A re-evaluation of the concept of economic activity for the purpose of EU competition rules: the need for modernisation

Abstract:

Despite its major significance for competition policy, the concept of economic activity was excluded from the modernisation efforts led by the Commission and EU courts.

In light of the recent developments in EU competition policy, this article examines the continuing adequacy of the criteria that characterise economic activity. It argues that while the offer of goods or services having the potential to make profit could be a useful starting point to determine economic activity, this is by no means conclusive. These criteria have revealed their shortcomings in such a way that the consistent application of the Treaty provisions is put at risk. Therefore, it is necessary to suggest a modernisation framework that preserves the uniform application of EU competition rules while enhancing the public/private divide within Treaty provisions.

This analysis aims to provoke wider debate among policy makers, academics and practitioners on the shortcomings of the prevailing definition of the concept of economic activity for the purpose of the application of EU competition rules.