On Wed, Nov 14, 2001 at 12:14:36PM +0000, Michael Brown wrote:
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As regards the Act, the Act applies to agreements between undertakings (Chapter I) or the conduct of undertakings (Chapter II). Pursuant to section 60 of the Act, the definition of an undertaking depends on the case law of the European Court of Justice.
In Höfner & Elser1, the European Court of Justice said: 'in the context of competition law,...the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed'. As such, the NHS could be an undertaking when it is engaging in economic activity but will probably not be acting as an undertaking when it is exercising its 'public interest-type' functions.
Where does it say in the legislation, this judgement or any other prior judgement that because a body is performing a `public-interest-type' of function that it is exempt from it's obligations under the Act? IMO, if a body is performing a `public interest-type' of function then it's even more necessary that it should comply with the legislation and if it doesn't then it is culpable and should be prosecuted.
The NHS will not, therefore, be an undertaking for the purposes of the Chapter I and II prohibitions to the extent that they are purchasing services for the purpose of improving healthcare services for the benefit of society in general using monies raised by taxation. To summarise, while Microsoft Limited is undoubtedly and undertaking for the purposes of the Act, the NHS is unlikely to be an undertaking. As such, there is not agreement between undertakings for the purposes of the Chapter I prohibition. Further, as the NHS is not an undertaking there can be no breach of the Chapter II prohibition by the NHS."
In other words, the OFT's excuse for not investigating is based on legal word games rather than a substantive argument.
IMO, the OFT's excuse is pure BS. What they mean to say is: `we won't act because it will look bad if we prosecute the NHS and cast too much light on the governments cosy relationship with Redmond'. If the OFT is unable to or unwilling to do what it was set up to do, then it should be closed down and we wouldn't have to spend even more money on another bunch of worthless civil `servants' [sic].
I sent a reply debating these points, concluding with:
"I contend that the NHS is engaging in an economic activity when it makes a purchasing decision. Consequent to this, I contend that the NHS is an undertaking as defined in Höfner & Elser. As you say, there is no debate on the status of Microsoft Limited; it is clearly an undertaking. I also contend that one effect of this purchasing decision is the distortion of competition within the UK (as the action has significantly raised the barrier to competitors attempting to sell to the NHS, which is a large economic entity). Therefore, I contend that there are reasonable grounds for suspecting that one or both of the NHS and Microsoft Limited is/are infringing the Chapter I prohibition, and thus the Act gives the Director powers to investigate."
I agree with all that.
Full texts are available on request.
Perhaps you could let me have them? I want to ask the Director to give his resignation careful consideration since he's unable/unwilling to do his job. -- Frank *-*-*-*-*-*-*-*-*-*-* Boroughbridge. Tel: 01423 323019 --------- PGP keyID: 0xC0B341A3 *-*-*-*-*-*-*-*-*-*-* http://www.esperance-linux.co.uk/