ABSTRACT
The definition of an undertaking in Art 81 is very similar to that under Art 82, that being any legal or natural person involved in a commercial enterprise. In the context of Art 81 the ‘economic entity’ doctrine is of importance. If legally separate bodies are linked, through ownership or management agreements, any form of ‘agreement’ between them will not be considered under Art 81 as the separate bodies will be deemed to be within the same undertaking.24 The Court’s jurisprudence on groups of companies is illustrated by Viho Europe v Commission.25 Viho had challenged the restrictions imposed by Parker Pen on its national distributors which prohibited the distributors from supplying customers outside their respective national territories. The Court confirmed that the arrangements between Parker and its national distributors, which were also its subsidiaries, fell outside Art 81(1). The reason for this finding was that Parker owned 100% of the shares in the subsidiary companies and their sales and marketing activities were directed by an area management team appointed by the parent company. It would appear that both ownership and management are important when deciding if intra-group agreements are caught by Art 81. This use of the economic entity doctrine has been criticised as it encourages undertakings to vertically integrate their distribution systems to avoid the prohibition. If an undertaking owns or manages its own distributors it can impose whatever restrictions it considers necessary without the threat of sanction under Art 81.
