I have had a reply from the OFT. Ironically enough, the reply came as an attached MS Word document. For interested parties, here is an edited-down
Just as well Star Office or Abiword can usually manage to handle text in these...
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. 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."
"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
The vast majority of the UK (or should that be EU) population would consider buying something to be "economic activity". It's also rather questionable how any kind of dealing (other than law enforcement) can be described as "public interest-type function". When the entity involved has been found *guilty* of breaking the law in the US and is currently under investigation within the EU. -- Mark Evans St. Peter's CofE High School Phone: +44 1392 204764 X109 Fax: +44 1392 204763