Case C-205/03 P

Federación Española de Empresas de Tecnología Sanitaria (FENIN)

v

Commission of the European Communities

(Appeal – Competition – Management bodies of the Spanish national health system – Medical treatment – Definition of ‘undertaking’ – Payment conditions imposed on suppliers of medical goods and equipment)

Opinion of Advocate General Poiares Maduro delivered on 10 November 2005 

Judgment of the Court (Grand Chamber), 11 July 2006 

Summary of the Judgment

Competition – Community rules – Undertaking – Definition

(Arts 81 EC and 82 EC)

In Community competition law, the definition of an ‘undertaking’ covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed.

In that connection, it is the activity consisting in offering goods and services on a given market that is the characteristic feature of an economic activity so 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.

(see paras 25-26)

JUDGMENT OF THE COURT (Grand Chamber)

11 July 2006 (*)

(Appeal – Competition – Management bodies of the Spanish national health system – Medical treatment – Definition of ‘undertaking’ – Payment conditions imposed on suppliers of medical goods and equipment)

In Case C-205/03 P,

APPEAL under Article 56 of the Statute of the Court of Justice lodged on 13 May 2003,

Federación Española de Empresas de Tecnología Sanitaria (FENIN), formerly Federación Nacional de Empresas de Instrumentación Científica, Médica, Técnica y Dental, established in Madrid (Spain), represented by J.-R. García-Gallardo Gil-Fournier and D. Domínguez Pérez, abogados,

appellant,

the other party to the proceedings being:

Commission of the European Communities, represented by W. Wils and F. Castillo de la Torre, acting as Agents, and J. Rivas de Andrés and J. Gutiérrez Gisbert, abogados, with an address for service in Luxembourg,

defendant at first instance,

supported by:

United Kingdom of Great Britain and Northern Ireland, represented by M. Bethell, acting as Agent, and G. Barling QC, with an address for service in Luxembourg,

Kingdom of Spain, represented by N. Díaz Abad, L. Fraguas Gadea and F. Díez Moreno, acting as Agents, with an address for service in Luxembourg,

interveners in the appeal,

THE COURT (Grand Chamber),

composed of V. Skouris, President, P. Jann, C.W.A. Timmermans and A. Rosas, Presidents of Chambers, J.-P. Puissochet, R. Schintgen, N. Colneric, S. von Bahr (Rapporteur), J. Klučka, U. Lõhmus and E. Levits, Judges,

Advocate General: M. Poiares Maduro,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 13 September 2005,

after hearing the Opinion of the Advocate General at the sitting on 10 November 2005,

gives the following

Judgment

1       By its appeal, the Federación Española de Empresas de Tecnología Sanitaria (‘FENIN’) seeks to have set aside the judgment of the Court of First Instance of the European Communities of 4 March 2003 in Case T-319/99 FENIN v Commission [2003] ECR II-357 (‘the judgment under appeal’) dismissing its action for annulment of the Commission’s decision of 26 August 1999 dismissing the complaint it had lodged against 26 public bodies, including three ministries, which run the national health system (Sistema Nacional de Salud) (‘the SNS’) on the ground that those bodies (‘the SNS management bodies’) are not undertakings for the purposes of the application of Article 82 EC (‘the contested decision’).

 Factual background

2       The facts, as they appear in the judgment under appeal, may be summarised as follows.

3       FENIN is an association of the majority of the undertakings which market medical goods and equipment, particularly medical instruments, used in Spanish hospitals. The members of that association sell those goods, inter alia, to the SNS management bodies. The sales of medical goods and equipment to the SNS management bodies represent more than 80% of the turnover for the undertakings who are members of FENIN.

4       On 12 December 1997, FENIN submitted a complaint to the Commission of the European Communities alleging systematic delays in payment by the SNS management bodies, which constitute, in its view, an abuse of a dominant position within the meaning of Article 82 EC. It stated that those bodies took an average of 300 days to pay their debts to its members, even though they settled their debts to other suppliers within a far more reasonable period of time. That discrimination is attributable to the fact that the members of FENIN cannot exert any commercial pressure on those bodies because they have a dominant position in the Spanish market for medical goods and equipment.

5       By the contested decision, the Commission dismissed that complaint on the ground that, first, the SNS management bodies do not act as undertakings where they participate in the management of the public health service and, second, their capacity as purchasers cannot be dissociated from the use which is made of the medical goods and equipment following their purchase. Consequently, the Commission submits that those bodies do not act as undertakings within the meaning of Community competition law when they purchase medical goods and equipment, and that Articles 81 EC and 82 EC are not applicable to them.

 The proceedings before the Court of First Instance and the judgment under appeal

6       By application lodged at the Registry of the Court of First Instance on 10 November 1999, FENIN brought an action for annulment of the contested decision.

7       In support of its action, FENIN put forward three pleas: (i) infringement of its rights of defence by the Commission, (ii) error in law or manifest error of assessment in the application of Articles 82 EC and 86 EC, and (iii) an inadequate statement of reasons and lack of transparency in the contested decision.

8       The Court of First Instance first dismissed the second plea, relating to the application of Articles 82 EC and 86 EC, holding, in paragraph 40 of the judgment under appeal, that the SNS mana