rūmai v. Lietuvos Respublikos konkurencijos taryba, Lietuvos Respublikos teisingumo ministerija and Lietuvos Respublikos finansų ministerija, Judgment of 18 January 2024, LawLex202400000450JBJ, which held that notarial activities, which consist in approving mortgage transactions, affixing enforceable clauses, drawing up notarial deeds, drafting transactions, consulting, providing technical services and validating exchange contracts, in certain situations, do not appear to be connected with the exercise of prerogatives of public authority.

See for agreements within a group, Case C-73/95 P Viho v Commission [1996] ECR I-5457 LawLex200500005135JBJ.

A group of companies is an undertaking, See Case 107/83 Ordre des avocats au barreau des Paris v Klopp [1984] ECR 2971, LawLex200900001465JBJ; a group formed by a parent company and operational subsidiaries that form an economic unit is a single undertaking whose behavior will be attributable to the parent: Commission Decision No 2005/566/EC of 9 December 2004, Choline Chloride, LawLex200700001304JBJ.

See Case 40/73 Suiker Unie and others v Commission [1975] ECR 1663, LawLex200400002777JBJ; thus, relations between railway companies and travel agents fall within the scope of application of Article 101 TFEU, Commission Decision No 92/568/EEC of 25 November 1992, Distribution of railway tickets by travel agents, LawLex200400003674JBJ; also, Case 311/85 VVR v Sociale Dienst van de Plaatselijke en Gewestelijke Overheidsdiensten [1987] ECR 3801, LawLex200500003944JBJ; excluding the mere commercial representative - who forms an economic unit with his principal - the status being characterized by the lack of financial and commercial risk, Cases 56/64 and 58/64 Consten v Commission EEC [1966] ECR 556, LawLex200400002598JBJ; Commission Decision No 88/84/EEC of 22 December 1987, ARG/Unipart, LawLex200400003527JBJ: including when the agent is a legal person.

See Commission Decision No 73/109/EEC of 2 January 1973, European sugar industry, LawLex200400002383JBJ, intermediaries qualified as commercial representatives or commission agents are still subject to the EU competition rules where they are not bound by exclusivity and are able to behave independently; Case C-217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I-11987 LawLex200700000372JBJ: the autonomy of a service stations operator in relation to its supplier means that the distributor assumes a significant proportion of financial and commercial risks of the sale of fuel. See also Guidelines on vertical restraints No 2010/C 130/01, at pts 12-18.

See in particular Case C-266/93 Bundeskartellamt v Volkswagen and VAG Leasing [1995] ECR I-3477, LawLex200400003551JBJ: the representative of a manufacturer now operating independently in its own name a sales and after-sales service activity, is an independent agent; Commission Decision No 2002/758/EC of 10 October 2001, Mercedes-Benz, LawLex200400003553JBJ, a motor vehicle agent assuming substantial risks directly associated with this business is an undertaking within the meaning of Article 101 TFEU; however, the motor vehicle agent who does not assume the financial risk of sales and is subject to no obligation to hold stocks, forms an economic unit with the supplier and Article 101 TFEU is not applicable in their dealings, Case T-325/01 DaimlerChrysler v Commission [2005] ECR II-3319, LawLex200700000257JBJ. See also Case T-8/16 Toshiba Samsung Storage Technology Corp, Judgment of 12 July 2019, LawLex201900000929JBJ, holding that the behavior of a commercial agent working exclusively on behalf of an undertaking without assuming the economic risk linked to the sale of his products, can be attributed to the latter.

Case T-172/21 Valve Corporation, Judgment of 27 September 2023, LawLex202300011952JBJ.

Commission Decision No 76/29/EEC of 2 December 1975, AOIP/Beyrard, LawLex200400002391JBJ. 

See in particular Case 71-74 Nederlandse Vereniging voor fruit en groentenimporthandel, Judgment of 15 May 1975, LawLex200400002778JBJ; Commission Decision No 94-815 of 30 November 1994, Ciment, LawLex200400003657JBJ.

E.g., Case T-193-02 Piau, Judgment of 26 January 2005, LawLex200500006260JBJ, concerning the activity of soccer players' agents; Commission Decision No 2001-478 of 19 April 2001, UEFA Broadcasting Regulations, LawLex200400002641JBJ, for national soccer associations; No 2003-778 of 27 July 2003, Joint selling of commercial rights to the UEFA Champions League, LawLex200500004523JBJ, for soccer clubs. Case C-333/21 European Superleague Company SL v. Fédération internationale de soccer, Union des associations de soccer, Judgment of 21 December 2023, LawLex202400004511JBJ: the rules governing the exercise of prior authorization powers by a sports association for sporting competitions, the organization and marketing of which constitute an economic activity for undertakings engaged in or planning to engage in them, fall within the scope of competition law provisions. In particular, FIFA and UEFA engage in the dual economic activity of organizing and marketing interclub soccer competitions on EU territory, as well as exploiting the various rights associated with these competitions, so that they must be classified as undertakings in this respect;  Case C-124/21 P International Skating Union, Judgment of 21 December 2023, LawLex202400004583JBJ: with the exception of regulations concerning the exclusion of foreign players from the composition of teams taking part in competitions between teams representing their country, or fixing the ranking criteria used to select athletes taking part in competitions on an individual basis, rules issued by sports associations are covered by EU competition law provisions where the conditions for their application are met, so that such associations can be classified as undertakings within the meaning of Articles 101 and 102 TFEU, or the rules in question can be classified as decisions by an association of undertakings within the meaning of Article 101.

Case T-59/22 Conserve Italia - Consorzio Italiano fra cooperative agricole Soc. coop. agr. et Conserves France, Judgment of 4 September 2024, not available in English, which holds that even if a mutual vegetable canning company may be considered an association of undertakings within the meaning of Article 101 TFEU, insofar as its members are undertakings or associations of undertakings, this fact has no bearing on its classification as an undertaking which carried out an economic activity on the market where the infringement was committed. See also, for an agricultural cooperative, Commission Decision No 2003-600 of 2 April 2003, Viandes bovines françaises, LawLex200500004520JBJ.

See Commission Decision No 93/438/EC of 30 June 1993, CNSD, LawLex200400002489JBJ, concerning customs agents; No 95/188/EC of 30 January 1995, Coapi, LawLex200400002503JBJ, for intellectual property advice services; Case C-309/99 Wouters and others [2002] ECR I-1577, LawLex200400003517JBJ, for lawyers.; see also for an association of pharmacists: Case T-90/11 ONP, Judgment of 10 December 2014, LawLex201500000888JBJ.

Commission Decision No 85/206/EEC of 12 December 1984, Aluminium imports from eastern Europe, LawLex200500004013JBJ; Case 118/85 Commission v Italy [1987] ECR 2599, LawLex200500003945JBJ; Commission Decision No 2002/180/EC of 5 December 2001, De Post - La Poste, LawLex200400003031JBJ; Case C-82/01 P Aéroports de Paris v Commission [2002] ECR I-9297, LawLex200400003034JBJ.

21. Concept of "undertaking"