Description

The traditional and prevailing view is that employees do not constitute “undertakings” and their collective/bilateral activities fall outside the reach of EU competition law’s Art 101 TFEU which prohibits anti-competitive arrangements among “undertakings”. This paper challenges the soundness of the traditional view and argues that some professionals in employment should be classifiable as “undertakings” and offers specific guidance on identifying such employees.

The traditional view, it will be argued, creates inconsistent immunities from the prohibition in Art 101TFEU and, also, perpetuates uncertainty about the applicability of Art 101TFEU to the activities of professional associations whose membership includes employees.

This paper argues that some professionals in employment are classifiable as “undertakings” on the grounds that they are “false employees”. The potential breadth of this category of employees is then sketched by drawing on research on human ownership of capital which challenges the traditional characterisation of employees as dependent labour under the care of their employers. On this basis, a wide range of professionals in employment, extending beyond the traditionally defined liberal professions, are potentially classifiable as “undertakings” and, consequently, their associations as “associations of undertakings” within the reach of Art 101TFEU.

Adopting this approach would secure the applicability of Art 101TFEU to anti-competitive decisions of professional associations whose membership includes employees (eg boycotts by association of non-consultant doctors employed by hospitals).

About The Speaker

Dr Mary Catherine Lucey BCL, LLM,BL is Associate Dean (Undergraduate Programmes) in the UCD Sutherland School of Law, Ireland where she teaches EU competition law. She has taught EU competition law in Fordham University, New York and, also, to judges from various EU states. She is a Non-Governmental Advisor to the Irish Competition and Consumer Protection Commission.

Her PhD thesis, awarded by the London School of Economics and Political Science, examined the interface between EU competition law and the common law Restraint of Trade Doctrine. Her research has been published in international peer reviewed journals including Legal Studies.