FENIN v Commission

An organisation which purchases goods not to offer them on a market but to use them in providing a non economic social service, such as a national health service, is not acting as an undertaking.

Citation
Case C-205/03 P, [2006] ECR I-6295
Court
Court of Justice of the European Union
Year
2006
Subject
Competition Law
Topic
Undertakings, agreements and concerted practices

Facts

FENIN, an association of undertakings which marketed medical goods and equipment in Spain, complained to the European Commission that the bodies which ran the Spanish national health system were abusing their dominant position as purchasers by delaying payment of their debts. The Commission rejected the complaint, on the ground that the health bodies were not acting as undertakings when they purchased the goods. The General Court upheld the decision.

Legal principle

The Court of Justice dismissed FENIN's appeal. The court said that it is the activity consisting in offering goods and services on a given market that is the characteristic feature of an economic activity, and that the purchase of goods cannot be dissociated from the subsequent use to which they are put. The health bodies purchased medical goods in order to provide health services free of charge to members, on the basis of the principle of solidarity, which was not an economic activity. Their purchasing activity was therefore not an economic activity, and they were not acting as undertakings.

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