Keywords

Summary



Keywords

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)

3. Competition — Administrative procedure — Examination of complaints — Examination 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)

Summary

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 services 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 according 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 monopsony, 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 undertaking 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 activity 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 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 principle 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 complaint on the ground that the practices complained of do not infringe Community 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 context of the decision.

see para. 58