CHINESE STATE-OWNED ENTERPRISES AND THE CONCEPT OF UNDERTAKING UNDER EU COMPETITION LAW

Sa？etak Chinese State-owned enterprises (SOEs) test the ability of the existing EU legal framework for the protection of economic competition to regulate entities originating from the systemically different socialist market economy of today’s China. The question left unanswered so far is whether or not is the EU competition law sufficiently neutral and flexible to be universally applicable and able to encompass corporate structures guided and managed differently from its underlying assumptions. Thus, one of the main theses of the following analysis is that the key concepts of the undertaking and of the single economic unit under EU competition law do not correspond to the reality of Chinese SOEs. They cause difficulties of interpretation and, in particular, of application on Chinese SOEs and even could weaken the EU competition law ability to protect competition by standard procedures. To solve that puzzle for the EU competition law, the following text proposes that the Commission and the CJEU should opt for a different interpretation of the concept of undertaking / single economic unit for the purposes of SOEs ex-ante merger scrutiny on one hand, and their internal practices′ ex-post investigation and sanctions on the other