Judgment — ECLI:EU:T:2003:50
Date: 2003-03-04
Language of the case: Spanish
Court formation: First Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Dominant position
Concepts: Statement of reasons;Bringing matters before the Commission;Definition of undertaking
Procedure: Action for annulment - unfounded
Origin: Spain

Summary of the Judgment 
1. Competition — Community rules — Undertaking — Definition 
(Arts 81 EC and 82 EC) 
2. Competition — Community rules — Undertaking — Definition — Organisations 
responsible for managing national health systems — Not included — Conditions 
(Arts 81 EC and 82 EC) 
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SUMMARY — CASE T-319/99 
3. Competition — Administrative procedure — Examination of complaints — Exam­
ination only of the facts and points of law brought to the Commission's attention' 
(Arts 81 EC and 82 EC; Council Regulation No 17(3)) 
4. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision 
applying competition rules 
(Art. 253 EC) 
1. In Community competition law, the 
concept of an undertaking covers any 
entity engaged in an economic activity, 
regardless of its legal status and the 
way in which it is financed. 
In this connection, it is the activity 
consisting in offering goods and ser­
vices on a given market that is the 
characteristic feature of an economic 
activity, not the business of purchasing, 
as such. Thus, it would be incorrect, 
when determining the nature of that 
subsequent activity, to dissociate the 
activity of purchasing goods from the 
subsequent use to which they are put. 
The nature of the purchasing activity 
must therefore be determined accord­
ing to whether or not the subsequent 
use of the purchased goods amounts to 
an economic activity. 
Consequently, an organisation which 
purchases goods — even in great 
quantity — not for the purpose of 
offering goods and services as part of 
an economic activity, but in order to 
use them in the context of a different 
activity, such as one of a purely social 
nature, does not act as an undertaking 
simply because it is a purchaser in a 
given market. Whilst an entity may 
wield very considerable economic 
power, even giving rise to a monop­
sony, it nevertheless remains the case 
that, if the activity for which that entity 
purchases goods is not an economic 
activity, it is not acting as an under­
taking for the purposes of Community 
competition law and is therefore not 
subject to the prohibitions laid down in 
Articles 81(1) EC and 82 EC. 
(see paras 35-37) 
2. Organisations managing health funds 
are not carrying on an economic activ­
ity and are not, therefore, undertakings 
for the purposes of Articles 81 EC and 
82 EC, if they fulfil an exclusively 
social function, their activity is based 
on the principle of national solidarity 
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FENIN v COMMISSION 
and, lastly, they are non-profit-making, 
the benefits paid out being statutory 
benefits that bear no relation to the 
level of contributions. 
That is so in the case of organisations 
managing a national health system 
which operates according to the prin­
ciple of solidarity in that it is funded 
from social security contributions and 
other State funding and in that it 
provides services free of charge to its 
members on the basis of universal 
cover. 
Nor do such organisations act as 
undertakings when purchasing from 
other undertakings medical goods and 
equipment which they require in order 
to provide free services to members of 
the national health system. 
(see paras 38-40) 
3. Where a complaint has been submitted 
to the Commission under Article 3 of 
Regulation No 17, it is required to 
examine carefully the facts and points 
of law brought to its notice by the 
complainant in order to decide whether 
they disclose an infringement of 
Articles 81 EC and 82 EC. 
On the other hand, the Commission is 
not required, before rejecting a com­
plaint on the ground that the practices 
complained of do not infringe Com­
munity competition rules or do not fall 
within the scope of the Community 
competition rules, to examine facts 
which have not been brought to its 
notice by the complainant. 
(see paras 42-43) 
4. When stating the reasons for the 
decisions which it is led to take in 
order to enforce the competition rules, 
the Commission is not obliged to adopt 
a position on all the arguments relied 
on by the parties concerned in support 
of their request; it is sufficient if it sets 
out the facts and legal considerations 
having decisive importance in the con­
text of the decision. 
(see para. 58) 
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