“(1) Subject to sub-paragraph (6), where a person whose contract of employment is transferred by paragraph 3 is dismissed by the transferee during the period starting on the transfer date and ending on31st March 2015 , that person is to be treated, for the purposes of Part 10 of the 1996 Act (unfair dismissal), as having been unfairly dismissed if the sole or principal reason for the dismissal is - (a) the transfer itself, or (b) a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce.”
“ “relevant transfer” means a transfer … to which these Regulations apply in accordance with regulation 3 and “transferor” and “transferee” shall be construed accordingly …”
“(1) These Regulations apply to - (a) a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity; …” (2) Regulation 3(1)(a) gives effect to article 1(1)(a) of EU Council Directive No. 2001/23 (“the Acquired Rights Directive”), which provides as follows: “This Directive shall apply to any transfer of an undertaking, business, or part of an undertaking or business to another employer as a result of a legal transfer or merger.”
“(2) In this regulation “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.” (2) Regulation 3(2) gives effect to article 1(1)(b) of the Acquired Rights Directive , which provides as follows: “Subject to subparagraph (a) and the following provisions of this Article, there is a transfer within the meaning of this Directive where there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.” (3) Regulation 3(4)(a) provides as follows: “(4) Subject to paragraph (1), these Regulations apply to - (a) public and private undertakings engaged in economic activities whether or not they are operating for gain; …” (4) Regulation 3(4)(a) gives effect to the first sentence of article 1(1)(c) of the Acquired Rights Directive , which provides as follows: “This Directive shall apply to public and private undertakings engaged in economic activities whether or not they are operating for gain. …”
“(1) This paragraph applies to any person who, immediately before the transfer date, was an employee of the transferor and - (a) is identified in Columns 1 to 3 of a table in the Schedule; or (b) has, on or after1st March 2013 but before the transfer date, been notified in writing by the transferor or transferee that they are to be transferred to the transferee on that date. (2) Subject to sub-paragraph (5), any person to whom this paragraph applies is, on the transfer date, to be transferred to the employment of the transferee. (3) Subject to sub-paragraph (5), the contract of a person to whom this paragraph applies - (a) is not terminated by the transfer; and (b) has effect on and after the transfer date as if originally made between that person and the transferee.”
“(1) Except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer , but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee. (2) Without prejudice to paragraph (1), but subject to paragraph (6), and regulations 8 and 15(9), on the completion of a relevant transfer - (a) all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee; and (b) any act or omission before the transfer is completed, of or in relation to the transferor in respect of that contract or a person assigned to that organised grouping of resources or employees, shall be deemed to have been an act or omission of or in relation to the transferee.”
“The transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.”
“(4) Subject to regulation 9, any purported variation of a contract of employment that is, or will be, transferred by paragraph (1), is void if the sole or principal reason for the variation is the transfer.”
“The distinction provided for in the sixth recital [ to Directive 80/723 on the transparency of financial relations between member-States and public undertakings ] flows from the recognition of the fact that the State may act either by exercising public powers or by carrying on economic activities of an industrial or commercial nature by offering goods and services on the market. In order to make such a distinction, it is therefore necessary, in each case, to consider the activities exercised by the State and to determine the category to which those activities belong.”
“provide or secure the provision of such facilities (including the provision or arranging for the provision of residential of other accommodation, … ) as it considers suitable and adequate.”
“… the legal analysis in this case is that North & West, having purchased the “bed” in question, then “re-supplies” that bed by means of a further contract with the resident who is liable to pay North & West the cost of his accommodation, up to his available means. Here again, it seems to us that that is activity of an “economic” character, albeit in a social context. …”
“In the judgment under appeal, the Court of First Instance dismissed the action brought by FENIN and held that the Commission had correctly applied the concept of an undertaking within the meaning of Arts 82 and 86 EC. That Court adopted a three-stage approach in reaching that conclusion. First, in para. [36] of the judgment, it distinguished between purchasing and supplying activities, stating that: “[i]t is the activity consisting in offering goods and services on a given market that is the characteristic feature of an economic activity …, not the business of purchasing, as such”
“[i]t would be incorrect, when determining the nature of that subsequent activity, to dissociate the activity of purchasing goods from the subsequent use to which they are put”
“[t]he SNS, managed by the ministries and other organisations cited in the applicant’s complaint, operates according to the principle of solidarity in that it is funded from social security contributions and other state funding and in that it provides services free of charge to its members on the basis of universal cover”
“65. The appellant claims that, in determining whether the purchasing activity of the SNS was economic in nature, the Court of First Instance should have considered whether it was liable to have anti-competitive effects in order not to create “unjustified areas of immunity”
“25. The Court of First Instance rightly held, in para. [35] of the judgment under appeal, that in Community competition law the definition of an “undertaking” covers any entity engaged in an economic activity, regardless of the legal status of that entity and the way in which it is financed ( Höfner and Elser (C-41/90):[1991] ECR I-1979 ;[1993] 4 CMLR 306 at [21]; and AOK-Bundesverband (C 264, 306, 354 & 355/01):[2004] ECR I-2493 ;[2004] 4 CMLR 22 at [46]). In accordance with the case law of the Court of Justice, the Court of First Instance also stated, in para. [36] of the judgment under appeal, that it is the activity consisting in offering goods and services on a given market that is the characteristic feature of an economic activity ( Commission v Italy (C-35/96):[1998] ECR I-3851 ;[1998] 5 CMLR 889 at [36]). 26. The Court of First Instance rightly deduced, in para. [36] of the judgment under appeal, that there is no need to dissociate the activity of purchasing goods from the subsequent use to which they are put in order to determine the nature of that purchasing activity, and that the nature of the purchasing activity must be determined according to whether or not the subsequent use of the purchased goods amounts to an economic activity. 27. It follows that the first part of the single plea raised by FENIN in support of its appeal, that the purchasing activity of the SNS management bodies constitutes an economic activity in itself, dissociable from the service subsequently provided and which, as such, should have been examined separately by the Court of First Instance, must be dismissed as unfounded.”
“Any activity consisting in offering goods and services on a given market is an economic activity.”
“Even if it is assumed that those activities had aspects of an economic nature, they could only be ancillary.”
“In this regulation “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.” 66. I accept Mr Cavanagh’s submission that the solution to this apparent tension is to be found in the opening words of article 1(1)(b) of the Acquired Rights Directive . Article 1(1)(b) (which had no predecessor in the 1977 Directive ) provides as follows: “Subject to subparagraph (a) and the following provisions of this Article, there is a transfer within the meaning of this Directive where there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.”
“(a) providing information and advice; (b) providing services or facilities designed to promote healthy living (whether by helping individuals to address behaviour that is detrimental to health or in any other way); (c) providing services or facilities for the prevention, diagnosis or treatment of illness; (d) providing financial incentives to encourage individuals to adopt healthier lifestyles; (e) providing assistance (including financial assistance) to help individuals to minimise any risks to health arising from their accommodation or environment; (f) providing or participating in the provision of training for persons working or seeking to work in the field of health improvement; (g) making available the services of any person or any facilities.”
“DsPH will be employed by local government and jointly appointed by the relevant local authority and Public Health England. They will be the strategic leaders for public health in local communities, working to achieve the best possible public health and wellbeing outcomes across the whole local population, in accordance with locally agreed priorities. They will be professionally accountable to the Chief Medical Officer (CMO) and part of the Public Health England professional network. … To be the most effective leaders possible of public health in their areas, DsPH will have a number of critical tasks, set out in more detail in the Annex, including: · promoting health and wellbeing within local government; · providing and using evidence relating to health and wellbeing; · advising and supporting GP consortia on the population aspects of NHS services; · developing an approach to improving health and wellbeing locally, including promoting equality and tackling health inequalities; · working closely with Public Health England health protection units (HPUs) to provide health protection as directed by the Secretary of State for Health; and · collaborating with local partners on improving health and wellbeing, including GP consortia, other local DsPH, local businesses and others.”
“13. A significant part of the evidence before me was directed to the issue of identifying a public administrative authority and whether the activities of the Public Health Team were economic activities, and whether the Public Health Team constituted an economic entity within the meaning of Regulation 3(1) TUPE. It was the Respondent’s contention that the team had been carrying out administrative functions within the meaning of Regulation 3(5) when it transferred. 14. The skeleton argument on behalf of the Unite Claimants helpfully posed two key factual questions namely a. What were the teams functions/activities [ sic ] (specifically, or at least most importantly at the time of and immediately before and after the transfer)? b. Were those activities inherently and unnecessarily [ sic ] state administrative activities; or were they “economic” such that they could equally be carried out by non-Governmental organisations (in the private and third sectors)?”
“29. There was very little conflict of evidence between the witnesses. The fundamental issue before me appeared to determine whether on the agreed facts and evidence, against the background of the statutory framework and the relevant authorities, the various public health functions which were transferred from the PCT to the London Borough of Croydon on1 April 2013 constituted a relevant transfer, namely whether the team which transferred from the PCT to the Respondent constituted an economic entity.”
“37. In her evidence to the Tribunal Dr Schwartz agreed that most public health functions of the Primary Care Trust transferred to Croydon Council and that local Public Health functions were there to improve the health of the public. Dr Schwartz also agreed that there were three domains namely health protection, health improvement and health services and that the role of the Council was a collaborative working with different players. 38. A significant focus of the evidence was on the commissioning role of the Council for services such as, sexual health services, weight management, healthy living, and smoking cessation. In his evidence to the Tribunal Mr Morton, Head of Health and Wellbeing at Croydon stated that after the transition the available budget rose to£22 million . The Council was responsible for procuring functions and public health has an involvement in procuring such services as advised by the Public Health Team. 39. In cross examination Mr Morton agreed that the Public Health Team had been involved [to] a significant extent [in] the commissioning of sexual health services. After the transfer or transition the Council’s legal team were involved in the commission process and the Council tightened up the way in which the services were commissioned. 40. The handover certificate from Croydon PCT to Croydon Counsel [sic], page 1846 to 1847, relating to adult weight management service was stated by Mr Morton in his evidence as representing the bulk of commissioning, together with smoking cessation, page 1841. In her witness statement Dr Schwartz said that in her experience the PCT had been primarily a commissioning body and that only a few small functions were provided in-house. 41. In cross examination Dr Schwartz was asked how much of her working week were spent on procurement. Dr Schwartz stated that she led what her team did but a very little of her own time was spent on procurement which she put at 2%. In relation to documentation Dr Schwartz stated she had to see the documents to make sure that they were fit for the purpose namely embodying Public Health Principles. When asked whether Public Health was a Governmental function Dr Schwartz replied “yes ultimately it is. Strategic objective is given by local officers.”
“43. Public Health activities were not fundamentally different in kind from other health care services and that health protection was only a small part of the Public Health Team. Health prevention was no different in kind from the treatment of those injured or unwell and that the activity involved in such could be carried out both in the public and private sector. There was a large market for health promotion. … 47. Mr Hutcheon on behalf of the Unite Claimants submitted that the Tribunal should focus on what the activities of the team actually were. The activities involved commissioning, research, ie needs assessment, training, maintenance of public health library which were all services offered on a market. The functions of the Public Health Team could be contracted out.”
“48. Mr Hutcheon pointed out that Mr Morton had accepted that a very significant part of teams activities [ sic ] and that prior to the transfer commissioning had accounted for half of the team’s budget. Immediately on transfer the team had a budget of£22m a significant proportion of which was spent on commissioning of sexual health services. … 49. … Mr Morton had accepted the proposition that “all or almost of the work done by the Public Health Team can be, and in fact is, offered by non-state actors operating in the same market”
“61. In my Judgment, the background to this case is the role of government in the protection and improving the health of the public. Dr Schwartz agreed that Public Health was ultimately a governmental function. In order to undertake its role in public health protection, Government operates through the agency of bodies or organisations such as PCT’s and local authorities. 62. I considered that there was significant force in the Respondent’s submission that the function of maintaining public health is quintessentially governmental which involves the provision of healthcare services with the aim or intention of improving the health of the population. 63. I bore in mind the fact that theNational Health Service Act 2006 established PCT’s and provided that healthcare included the promotion and protection of public health.The Health and Social Care Act 2012 provided that each local authority must take such steps as it considers appropriate for improving the health of the people in its area. Both PCT’s and local authorities were and are responsible for activities involved in the promotion of and the provision of public health functions. 64. The statutory framework reflects the involvement of government and its responsibility for the provision of public health.”
“65. The Henke exception reflected in Article 1(c) of the Acquired Rights Directive 2001/23/EEC and incorporated into UK domestic law by regulation 3 of TUPE 2006 expressly provides an exception to the general provision of the protection of employees’ rights on transfer. 66. The cases I have been referred to such as Scattolon , and Bettercare , where the Henke exception did not apply, involved the transfer of a particular activity, namely the transfer of school cleaners in Scattolon and the provision of retirement homes for the elderly in Bettercare involved economic activities. They involved particular activities being transferred which were in themselves economic activities, the transfers did not involve the contracting out of the public health responsibilities. The present case was triggered by the proposed changes to the terms and conditions of the Claimants, not by the transfer itself of a particular aspect of the responsibilities of the team from the PCT to the Respondent.”
“67. In FENIN the Advocate-General considered that that [ sic ] the issue was whether the function involved was economic or the exercise of public authority, and that if the function was pursuant to the exercise of public authority, it was not converted into an economic activity, even if it was contracted out. The Advocate-General in FENIN stated (AG 66): Thus, where a purchase is linked to the performance of non-economic functions, it may fall outside the scope of competition law. 68. Paragraph 21 of the judgment in FENIN held, … that there is no need to dissociate the activity of purchasing goods from the subsequent use to which they are put in order to determine the nature of that purchasing activity, and that the nature of the purchasing activity must be determined according to whether or not the subsequent use of the purchased goods amounts to an economic activity.”
“69. In the particular circumstances of this case, I consider that the overarching role of both the PCT and subsequently the local authority involved the responsibility of the state through the public health team in the provision of the state’s responsibility for public health. The case of Diego Cali is clear authority for the contention that the activity contracted out, namely the contracting out of anti pollution activities involved a governmental activity, namely the protection of the environment. In the closing submissions on behalf of the Respondent, it was noted that the public health team does not bid for contracts and that unlike the position of private health providers; the team is not trying to obtain business. I am not persuaded that the involvement of private providers through the process of commissioning undermines the ultimate responsibility of the Respondent for public health.”
“8. It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted. 9. Nothing that I have just said is, as I believe, in any way inconsistent with previous authority on this subject. In UCATT v Brain[1981] ICR 542 , Lord Justice Donaldson (as he then was) said at page 551: “Industrial Tribunals’ reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law … The reasons are then recorded and no doubt tidied up for differences between spoken English and written English. But their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given.” 10. A further statement was made by my Lord in Alexander Machinery (Dudley) Ltd v Crabtree[1974] ICR 120 , and these observations are cited by Lord Justice Eveleigh in Varndell v Kearney & Trecker Marwin Ltd[1983] ICR 683 : “It is impossible for us to lay down any precise guidelines. The overriding test must always be: is the Tribunal providing both parties with the materials which will enable them to know that the Tribunal has made no error of law in reaching its findings of fact? We do not think that the brief reasons set out here suffice for that purpose.”
“He is not, as I read that judgment, saying that in every case all these points to which I refer must be adhered to, otherwise there will be an error of law in the decision of the Tribunal.” 11. Lastly, in Martin v Glynwed Distribution Ltd[1983] ICR 511 at page 520F, my Lord said: “The duty of an Industrial Tribunal is to give reasons for its decision. This involves making findings of fact and answering a question or questions of law. So far as the findings of fact are concerned, it is helpful to the parties to give some explanation of them, but it is not obligatory. So far as the questions of law are concerned, the reasons should show expressly or by implication what were the questions to which the Industrial Tribunal addressed its mind and why it reached the conclusions which it did, but the way in which it does so is entirely a matter for the Industrial Tribunal.” ”
“Accordingly, in due course the ET will have to determine whether and to what extent a reason for the Claimants’ dismissal was a TUPE transfer or a reason connected with such a transfer. However, if the Claimants were not transferred into the employment of the Respondent by Regulation 4 TUPE 2006, then the [Council] will contend that any dismissal could not be by reason of or for a reason connected with any relevant transfer (so as to be contrary to Regulation 7 TUPE 2006). If a “relevant transfer” had not caused the pay disparity between the Claimants and the [Council’s] other employees, it could not be the cause of the need to harmonise terms and conditions of employment.”
“72. Turning to the issue of ‘ouster’, the Respondent contended that in the event that there was a relevant transfer it would not and could not have operated so as to terminate the contracts of employment of any of the Claimants, namely to operate to terminate their contracts of employment with the transferor because their employments had been preserved by the provisions of theHealth and Social Care Act 2012 (Croydon Primary Care Trust) Staff Transfer Scheme 2013. 73. The Claimants contended that Regulation 4 of TUPE should be construed by disapplying the words “which would otherwise be terminated by the transfer”
“9. If we now turn to the examination of the substance of the question submitted to the Court, on the basis of the aforesaid considerations concerning the possibility of subjecting Eurocontrol to the Community rules on competition, it is apparent that the essential factor in classifying a body as an undertaking is the pursuit of an economic activity capable of being carried on, at least in principle, by a private undertaking with a view to profit . The pursuit of an activity that involves the exercise of official powers is, on the other hand, incompatible with that classification, with the result that a body acting as a public authority is not subject to the Treaty rules on competition. In that connection it must be observed that, whilst the Court has preferred not to define that concept in abstract terms, the judgments that refer to it, in the various areas of Community law in which that concept is relevant, follow the path marked out by Mayras AG in his opinion in Reyners , according to whom “ official authority is that which arises from the sovereignty and majesty of the State; for him who exercises it, it implies the power of enjoying the prerogatives outside the general law, privileges of official power and powers of coercion over citizens ”
“This leads me to the conclusion that air control constitutes a natural monopoly in the air space where it is carried out, and in that respect, competition between two bodies not only is not desirable but would not even be possible in practice. In the final analysis it is a public service to which any idea of commercial exploitation with a view to profit is alien : which may not be incompatible, where appropriate and given equal efficiency, with economic management of the activity in question.”
“13. As appears from the preamble to the Directive, in particular the first recital, the Directive sets out to protect workers against the potentially unfavourable consequences for them of changes in the structure of undertakings resulting from economic trends at national and Community level, through, inter alia, transfers of undertakings, businesses or parts of businesses to other employers as a result of transfers or mergers. 14. Consequently, the reorganisation of structures of the public administration or the transfer of administrative functions between public administrative authorities does not constitute a “transfer of an undertaking” within the meaning of the Directive.”
“17. It appears that, in the circumstances to which the main proceedings relate, the transfer carried out between the municipality and the administrative collectivity related only to activities involving the exercise of public authority . Even if it is assumed that those activities had aspects of an economic nature, they could only be ancillary .”
“… Apart from the classic area of municipal undertakings and the sphere of functions involving only the exercise of public powers, it seems to me that in particular it will be difficult and not always possible to draw the distinction in a particular case . Even in the area of activities involving the exercise of public powers, there has been a huge change in recent years. Activities which a few years ago were still regarded as purely for the public authorities are now being carried out by private undertakings. … This means that the criterion of activity in the exercise of public powers is very difficult to pin down, since it is subject to constant change. What is today regarded as purely public may, in even only a few years, be carried out by a private undertaking with a view to profit. It also cannot be ruled out that functions carried out by a private undertaking will not be regarded after a time as being again functions of the public authorities. …”
“41. It is clear from the case law of the Court of Justice, and more especially the judgments in Sat Fluggesellschaft and Poucet , that certain bodies that are the instruments of a policy in the (general) public interest and enjoy prerogatives of the public authority, that is to say bodies that exercise an activity typical of a public authority or have an exclusively social function , do not constitute undertakings and are not therefore subject to the Community rules on competition. 42. In reaching those conclusions, the Court of Justice has focused on the nature of the activity exercised, that is to say whether or not it is of an economic nature and whether it could, in principle, be performed by a private profit-making undertaking . It has also considered the aim of the activity and the rules to which it is subject . In addition, the Court has looked at a number, or bundle, of indicators that on their own are not sufficient to rule out that an activity is of an economic nature and establish that it falls outside the scope of competition law. Basically, the Court has assessed the extent to which the entity whose activities are under review operates in compliance with the rules laid down by the administrative authorities and whether, more particularly, it has the power to influence the level of the consideration demanded in return for the services provided to users, and the extent to which it is profit-making.”
“47. The anti-pollution surveillance carried out by SEPG at the Porto Petroli meets the fundamental need to ensure the safety of both users of the Porto Petroli and the inhabitants of the surrounding area. As well as being geared to protection of the environment, an aspect that I shall consider below, that activity is directly linked, if not equivalent, to the function of policing the maritime area of the port, and that, in my view, is a function that may be exercised by a public authority, regardless of the legal form adopted for its organisation and administration. Consequently, a legal body assigned the above responsibilities may not be deemed to be an undertaking within the meaning of Article 86, and it is therefore unnecessary to consider whether it constitutes an undertaking entrusted with the operation of services of general economic interest, within the meaning of Article 90(2) of the Treaty. 48. Furthermore, it seems to me that the performance of the abovementioned tasks, that is to say SEPG’s anti-pollution activities, ought specifically to be recognised by the Court as constituting an essential function of the State . In other words, an activity that consists in anti-pollution surveillance of the maritime environment, that is to say in protecting the environment, cannot constitute the activity of an undertaking but falls into the category of a core State activity . 49. In the light of the above analysis, I consider that in so far as it involves anti-pollution surveillance of the Porto Petroli, the activity of SEPG cannot conceivably be carried out within a competitive system , since that would jeopardise, if not destroy, the effectiveness of the system of safeguards as regards both the port environment and the safety of port users and inhabitants of the surrounding areas. It is therefore a public service unrelated to commercial profit-making activity . Furthermore, that this service is provided for the benefit of the whole of the community is also apparent from the fact that the surveillance has to be exercised regardless whether the fees owed by any particular vessel have been paid.”
“… It may be concluded that the scope of the Directive is not determined by the transferor and its status under public or private law, as long as the transferor is exercising an economic activity. It is not therefore the nature of the transferor which is decisive, but the nature of the activity carried on. The exercise of public authority cannot be the subject of a business transfer within the meaning of the Directive.”
“55. In the submission of the French Government, the activity carried on by APIM on behalf of the municipality of Metz cannot be characterised as an economic activity. The documents in the case, it maintains, show that the primary activity of APIM consisted in promoting the City of Metz and in attracting economic activities to its territory. That activity, carried out on behalf of a local authority and in the general interest, and thus in the public interest, is more akin to a task carried out in the general interest. 56. That, however, is not how the Court has defined “economic activity”. 57. According to settled case law of the Court, any activity involving the offer of goods and services in a given market constitutes an economic activity . … 58. That definition , laid down in the context of the law of competition and of the free movement of services, has been transposed to the context of Directive 77/187. …”
“61. Furthermore, posts including functions which, although performed within a structure which could be classified as an economic entity, are linked to the exercise of public authority, do not constitute economic activities: Henke and Sánchez Hidalgo … The court has however given a strict definition to that type of post. It only covers posts which involve a genuine participation, directly or indirectly, in the exercise of public authority and in the functions intended to safeguard the general interests of the state or other public bodies … That definition encompasses posts which contribute to particular tasks of the public administration - for example, national defence, internal security, public finances, the judicial system and home affairs, posts in ministries and central banks - provided that the activities in question are specifically centred on a political or judicial power .”
“67. It will be recalled that for the purposes of Community competition law the concept of undertaking encompasses every entity engaged in an economic activity regardless of the legal status of the entity and the way it is financed . The basic test is whether the entity in question is engaged in an activity which consists in offering goods and services on a given marke t and which could, at least in principle, be carried out by a private actor in order to make profits . 68. In the present case, it is clear from the facts of the main proceedings that non-emergency patient transport has in the past been carried out in Germany by private undertakings with a view to making profits . Moreover, it appears from the file that Ambulanz Glöckner has in the past also provided emergency transport services. Nothing therefore suggests that the nature of either emergency or patient transport is such that those services must necessarily be carried out by public entities. Whether emergency or patient transport generates profits will depend exclusively on the remuneration which the operator obtains for his services. Furthermore, the referring court states that under German civil law, too, the relationship between ambulance service provider and patient is viewed as an “ordinary service contract”
“51. I conclude from those considerations that such exclusion from the scope of Directive 77/187 is justified not by the public-law nature of the entities at issue, but rather, on the basis of a functional approach, by the fact that a transfer relates to activities involving the exercise of public authority . However, where a transfer relates to an economic activity, it falls within the scope of that directive. The public-law or private-law nature of the transferor and the transferee is of little importance, in that regard. Subsequent judgments demonstrate that the Court upheld that functional approach, placing the emphasis on the existence or otherwise of an activity involving the exercise of public authority.”
“The court has made clear in that regard that the notion of economic activity encompasses any activity consisting in offering goods or services on a given market . Activities which fall within the exercise of public powers are excluded as a matter of principle from classification as economic activity. However, services which are carried out in the public interest and without a profit motive and are in competition with those offered by operators who seek to make a profit may be classified as economic activities for the purposes of article 1(1)(c) of Directive 2001/23: Scattolon v Ministero dell’Istruzione, dell’Università e della Ricerca (Case C-108/10 )[2012] ICR 740 ;[2011] ECR I-7491 , paras 43 and 44 and the case law cited.”