CELEX: C2003/184/34
Language: en
Date: 2003-08-02 00:00:00
Title: 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

2.8.2003              EN                          Official Journal of the European Union                                          C 184/19
Appeal brought on 14 May 2003 by Federación Española                      The ground of appeal relied upon by the appellant is divided
de Empresas de Tecnología Sanitaria (FENIN) against the                   into two parts:
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                   —     Error of law inasmuch as it did not consider the activity
                 of the European Communities                                    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.
                        (Case C-205/03 P)                                       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
                         (2003/C 184/34)                                        managing the SNS put such products or services. The
                                                                                appellant takes the view, on the other hand, that the
                                                                                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
An appeal against the judgment delivered on 4 March 2003 by
                                                                                Court of Justice, which has lately settled in which cases or
the First Chamber, Extended Composition, of the Court of First
                                                                                circumstances competition rules apply in a sector as new
Instance of the European Communities in Case T-319/99
                                                                                as the health sector. The recent case-law of the Court of
between Federación Nacional de Empresas de Instrumentación
                                                                                Justice has not changed existing doctrine; it has merely
Científica, Médica, Técnica y Dental (FENIN) and Commission
                                                                                had the chance to extend the scope not analysed hitherto
of the European Communities was brought before the Court of
                                                                                in which new public bodies in the health sector must be
Justice of the European Communities on 14 May 2003 by
                                                                                deemed to be ‘undertakings’.
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.
                                                                          —     Error of law inasmuch as it failed to consider that, in the
                                                                                event that the activity of purchasing is not an activity
The appellant claims that the Court should:                                     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
1.    declare the appeal admissible;                                            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
2.    set aside the judgment delivered on 4 March 2003 by the                   principle of solidarity both when obtaining funding,
      First Chamber, Extended Composition, of the Court of                      through social contributions and other State contribu-
      First Instance of the European Communities in Case                        tions, and when providing universal services free of
      T-319/99 between Federación Nacional de Empresas de                       charge to its members. The appellant argues, in the
      Instrumentación Científica, Médica, Técnica y Dental                      alternative, that should the Court of Justice not accept
      (FENIN) and Commission of the European Communities                        the first part of the ground of appeal, that in that case
      (not yet published);                                                      the fact that the subsequent supply is an economic
                                                                                activity makes the activity of purchasing an economic
                                                                                activity, too. By failing to acknowledge as much, the
3.    order the Commission of the European Communities to                       Court of First Instance has infringed Community law.
      pay the entire costs of the proceedings before the Court
      of Justice and those incurred at first instance.
                                                                          The appellant regrets the absence in the grounds of the
                                                                          judgment of the Court of First Instance of any case-law
                                                                          relating to activities in the same economic sector, more so
Pleas in law and main arguments                                           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
The appellant relies on a single ground of appeal alleging                purchase must be determined according to the use to which
erroneous interpretation by the Court of First Instance of the            are put the goods or services thus purchased). Moreover,
definition of ‘undertaking’ within the meaning of Community               according to the appellant, the interpretation by the Court of
provisions on competition, in particular Article 82 EC and                First Instance casts doubt on the interpretation in various
Article 86 EC. According to the Court of First Instance, the              Member States (Spain, United Kingdom and Germany) of
organisations which run the Spanish national health system                Articles 81 EC and 82 EC, confirming that public bodies
(SNS) are not acting as undertakings when they purchase                   (including health organisations and bodies) of whatever legal
medical goods or services from suppliers, so that the prohibi-            nature which operate in them are to be deemed ‘undertakings’
tions laid down in Articles 81 EC(1) and 82 EC do not apply               in relation to their suppliers, and are subject to Community
to them. The appellant therefore takes the view that the Court            competition legislation.
of First Instance erred in law with regard to the application of
Articles 82 EC and 86 EC.