“Economic Activity”: Criteria and Relevance in the Fields of EU Internal Market Law, Competition Law and Procurement Law

Abstract

This chapter analyses the legal meaning of the notion of "economic activity" and the relevance of this notion for the applicability of EU free movement , competition and procurement rules. It shows that the CJEU makes a distinction between an activity which at an EU level can be economic, and therefore constitutes services, goods or capital in the meaning of the Treaties, and an activity which in a specific case (under a national regulation or in a specific transaction) is economic. It finds that a legal and unitary interpretation of the notion of "eco-nomic activity" for the purpose of EU rules on competition, free movement, and procurement emerges from the Court's case law. It also finds that in a case by case approach, the Court determines that an activity is economic on the basis of two criteria of agreement and remuneration, both easily fulfilled. The Court's approach implies that an activity does not have to be economic in a Member State for this Member State's regulation of this activity to be subject to EU market rules. Once the CJEU has established that public services, including social services, can be economic at a Union level, the Court finds that the Member States' regulatory and administrative measures affecting these services are covered by EU market rules. The chapter concludes that the Court's approach explains the development of its case law on public services, with a relatively lenient approach in the application of EU market rules. It also concludes that these judicial developments made it legally and politically necessary to transform the Treaties, and constitute a major cause of the emergence of SGEI as a constitutional public service concept in the post-Lisbon Treaties.