A. headline

The Court of First Instance rightly held, in paragraph 35 of the judgment under appeal, that in Community competition law the definition of an ‘undertaking’ covers any entity engaged in an economic activity, regardless of the legal status of that entity and the way in which it is financed (Case C-41/90 Höfnerand Elser [1991] ECR I-1979, paragraph 21, and Joined Cases C-264/01, C-306/01, C‑354/01 and C‑355/01 AOK-Bundesverband and Others [2004] ECR I-2493, paragraph 46). In accordance with the case-law of the Court of Justice, the Court of First Instance also stated, in paragraph 36 of the judgment under appeal, that it is the activity consisting in offering goods and services on a given market that is the characteristic feature of an economic activity (Case C‑35/96 Commission v Italy [1998] ECR I-3851, paragraph 36).

The Court of First Instance rightly deduced, in paragraph 36 of the judgment under appeal, that there is no need to dissociate the activity of purchasing goods from the subsequent use to which they are put in order to determine the nature of that purchasing activity, and that the nature of the purchasing activity must be determined according to whether or not the subsequent use of the purchased goods amounts to an economic activity.

It follows that the first part of the single plea raised by FENIN in support of its appeal, that the purchasing activity of the SNS management bodies constitutes an economic activity in itself, dissociable from the service subsequently provided and which, as such, should have been examined separately by the Court of First Instance, must be dismissed as unfounded.

Having regard to the foregoing considerations, the appeal must be dismissed as partly inadmissible and partly unfounded.

outgoing links

• oncomment:1991\
• oncomment:1998\
• oncomment:2004\