However, in many competitors cases, group companies have been considered a part of the same undertaking. The assessment will turn on the facts of every case, and the first test instances underneath the GDPR will need to be scrutinised fastidiously to grasp the interpretation of ‘undertaking’. Recital one hundred fifty of the GDPR states that ‘undertaking’ must be understood in accordance with Articles a hundred and one and 102 of the Treaty on the Functioning of the European Union, which prohibit anti-competitive agreements between undertakings and abuse of a dominant position. Unhelpfully, the Treaty doesn’t outline ‘undertaking’ and the extensive case-law isn’t completely straightforward, with selections often turning on the specific facts of each case. Again, it stays to be seen whether or not there will be a direct read-across of this precept into GDPR enforcement. Under EU competitors legislation case-law, there is additionally precedent for regulators to impose joint and several legal responsibility on parent companies for fines imposed on those subsidiaries in some circumstances , so-called “look by way of” liability.
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