Single Economic Entity in UK Law

I have some doubts whether in this respect the Court of Appeal properly applied the principle that it is appropriate to pierce the corporate veil only where special circumstances exist indicating that is a mere facade concealing the true facts. Woolfson cannot be treated as beneficially entitled to the whole share-holding in Campbell, since it is not found that the one share in Campbell held by his wife is held as his nominee.

There are no cases or even textbook opinions to provide me with a ready answer. Moreover there is a tension between English law and EU Competition law concepts. In English law the separate identity of corporations is respected and knowledge of one corporation will not be readily imputed to another. It can embrace a number of legal entities, so long as they act as a single economic unit and no legal entity acts independently for any relevant purpose.

It seems to me to be arguable that where two corporate entities are part of an "udertaking" (call it "Undertaking A") and one of those entities has entered into an infringing agreement with other, independent, "undertakings", then if another corporate entity which is part of Undertaking A then implements that infringing agreement, it is also infringing Article 81.

The jurisprudence on this aspect is, in my view, plain and settled. Article 101 is concerned with agreements, decisions and concerted practices by and between undertakings. An undertaking for this purpose is any entity engaged in economic activity, regardless of its legal status and the way in which it is financed. Furthermore, in this context the concept of an undertaking includes an economic unit which may consist of more than one legal or natural person, such as a group of companies.

By contrast, the mere fact that the share capital of two commercial companies is held by the same person or the same family is insufficient in itself to establish that those two companies are an economic unit with the result that, for the purposes of Article 101, the actions of one company can be attributed to the other.

The Dow Defendants also relied upon Article 5(3) of the Judgments Regulation to establish jurisdiction. In view of my decision on Article 6(1) it is strictly unnecessary to lengthen this judgment yet further with a discussion of all the arguments. I will simply express my conclusions as shortly as possible. However, it is also common ground that if jurisdiction is established on that basis it is only established in respect of the damage which occurred in England.

Adopting what was said by the European Court of Justice in Süzen, I consider that the mere fact that the service provided by ADI and Firm Security Group was similar does not support the conclusion that an economic entity was transferred. An entity cannot be reduced to the activity entrusted to it and the mere loss of a service contract to a competitor cannot by itself indicate the existence of a transfer within the meaning of the Directive.