KNOWING WHEN TO SEE IT: STATE ACTIVITIES, ECONOMIC ACTIVITIES, AND THE CONCEPT OF UNDERTAKING

The concept of “undertaking” acts as a gatekeeper to the application of the substantive competition laws of the European Union, namely Articles 101 and 102 T.F.E.U. A functional approach to the concept, rooted in the notion of economic activity, has been adopted. Insofar as State activities fall within the concept of economic activity, a notion has developed in European case law that the substantive provisions of the Treaty on the Functioning of the European Union apply to those actions. This Article explores this functional approach as applied to State activity, with a particular focus on the exceptions for activities implicating social solidarity and public powers, and on recent developments in case law informing how the approach is interpreted. Significant uncertainties within the existing notions of the functional approach are identified and the Article concludes with two recommendations for improvement: adoption of an overarching principle of deference to State action to be applied in borderline cases and development of a framework of presumptions to guide national courts in applying European Union competition law under the delegated enforcement structure of Regulation 1/2003.