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The Curacao rules on competition apply to undertakings and associations of undertakings. It is, therefore, important to know the definition of undertaking. The term undertaking is copied from the European rules on competition and is to be interpreted in the same way.
The concept of an undertaking encompasses every entity engaged in an economic activity, regardless of its legal status or the way in which it is financed. The nature of the activities carried out by an entity is the key element. The legal personality of the entity is irrelevant, meaning that natural persons, legal persons, non-profit organizations and even public entities are potentially caught under the definition of undertaking. The critical question is, therefore, what constitutes an economic activity?
An economic activity is, in general, the offering of goods or services on the market, while a private entity should, at least in principle, be able to perform the activity concerned. Activities that are typically those of a public authority – for example exercising powers relating to the control and supervision of air space – do not constitute an economic activity. Furthermore, entities that fulfil exclusively social functions and perform activities solely based on the principle of national solidarity – for example sickness funds and organizations involved in the management of the public social security system – are not undertakings. Hence, entities acting purely in the public interest are, in general, not undertakings. However, if the activities are also based upon the so-called principle of capitalization, those activities are of an economic nature as well. In that event the rules on competition apply.
Natural persons, who work for and under the direction of an entity, are part of that entity and cannot fulfil the criteria of being an undertaking. However, natural persons that provide services or goods on behalf of an entity but on an independent basis (intermediaries) – for example travel agents acting on behalf on airlines – are undertakings in this context. Their activities are of an economic nature.
Terms used in the Curacao rules on competition, such as the terms undertakings and economic activities, have been widely interpreted by the Court of Justice of the European Union. Peter van Dort has in-depth knowledge thereof. Peter has also developed a so-called ‘Competition Scan’ for the business sector, indicating an entity’s legal position within the relevant market.
You may also be interested in Peter’s blog about ‘New rules on competition’ and ‘Dominant Position’.
If you have questions about our Competition Scan and/or want to know how the Curacao rules on competition can affect your business, please feel free to contact Peter van Dort via peter@legallaw.blog or dort@liance.law or +5999 5133 678.
