So what constitutes a non-economic entity under EU Competition Law. Defining and ascertaining the forgoing notion has far-reaching consequences for the freedom of the State to organize the supply of public services or Services for General Economic Interest (SGEI’s) or Services of General Interest (SGI’s).
To fulfil the purpose of this article, the following research questions will be scrutinised:
I. In concise terms, which factors are necessary in establishing the notion of ‘undertaking’ under EU competition law?
II. To what extent and how can we best ascertain/differentiate whether the State provides Services for General Economic Interest (SGEI’s) or Services of General Interest (SGI) under EU competition Law?
III. Is the State involved in economic activity when pursuing public interest goals and what does it notion entail?
1. Definition of Undertaking and Economic Activity
The concept of an undertaking is integral to providing answers to whether EU competition law rules apply to the conduct of an entity and, if so, which of those rules apply. Article 101 of the Treaty on the Functioning of the European Union (TFEU) applies to the “joint conduct of two or more undertakings-agreements and concerted practices between undertakings and decisions by associations of undertakings which have as their object or effect the prevention, restriction or distortion of competition within the internal market”. [1] Despite the significance of the concept of an ‘undertaking’ to the scope of, and relationship between, the EU competition law provisions, the term is not defined in the Treaty.[2] Instead, the definition of the term is left for clarification in the case law.[3] Undertakings are the economic actors to which Articles 101 and 102 of the TFEU apply.[4]
An ‘undertaking’ encompasses any entity, (including individuals, legal persons such as companies and partnerships, state and public bodies) engaged in economic activity that offers goods and services on the given market, regardless of its legal personality or status, or the way in which it is financed.[5]
This does not mean that the definition can be used interchangeably with the notion of ‘natural or legal personality’[6] yet instead, represents ‘an economic unit for the purpose of the subject-matter of the agreement in question even if in law that economic unit consists of several persons, natural or legal’[7]. It is therefore a ‘complex concept involving human and physical components joined in the pursuit of a single economic activity’.[8] Economic activity thus entails the offering goods or services on the market (!)[9] which, in principle could be carried out by a private undertaking in order to make profits.[10] If there is no market, competition law does not apply. What are, however, the significant features of a market? The Höfner[11] definition[12] is based on circular reasoning and is therefore not helpful for identifying these features. One can state that “the main characteristic of the market lies in the provision of goods or services by companies to individual consumers. If the supply of goods and services can only be organized in a collective way, i.e. by exercising official authority or by public funding, no market exists.”[13] Advocate-General Jacobs mentioned in relation to the concept of undertaking in Cisal[14] ‘The underlying question is whether that entity is in a position to generate the effects which the competition rules seek to prevent.’ [15]
Companies in the same group are considered a single economic entity and thus an undertaking.[16]Inventors,[17] opera singers,[18] barristers,[19] sporting associations,[20] agricultural cooperatives and multinational corporations are all considered as undertakings. [21] The notion thus dictates the freedom of the State to organize the supply of public services. When can specific features justify the non-applicability of the competition rules? Services of General Interest or SGIs, which are provided in the public interest, include activities of both economic and non-economic nature.[22] Services of General Economic Interest (SGEIs) are a subgroup of this, i.e. economic SGIs which are subject to competition law rules. Member State national law determines the scope of SGI but for clarities sake a common approach render “SGI’s are essential basic services which are provided in the public interest, but which are essentially “social” in character, and are often linked to national social welfare and social protection rights and arrangements.”[23] This essay purports to propose a framework that may make it simpler in clarifying the differentiation between the SGI and SGEI and also define key features of the concepts.
2. Three Step Test
One simplified test in determining an economic entity (i.e. undertaking) from a non-economic entity is effects-based: the question is whether the entity in question, when doing a specific task, has an economic impact on the market by offering goods or services.[24] In essence this signifies that an economic entity may be treated as an undertaking when it performs certain Therefore, it would be more efficient to focus on the limits to the concept of undertaking which in this essay are confined to
1. Official authority,[25]
2. Social security schemes[26]
3. Services provided in order to pursue specific public policy goals[27]’
and fall outside European competition law as discussed below.
The following test[28] may be construed to separate an economic activity from an economic activity:
(1) the supply of the services or the goods concerned is mainly dependent on public funding;[29]
(2) the aim of the funding is to achieve a public interest goal (which is, preferably, specified in a piece of national legislation);[30]
(3) the activities at issue are closely related to this public interest goal.[31]
The Test above by no means determines factors that the CJEU may take into account when defining a SGI. For example, in FENIN[32] the CJEU held that the subsequent use of the goods and services bought by an entity determines the nature of purchasing activities. If a particular service or good is bought with a view to provide a non-economic SGI, this purchasing activity is non-economic too. As a result, it is necessary to find out why particular goods or services are purchased.[33]
Conversely, in n MOTOE[34] the CJEU elaborated on the role of competition. Here, it contended that associations that organized motorcycling events without seeking profit were still engaged in economic activities; as such entities may find themselves in competition with each other and thus can be recognized as economic entities.
I argue that it would be more efficient to focus on the limits to the concept of undertaking in the form of SGI which would also shed light on the scope if ‘undertakings’.
4. State prerogatives or official authority
The exercise of official authority or public powers or state prerogatives does not amount to an economic activity.[35] How do we even identify authority? In Diego, [36]the task concerned by the entity was regarded by the CJEU as a task that is typical for a public authority[37] and thus was not of an economic nature. A different approach was taken in TenderNed[38] where the CJEU was called upon to clarify whether services offered by an Internet platform were subject to EU competition law or associated with the exercise of official authority. The facts concerned a platform that intended to support public authorities to complete public procurement procedures electronically. According to the European public procurement directives,[39] e-procurement is compulsory and, additionally, the Dutch government supplemented some extra functionality to TenderNed. The commission pointed out that the obligation to tender contracts only rests with public authorities and pointed out that TenderNed was set up in order to comply with the EU rules for e-procurement and consequently associated with the exercise of public powers.[40] Competitive nature of the activity does therefore not exist since operators are not capable to develop a compulsory system of e-procurement. The key takeaway from TenderNed is that if a particular public interest can only be realized by applying official authority, an economic activity does not come into existence and therefore competition law does not apply, even if commercial operators supply services or goods similar to the SGI in question.[41]
Similarly, Eurocontrol [42]was delegated with the assignment to offer navigation control in air space for the improvement of aircraft travelling and allocated by the powers conferred by a the State. Thus, the activities of Eurocontrol were typical for a public authority, i.e. the exercise of official authority. The test to be carried out is that the services concerned can only be provided, if the State exercises its official authority and in other words, the State intervenes to supply public goods[43] which are unparalleled in their consumption and the usage of these goods is non-excludable.[44] In essence, when it comes to State prerogatives, the CJEU centres its judgment on an abstract test: the (legal) design of the provision of the service concerned is irrelevant; rather the question to be answered is, “without State intervention can the task concerned be performed?”[45] [46] If the answer to the forgoing question is ‘yes’, then the entity concerned falls subject to EU competition law.
5. Social security schemes
National legal framework of the service concerned is decisive for finding an economic activity that pertains to social security schemes. If such a scheme predominately is based on solidarity, the bodies managing this scheme are not regarded as undertakings.[47] For example, if the contributions due and the entitlements are fixed in national law, no room for competition exists and, as a result, the policies of the managing bodies do not need to be reviewed under Articles 101 and 102 TFEU. On the other hand, if a scheme is based on a mix of solidarity and market elements, the supervisory bodies are engaged in economic activities and must be considered undertakings for the purposes of European competition law.[48] Repeatedly, the European courts have addressed the question whether competition law applies to social security schemes. In the case DZP/UZP[49] the CJEU scrutinized whether private insurance companies of the Slovak health care system were engaged in economic activities. The private entities managed the basic health care schemes. CJEU held that that The Slovak health laws allow the insurance companies to use and distribute profits and consequently these insurance companies are profitmaking and subject to competition law. The CJEU also added that a certain amount of competition as to the quality and scope of the services exists. The combination of the ability of profit making and the existence of competitive activity entailed that Slovak health insurers are undertakings and engaged in economic activities.[50] The DZP/UZP case shows that the national legal framework is still decisive for the applicability of EU competition law in social security cases. The CJEU uses a concrete test which analyses all relevant features of the scheme under review whilst highlighting the role that State supervision plays. In any event, it is clear from the outset that in cases concerning social security schemes, the CJEU carries out a concrete test, as the national legal framework[51] of these schemes (their design) is decisive as to whether European competition applies or does not apply.[52]
6. Activities related to public interest goals
The activities concerned (of the entity or authority) are closely related to this public interest goal. As opposed to economic activities, where companies supply goods or services to individual consumers, the main feature of the ‘public policy goal activities’ is the collective way of financing. This might entail that collective financing not only organized by the State but also by charity organizations, institutions of the church[53] and non-governmental organizations, could be capable of excluding particular activities from the scope of competition law. The reason for this is that many of the activities performed by these entities cannot be offered on the market. By using the term ‘market’, the CJEU refers back to the term ‘economic’ and the latter presupposes the supply of a particular product on the market, which entails competition between various undertakings.[54]
In CEPPB,[55] and according to Spanish law, religious institutions are entitled to full exemption from a municipal tax on the use of buildings, installations or construction works. The CEPPB was refused this exemption by the municipal authorities for the school hall at ‘La Immaculada’, as this hall was also for its educational activities. The municipalities based their judgement on that granting tax facilities for the educational activities of the CEPPB would amount to illegal state aid. If a particular service (or good) can exclusively be provided by public funding, it falls outside the scope of competition law. In other words not only educational activities but also other services, such as nature conservation and cultural activities may benefit from the approach developed in this judgment. Scholars[56] are of the view that the sole existence of public funding is not sufficient for excluding supply of services and goods from competition law. It must be clear that the money of taxpayers is required and, accordingly, state intervention based on solidarity will be justified.[57] Only by means of solidarity will the SGIs concerned will be provided to a group of citizens. On the market place only individual consumers are served.[58]
Questions related to official authority and social security are somewhat settled by case law, or more so than the third limit. Are schools, universities, museums and orchestras applicable to European competition law? Should their practices be reviewed under Articles 101 and 102 TFEU? Since they receive funding from the state should these be notified to the Commission pursuant to the EU state aid rules? For example, should a private nature organisation supplying goods and services to the general public by the help of funding from the state of public nature be subject to EU competition law rules. “In such circumstances, the SGI carried out is financed by the state and, therefore, it could be argued that this service is rendered in exchange of payment. As no exercise of official authority or management of social security schemes is at issue, it may be concluded that competition law applies.”[59]
In Germany v Commission[60]the CJEU was of the view that nature conservation was wholly of a social character and did not fall within the scope of the Treaty provisions on competition. Yet, the sale of wood, leases of land and tourism were of economically competitive nature on the market and thus competition law was applicable. Nature conservation in itself is not of an economic nature but related activities, such as the sales of wood, should be considered as economic, since they can be offered on the market place.[61] The same applies to culture and heritage conservation which do not amount to economic activities as these are financed through the public or taxpayers money.[62]
7. Discussion and Conclusion
In essence, with regards to the first two limits i.e. state authority and social security scheme, two observations can be made. First, an entity may be engaged in both economic and non-economic activities.[63] In such circumstances, competition law applies in so far the entity concerned carries out economic activities. Accordingly, the entity concerned must be split in two parts: one that can be scrutinised by the competition rules and one exempt from these rules.[64] Secondly, attention must be paid to the purchasing activities. The provision of a particular SGI may not be of an economic nature, but the entity providing this SGI has to buy goods or services on the market in order to be able to perform the task assigned to it and thus competition law applies to the latter. The third limit to the concept of undertaking concerns the ‘social and cultural services’ termed as ‘activities related to public interest goals’ since the achievement of particular public aims is inherent in the activities concerned.[65] The performance of these activities concerns public goods, which benefits collectively but cannot be made subject to a single individual transaction like the activities connected with official authority;[66] just as public goods are considered to be non-economic.[67] In this regards and using this line of reasoning public authorities are entitled to pursue public interest objectives, albeit EU competition law does apply. “It is pointless to apply the EU state aid rules to the supply of goods and services, if the sole reason that these goods and services are rendered is the financial support given by the State.”[68] The effects of competition could be hampered, if they rely only on the concept of SGEI. Exceptions to this clearly do exist as in, for example Altmark,[69] competition alterations we accepted and were deemed justifiable, as they were necessary for the proper functioning of SGEIs. “Consequently, the applicability of the competition and state aid rules do not preclude Member States from having in place public interest policies.” [70]
In CEPPB, the CJEU stressed the importance of the way that the financing of an educational system is organized. Scholars[71] are of the opinion that the weight placed on the financing demonstrates the level of state involvement and hence the differentiation between an economic activity and non-economic activity. The reason for this is because of the continuous and permanent supply of some services is only guaranteed if the State intervenes and finances the provision of these services (or a part of them). For example, primary and secondary education can only be financed through government subsidies. The Commission has also expressed that particular SGIs cannot be provided on the market and are therefore not of an economic nature. The rationale here and in the cases involving official authority and state funding such as CEPPB is that without the State, the services concerned will not be supplied. Either official authority or public funding or a combination of these two is required to guarantee access to these services. To sum up, here no market exists, because ‘undertakings’ which are of economic nature are not capable of providing the services concerned to individual consumers. If this rationale is accurate, then a very important principle can be derived from the CEPPB judgment: if a particular service (or good) can exclusively be provided by public funding, it falls outside the scope of competition law. This means that not only educational activities but also other services, such as nature conservation and cultural activities may benefit from the approach developed in this judgment. Actually, the supply of some (essential) services must be organized in a collective way or in other words through state funding (or tax-payer funding). The Commission’s verdict has already been set when it stated ‘many cultural or heritage conservation activities are objectively non-substitutable (for example, keeping public archives holding unique documents) and thus exclude the existence of a genuine market’[72].
To make the very complicated and intricate concept SGI and SGEI simpler, it would help to realise that the test in determining so is effects-based: the question is whether the entity in question, when doing a specific task, has an economic impact on the market by offering goods or services.[73] In essence this signifies that an economic entity may be treated as an undertaking when it performs certain functions, but fall outside the scope of competition law when pursuing other functions. [74] Therefore, it would be more efficient to focus on the limits to the concept of undertaking which in this essay are confined to
8. Official authority,[75]
9. Social security schemes[76]
10. Services provided in order to pursue specific public policy goals[77]’
and fall outside European competition law as discussed below.
The following test[78] may be construed to separate an economic activity from an economic activity:
(4) the supply of the services or the goods concerned is mainly dependent on public funding;[79]
(5) the aim of the funding is to achieve a public interest goal (which is, preferably, specified in a piece of national legislation);[80]
(6) the activities at issue are closely related to this public interest goal.[81]
Taking into account the above reasoning to limits of ‘undertaking’ and the test which can be deduced from case law, it may become simpler in differentiating an economic entity from one that is non-economic.
[1] Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (TFEU) [2016] OJ C202/1. [2] Alison Jones, 'The Boundaries of an Undertaking in EU Competition Law' (2012) 8 Eur Competition J 301. [3] The purpose of this essay is to seek clarification of the notion within EU case law. [4] Case T-513/93 Consiglio Nazionale degli Spedizionieri Doganali v Commission [200] ECR II-1807, para 36. [5] Case C-41/90 Höfner and Fritz Elser v Macrotron GmbH [1992] ECR I-1979, para 21. [6] Pre-insulated Pipe Cartel [1999] OJ L24/1, para 154(“The subject of the completion rules in the Treaty is the ‘undertaking”, a concept not necessarily identical with the notion of corporate legal personality in national company or fiscal law’). [7] C-170/83 Hydrotherm Gerätebau GmbH v Compact del Dott. Ing. Mario Andreoli & C Sas.[1984] ECR 2999, para 11 (The assessment must be made in the context of the agreement concluded insofar as the same entity may be considered to be acting unilaterally or jointly depending on the nature of the agreement). [8] Alison Jones, 'The Boundaries of an Undertaking in EU Competition Law' (2012) 8 Eur Competition J 301 [9] J Gronden, ‘Services of General Interest and the Concept of Undertaking: Does EU Competition Law Apply?’ [2018] WComp 41 no. 2, 197–224. (In his Article, J Gronden argues that the market is the key actor when defining an economic entity without which we cannot commence in even describing any other notion!). [10] C-475/99 Ambulanz Glöckner [2001] ECR I-8089 para 19. [11] Case C-41/90 Höfner and Fritz Elser v Macrotron GmbH [1992] ECR I-1979 [12] (An ‘Undertaking’ encompasses any entity, (including individuals, legal persons such as companies and partnerships, state and public bodies) engaged in economic activity that offers goods and services on the given market, regardless of its legal personality or status, or the way in which it is financed.) [13] J Gronden, ‘Services of General Interest and the Concept of Undertaking: Does EU Competition Law Apply?’ [2018] WComp 41 no. 2, 197–224, 221. [14] Case C-218/00 Cisal [2001] ECLI:EU:C:2001:448 [15] Case C-218/00 Cisal [2001] ECLI:EU:C:2001:448. See point 71 of the opinion of Advocate-General Jacobs. [16] C-73/95 P Viho Europe BV v. Commission of the European Communities [1996] ECR I-5457 [17] Reuter/BASF [1976] OJ L 254/40. [18] RAI/UNITEL [1978] OJ L 157/39. [19] C-309/99 Wouters v Algemene Raad van de Nederlandse Orde van Advocaten [2002] ECLI: ECLI:EU:C:2002:98 [20] The Distribution of Package Tours During the 1990 World Cup [1992] OJ L 326/31. [21] D Chalmers et al, European Union Law (4th edn, Cambridge University Press 2019) 920 [22] U Neergard, ‘Services of General Economic Interest: The Nature of the Beast’ in Krajewski, Markus, van de Gronden, Johan, Neergaard, Ulla (eds) The Changing Legal Framework for Services of General Interest in Europe. Between Competition and Solidarity (Asser Press 2009) 20–22 [23] [23] J Gronden,’Purchasing Care: Economic Activity or Service of General (Economic) Interest?’ [2004] 25 Eur. Competition L. Rev. 87, 88–90. [24] Alison Jones, 'The Boundaries of an Undertaking in EU Competition Law' (2012) 8 Eur Competition J 301. [25] Case T-138/15 TenderNed [2017] ECLI:EU:T:2017:675. [26] [26] Case T-216/15 Union zdravotná poist’ová and Union zdravotna poist’ovna, 5 Feb. 2018, ECLI:EU: T:2018:64. [27] Case C-74/16 Congregación de Escuelas Pías Provincia Betania [2017] ECLI:EU:C:2017:496. [28] J Gronden, ‘Services of General Interest and the Concept of Undertaking: Does EU Competition Law Apply?’ [2018] WComp 41 no. 2, 197–224. [29] Case C-74/16 Congregación de Escuelas Pías Provincia Betania [2017] ECLI:EU:C:2017:496. [30] Ibid. [31] Case T-138/15 TenderNed [2017] ECLI:EU:T:2017:675. [32] Case C-205/03, FENIN [2006] ECLI:EU:C:2006:453. [33] N Dunne, ‘Knowing When to See It: State Activities, Economic Activities, and the Concept of Undertaking’ [2010] 16 Colum. J. Eur. L. 427, 446. [34] Case C-49/07 MOTOE [2008] ECLI:EU:C:2008:376.(See para. 28 of MOTOE, which says that the ‘success or economic survival of such associations depends ultimately on their being able to impose, on the relevant market, their services to the detriment of those offered by the other operators’. [35]C-309/99 Wouters v Algemene Raad van de Nederlandse Orde van Advocaten [2002] ECLI: ECLI:EU:C:2002:98. [36] Case C-343/95, Diego Calì, 18 Mar. 1997, ECLI:EU:C:1997:160. [37] Case C-343/95, Diego Calì, 18 Mar. 1997, ECLI:EU:C:1997:160 para 28. (In short the issue was the task of overseeing the compliance with environmental laws in the harbour of Genoa, which was outsourced to a private corporation. The aim of this surveillance task was to prevent pollution.) [38] Case T-138/15 TenderNed [2017] ECLI:EU:T:2017:675. [39] Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC. [40] Case T-138/15 TenderNed [2017] ECLI:EU:T:2017:675. [41] Ibid. [42] Case C-364/92, Eurocontrol, 19 Jan. 1994, ECLI:EU:C:1994:7. [43] A Ibrahim,’A Re-Evaluation of the Concept of Economic Activity for the Purpose of EU Competition Rules: The Need for Modernisation’ [2015] 11 Eur. Competition J. 265, 274. [44] Ibid., 270 [45] O Odudu, ’Economic Activity as a Limit to Community Law’ in C. Barnard & O. Odudu (eds), The Outer Limits of EU Law 232 (Oxford: Hart Publishing 2009). [46] R Schütze, European Constitutional Law 101 (2nd edn, Cambridge University Press 2016). [47] A Ibrahim,’A Re-Evaluation of the Concept of Economic Activity for the Purpose of EU Competition Rules: The Need for Modernisation’ [2015] 11 Eur. Competition J. 265, 274. [48] A Winterstein, ‘Nailing the Jellyfish: Social Security and Competition Law’[1999] 20 Eur. Competition L. Rev. 319, 329. [49] Case T-216/15 Union zdravotná poist’ová and Union zdravotna poist’ovna, 5 Feb. 2018, ECLI:EU: T:2018:64. [50] Ibid, para. 64. [51]J Gronden, ‘Services of General Interest and the Concept of Undertaking: Does EU Competition Law Apply?’ [2018] WComp 41 no. 2, 197–224. [52] J Gronden,’Purchasing Care: Economic Activity or Service of General (Economic) Interest?’ [2004] 25 Eur. Competition L. Rev. 87, 88–90. [53] Case C-74/16 Congregación de Escuelas Pías Provincia Betania [2017] ECLI:EU:C:2017:496. [54] O Odudu, ’Economic Activity as a Limit to Community Law’ in C. Barnard & O. Odudu (eds), The Outer Limits of EU Law 232 (Oxford: Hart Publishing 2009). [55] Case C-74/16 Congregación de Escuelas Pías Provincia Betania [2017] ECLI:EU:C:2017:496. [56] J Gronden, ‘Services of General Interest and the Concept of Undertaking: Does EU Competition Law Apply?’ [2018] WComp 41 no. 2, 197–224. [57] Ibid 223. [58] Ibid 224. [59] J Gronden, ‘Services of General Interest and the Concept of Undertaking: Does EU Competition Law Apply?’ [2018] WComp 41 no. 2, 197–224. [60] Case T-347/09 Germany v. Commission [2013] ECLI:EU:T:2013:418. [61] J Gronden, ‘Services of General Interest and the Concept of Undertaking: Does EU Competition Law Apply?’ [2018] WComp 41 no. 2, 197–224. [62] Ibid., 211 [63] Case T-128/98 Aéroports de Paris[2000] ECLI:EU:T:2000:290 and Case C-82/01P, Aéroport de Paris [2002] ECLI:EU:C:2002:617. [64] N Dunne, ‘Knowing When to See It: State Activities, Economic Activities, and the Concept of Undertaking’ [2010] 16 Colum. J. Eur. L. 427, 446. [65] J Gronden, ‘The Enforcement of the State Aid Rules by National (Judicial) by A. Looijestijn, C. S. Rusu & J. Veenbrink in Authorities in Boosting the Enforcement of EU Competition Law at the Domestic Level (eds) (Cambridge: Cambridge Scholars Publishing 2017). [66] E. Kloosterhuis, Defining Non-Economic Activities in Competition Law [2017]13 Eur. Competition J. 117, 143. [67] O Odudu, ’Economic Activity as a Limit to Community Law’ in C. Barnard & O. Odudu (eds), The Outer Limits of EU Law 232 (Oxford: Hart Publishing 2009). [68] J Gronden, ‘Services of General Interest and the Concept of Undertaking: Does EU Competition Law Apply?’ [2018] WComp 41 no. 2, 197–224, 221. [69] Case C-280/00 Altmark[2003] ECLI:EU:C:2003:415. [70] J Gronden, ‘Services of General Interest and the Concept of Undertaking: Does EU Competition Law Apply?’ [2018] WComp 41 no. 2, 197–224, 221. [71] J Gronden, ‘The Enforcement of the State Aid Rules by National (Judicial) by A. Looijestijn, C. S. Rusu & J. Veenbrink in Authorities in Boosting the Enforcement of EU Competition Law at the Domestic Level (eds) (Cambridge: Cambridge Scholars Publishing 2017). [72] Case C-74/16 Congregación de Escuelas Pías Provincia Betania [2017] ECLI:EU:C:2017:496 Para 47. [73] Alison Jones, 'The Boundaries of an Undertaking in EU Competition Law' (2012) 8 Eur Competition J 301. [74] D Chalmers et al, European Union Law (4th edn, Cambridge University Press 2019) 920. [75] Case T-138/15 TenderNed [2017] ECLI:EU:T:2017:675. [76] [76] Case T-216/15 Union zdravotná poist’ová and Union zdravotna poist’ovna, 5 Feb. 2018, ECLI:EU: T:2018:64. [77] Case C-74/16 Congregación de Escuelas Pías Provincia Betania [2017] ECLI:EU:C:2017:496. [78] J Gronden, ‘Services of General Interest and the Concept of Undertaking: Does EU Competition Law Apply?’ [2018] WComp 41 no. 2, 197–224. [79] Case C-74/16 Congregación de Escuelas Pías Provincia Betania [2017] ECLI:EU:C:2017:496. [80] Ibid. [81] Case T-138/15 TenderNed [2017] ECLI:EU:T:2017:675.
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