This chapter will discuss how the Court decides whether the competition rules are applicable. That is: under which circumstances the competition rules apply in spite of involvement of public authorities and/or claims that restrictions of competition are in the public interest and in which cases public interest considerations prevail.
First the concepts of ‘undertaking’, ‘economic activity’, ‘public authority’ and ‘activities with an exclusively social function’ are explored. This charts the main standards applied to decide whether activities are in principle subject to the competition rules.
Next, a number of cases are discussed in which undertakings are involved, and which are therefore subject to the competition rules, and where restrictive agreements were found to be present, and no specific public interest exception existed but where the Court nevertheless concluded that Article 81 EC did not apply. The objective is to identify according to which criteria the court decides such cases, and to establish whether those criteria have general validity beyond the particular case at hand.
The concept of ‘undertaking’ under the competition rules
In principle, the competition rules of Articles 81 and 82 EC apply exclusively to undertakings. The place of these Articles in the structure of the Treaty already indicates this: Articles 81 and 82 EC are found under Title VI (common rules on competition, taxation and approximation of laws), Chapter 1 (rules on competition) section 1, headed: ‘rules applying to undertakings’. Moreover, they are explicitly drafted to address undertakings.