Staatliches Handeln und Kartellrecht

Abstract

Economic and non-economic activities of public authorities and Competition Law

Activities of public authorities can be considered either as exercising public power or economic in nature. This classification is necessary for the purposes of the application of the rules on competition of the Treaty on the Functioning of the European Union (TFEU), which only apply to undertakings engaged in economic activities. In this context, according to consistent case law, legal entities of a State can be regarded as an undertaking to only part of its activities, if that economic activity can be separated from the exercise of public power. In the case C-138/11 (Compass-Datenbank GmbH v. Republik Österreich), the European Court of Justice had to decide, whether the activity of a public authority, concerning collecting and storing economic data as well as giving access to third parties on the basis of statutory obligations, constitutes an economic activity. In the present case the Court held that the collection of data based on statutory obligations falls within the exercise of public power. Any other related activities such as maintenance, the making available to the public of the data collected and also the charging of fees or payments cannot be separated from the collection of the data, because the mere collection of the data would be largely useless without the associated services.

Against this background the authors examine the relevant jurisdiction and discuss selected aspects of the way the European Court defines economic activities critically. They come to the conclusion that – except for exercising public power – the competition rules should be applied universally, also for public demand. To protect governmental interests, without harming the definition of an undertaking by making exemptions, the authors propose the application of Art. 106 (2) of the TFEU.