Case C-205/03 P: Appeal brought on 14 May 2003 by Federación Española de Empresas de Tecnología Sanitaria (FENIN) against the judgment delivered on 4 March 2003 by the First Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-319/99 between Federación Nacional de Empresas de Instrumentación Científica, Médica, Técnica y Dental (FENIN) and Commission of the European Communities
Date: 2003-08-02
Institutions: Court of Justice
Subjects: European Commission, Spain, action for annulment (EU), producer organisation, provision of services, social security

2.8.2003

EN

Official Journal of the European Union

C 184/19

Appeal brought on 14 May 2003 by Federación Española
de Empresas de Tecnología Sanitaria (FENIN) against the
judgment delivered on 4 March 2003 by the First Chamber,
Extended Composition, of the Court of First Instance of
the European Communities in Case T-319/99 between
Federación Nacional de Empresas de Instrumentación Cien-
tífica, Médica, Técnica y Dental (FENIN) and Commission
of the European Communities

(Case C-205/03 P)

(2003/C 184/34)

the European Communities

An appeal against the judgment delivered on 4 March 2003 by
the First Chamber, Extended Composition, of the Court of First
in Case T-319/99
Instance of
between Federación Nacional de Empresas de Instrumentación
Científica, Médica, Técnica y Dental (FENIN) and Commission
of the European Communities was brought before the Court of
Justice of
the European Communities on 14 May 2003 by
Federación Española de Empresas de Tecnología Sanitaria
(FENIN, formerly Federación Nacional de Empresas de Instru-
mentación Científica, Médica, Técnica y Dental), represented by
Ramón García-Gallardo and Mª Dolores Domínguez Pérez.

The appellant claims that the Court should:

1.

declare the appeal admissible;

2.

Instance of

set aside the judgment delivered on 4 March 2003 by the
the Court of
First Chamber, Extended Composition, of
in Case
First
T-319/99 between Federación Nacional de Empresas de
Instrumentación Científica, Médica, Técnica y Dental
(FENIN) and Commission of the European Communities
(not yet published);

the European Communities

3.

order the Commission of the European Communities to
pay the entire costs of the proceedings before the Court
of Justice and those incurred at first instance.

Pleas in law and main arguments

The appellant relies on a single ground of appeal alleging
erroneous interpretation by the Court of First Instance of the
definition of ‘undertaking’ within the meaning of Community
provisions on competition,
in particular Article 82 EC and
Article 86 EC. According to the Court of First Instance, the
organisations which run the Spanish national health system
(SNS) are not acting as undertakings when they purchase
medical goods or services from suppliers, so that the prohibi-
tions laid down in Articles 81 EC(1) and 82 EC do not apply
to them. The appellant therefore takes the view that the Court
of First Instance erred in law with regard to the application of
Articles 82 EC and 86 EC.

The ground of appeal relied upon by the appellant is divided
into two parts:

— Error of law inasmuch as it did not consider the activity
of purchasing to be an economic activity which may be
dissociated from the subsequent supply and that it must
therefore be subject to competition rules under the Treaty.
According to the Court of First Instance, the activity of
purchasing health products or services may not be disso-
ciated from the subsequent use to which the organisations
managing the SNS put such products or services. The
appellant
the
takes the view, on the other hand,
activity of purchasing is economic by nature and alto-
gether dissociable and that the reasoning of the Court of
First Instance does not take account of the case-law of the
Court of Justice, which has lately settled in which cases or
circumstances competition rules apply in a sector as new
as the health sector. The recent case-law of the Court of
Justice has not changed existing doctrine;
it has merely
had the chance to extend the scope not analysed hitherto
in which new public bodies in the health sector must be
deemed to be ‘undertakings’.

that

— Error of law inasmuch as it failed to consider that, in the
event that the activity of purchasing is not an activity
which may be dissociated form the subsequent supply, the
activity of purchasing is economic in that the subsequent
activity (provision of health services)
is such an activity
and is therefore subject to competition rules. The Court
of First Instance considers that the subsequent supply is
not an economic activity since it
is governed by the
principle of
solidarity both when obtaining funding,
through social contributions and other State contribu-
free of
services
tions, and when providing universal
charge to its members. The appellant argues,
in the
alternative, that should the Court of
Justice not accept
the first part of the ground of appeal, that in that case
the fact
supply is an economic
activity makes the activity of purchasing an economic
activity,
the
too. By failing to acknowledge as much,
Court of First Instance has infringed Community law.

the subsequent

that

regrets

the Court of First

the absence in the grounds of

the
The appellant
judgment of
Instance of any case-law
relating to activities in the same economic sector, more so
when it has laid down for the first time a principle which the
case-law has not so far dealt with (the activity of purchasing as
such is not an economic activity, so that the nature of the
purchase must be determined according to the use to which
the goods or services thus purchased). Moreover,
are put
according to the appellant, the interpretation by the Court of
Instance casts doubt on the interpretation in various
First
Member States
(Spain, United Kingdom and Germany) of
Articles 81 EC and 82 EC, confirming that public bodies
(including health organisations and bodies) of whatever legal
nature which operate in them are to be deemed ‘undertakings’
in relation to their suppliers, and are subject to Community
competition legislation.