There are two different notions of “undertaking” in competition law, argues our former Visiting Research Fellow Eva Fischer: One is the undertaking in the sense of Articles 101 and 102 TFEU, which is also the addressee of competition law sanctions. The other one, according to Groupe Gascogne (C-58/12 P), is used to determine the upper limit for fines based on Article 23(2) of Regulation 1/2003. In its recent judgment Deutsche Wohnen (C-807/21), the CJEU wrongly assumed that the concept of the economic entity, as derived from Articles 101 and 102 TFEU, should be applied to determine the fine under Article 83 GDPR. This calls for a clarification: The concept of the economic entity as it was developed in the aftermath of Sumal (C-882/19) should be limited to determining the addressee of the obligations imposed by Articles 101 and 102 TFEU. Applying the economic entity doctrine to determine a price cap under the GDPR or competition law severely limits the preventive effect of fines. Eva Fischer just published her findings, for which she conducted research during her stay at The Competition Law Hub and which she discussed in our Jour fixe in January 2024, in the German Zeitschrift für die gesamte Privatrechtswissenschaft (ZfPW 2024, pages 306-322).
