Revisiting the concept of undertaking from a public procurement law perspective - a discussion on EasyPay and Finance Engineering
New publication in the European Competition Law Review 37(3)
In EasyPay and Finance Engineering (EasyPay),1 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 to economic agents engaging in “mixed” economic and non-economic activities. 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.
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 our view, this interpretation is anchored on a functional analysis of the concept of undertaking, and it is a welcome development which will have far-reaching implications. Our focus in this article is on the potential implications of the EasyPay test in the area of public procurement and, in particular, for the activities of central purchasing bodies.