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economic nature of the activity engaged in by the public body where the
member state allows private undertakings to participate in the same
relevant market.
It is fair to say that the comparative and market participation tests in a
number of more recent cases have been honed. In Ambulanz Glockner, it
was held that "any activity consisting in offering goods and services on a
given market is an economic activity" for the purposes of Community
competition law. In FFSA and Others v Commission [Case T-106/96], the
mere fact that an entity "is a non-profit-making body does not deprive the
activity which it carries on of its economic nature since [...] that activity
may give rise to conduct which the competition rules are intended to
penalise".
These latter judgments are in line with the court's approach in Van
Landewyck. Even where no profit-making activity is carried out by a
public entity, there may be market participation capable of undermining
the objectives of competition law.
The EC Treaty itself provides limited guidance to those activities which
may be considered economic or non-economic for the purposes of article
82. Articles 30, 45 and 46 of the EC Treaty set out the list of noneconomic grounds upon which member states may rely to justify state
obstacles to intra- Community trade in goods and services Among the
grounds identified is the protection of public health. The exercise by
member states of the right under articles 30 or 46 to restrict interstate
trade in goods and services on this ground, however, is subject to the
superior requirements of Community law. The right is subject to the
Community's doctrine of proportionality and can never operate as a
justification for arbitrary discrimination or the imposition of disguised
restrictions on trade in breach of the superior requirements of articles
28, 29 or 49. Similarly, while article 152(5) requires the Community in
the field of public health provision to respect the responsibility of
member states for the organisation and delivery of health services and
medical care, it does not follow that public health bodies may engage
with impunity in abusive behaviour which distorts competition in
upstream and downstream markets in clear violation of the spirit and
superior requirements of article 82.