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.
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.
Related cases on undertakings, agreements and concerted practices
- A Ahlström Osakeyhtiö v Commission (Woodpulp II) Joined Cases C-89/85 and others, [1993] ECR I-1307
- Akzo Nobel NV v Commission Case C-97/08 P, [2009] ECR I-8237
- Anic Partecipazioni SpA v Commission Case C-49/92 P, [1999] ECR I-4125
- Argos Ltd v Office of Fair Trading; JJB Sports plc v Office of Fair Trading [2006] EWCA Civ 1318
- Bundesverband der Arzneimittel-Importeure eV v Bayer AG (Adalat) Joined Cases C-2/01 P and C-3/01 P, [2004] ECR I-23
- Coöperatieve Vereniging Suiker Unie UA v Commission Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73, [1975] ECR 1663
- Eturas UAB v Lietuvos Respublikos konkurencijos taryba Case C-74/14, EU:C:2016:42
- Höfner and Elser v Macrotron GmbH Case C-41/90, [1991] ECR I-1979
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