Revisiting the Concept of Undertaking from a Public Procurement Law Perspective – A Discussion on EasyPay and Finance Engineering

13 Pages Posted: 27 Nov 2015

See all articles by Albert Sanchez-Graells

Albert Sanchez-Graells

University of Bristol - School of Law

Ignacio Herrera Anchustegui

University of Bergen, Faculty of Law

Date Written: November 26, 2015

Abstract

In EasyPay and Finance Engineering (C-185/14), the Court of Justice of the European Union (CJEU) has revisited the concept of undertaking for the purposes of the application of EU competition law. It has clarified the test applicable to economic agents engaging in ‘mixed’ economic and non-economic activities. The EasyPay test determines that, in order not to be qualified as “economic” because of its links with another activity that fulfils an exclusively social function based on the principle of solidarity and entirely non-profit making, an activity must, by its nature, its aims and the rules to which it is subject, be inseparably connected to it. In the paper, we discuss how the CJEU has arguably given a stricter interpretation and adopted a less lenient approach to the severability or separation of activities than in previous cases like FENIN, Selex or Compass-Datenbank. In our view, this interpretation is anchored on a functional analysis of the concept of undertaking, and it is a welcome development that will have far reaching implications.

Beyond that general discussion, the paper focuses on the potential implications of the EasyPay test in the area of public procurement and, in particular, for the activities of central purchasing bodies. We submit that EasyPay facilitates a revision of the current position regarding the direct applicability of EU competition law to entities carrying out public procurement activities and, in particular, central purchasing bodies. We also submit that this is highly desirable because it grants legal certainty to economic operators when dealing with a central purchasing body, to the effect that the purchasing activities will be under competition law and the derived constrains on the market behaviour of large public buyers that may abuse of their buyer power.

Keywords: public procurement, competition, undertaking, central purchasing bodies, economic activity, EasyPay, FENIN, Selex, Compass-Datenbank

JEL Classification: H57, K21, K23, K42

Suggested Citation

Sanchez-Graells, Albert and Herrera Anchustegui, Ignacio, Revisiting the Concept of Undertaking from a Public Procurement Law Perspective – A Discussion on EasyPay and Finance Engineering (November 26, 2015). Available at SSRN: https://ssrn.com/abstract=2695742 or http://dx.doi.org/10.2139/ssrn.2695742

Albert Sanchez-Graells (Contact Author)

University of Bristol - School of Law ( email )

Wills Memorial Building
Queen's Road Clifton
Bristol, BS8 1RJ
United Kingdom

HOME PAGE: http://www.howtocrackanut.com/

Ignacio Herrera Anchustegui

University of Bergen, Faculty of Law ( email )

Norway

Register to save articles to
your library

Register

Paper statistics

Downloads
263
rank
113,959
Abstract Views
1,184
PlumX Metrics
!

Under construction: SSRN citations will be offline until July when we will launch a brand new and improved citations service, check here for more details.

For more information