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Aman Deep Sharan BA0170006

The document discusses the interpretation of an "undertaking" according to the Hofner principle. The Hofner principle states that an activity is considered economic in nature if it could potentially be carried out by a private entity. Whether an entity is an undertaking depends on the activity it is engaged in, not permanent characteristics. An entity may be an undertaking for one activity but not for another. The court took an abstract approach, considering factual and observable circumstances to determine if an activity is economic or commercial in nature based on if it could offer goods or services on the market. To be subject to antitrust laws, an enterprise must be engaged in economic or commercial activities as defined by considering if a private entity could potentially perform the

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66 views

Aman Deep Sharan BA0170006

The document discusses the interpretation of an "undertaking" according to the Hofner principle. The Hofner principle states that an activity is considered economic in nature if it could potentially be carried out by a private entity. Whether an entity is an undertaking depends on the activity it is engaged in, not permanent characteristics. An entity may be an undertaking for one activity but not for another. The court took an abstract approach, considering factual and observable circumstances to determine if an activity is economic or commercial in nature based on if it could offer goods or services on the market. To be subject to antitrust laws, an enterprise must be engaged in economic or commercial activities as defined by considering if a private entity could potentially perform the

Uploaded by

Aman D Sharan
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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AMAN DEEP SHARAN

BA0170006

Broad Interpretation of Hofner’s followed that the principle that activities are considered to
be of an economic nature if they could to be of an economic nature if they could be carried
out of private undertakings.

In the sense that, whether an entity is going to be coined as an undertaking is to be judged by


the activity in which it is engaged, not by any permanent characteristics in its make-up.
Consequently, an entity may be an undertaking when it engages in one activity and yet fall
beyond the scope when it carries out a different function.

Use of word engaged highlighted that meaning of undertaking should be viewed as a


contextual rather than absolute. The court wished to take into account a relatively abstract
approach and wished to take into account the factual and observable circumstances.

Yes, the statement is right as an enterprise comes within the ambit on antitrust laws only if it
is engaged is some economic or commercial activities. According to the Hofner, an activity is
qualified as economic if they can potentially be carried out by the private undertaking. To
determine the difference between economic and commercial is based on if the nature of the
activity is such as offering of goods or services on the market. In Diego Calì, it was observed
that an economic activity is referred to as activities “of an industrial or commercial nature by
offering goods or services on the market.

The commercial latitude can only be determined by the nature of the activity. To determine
the economic nature of activity, it is necessary to access that if such activity can potentially
be carried out by private undertakings whereas to determine the commercial nature of activity
the question to be assessed is whether or not the service can be offered on a market by private
undertaking. If an entity can perform economic activities themselves, and, in that capacity,
are able to make their own commercial decisions, then it performs both commercial and
economic activity.

The determination of economic and commercial activity depends upon if the activity is be
undertaken by the government for public good and interest, how is the activity financed and
commercial latitude of such activity. Any activity performed by government entity can be
economic and commercial activity if it is not in discharged of sovereign functions. Any
activity which is performed on the basis of a statutory obligation and in exercise of public
powers is not considered as economic activity. Hence not within the ambit of antitrust laws.
Therefore, to determine the undertaking under the ambit of antitrust laws the nature of
activity in itself is to be assessed.

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