The OFT has replied. Attached is a full transcript of communications to date (16KB worth). Essentially, their argument now boils down to:
"'The Court has held (in particular in Höfner & Elser) that 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.
Sickness funds, and the organisations involved in the management of the public social security system, fulfil an exclusively social function. That activity is based on the principle of solidarity and is entirely non-profit making.'
The issue of making or not making a profit is a different issue from the effective management of finances and services though.
As such, the principle of solidarity (i.e. that fact that the services available to a person under the NHS bear no relationship to the amount (if any) contributed by that person to the NHS by way of taxes or National Insurance contributions) and the fact that the body in question fulfils a purely social function is central to the question as to whether or not that body is an undertaking.
As such, whether this might involve the purchase of, say, a renal dialysis machine or the necessary computer software services required for the general purpose of helping to run the NHS is irrelevant if the purpose in both cases is to facilitate the overall objective of the NHS - the provision of free healthcare services to society as a whole."
But would this principle of "solidarity" not mean that there is a duty on the NHS to ensure that it spends money carefully. So as to maximise heathcare provision. -- Mark Evans St. Peter's CofE High School Phone: +44 1392 204764 X109 Fax: +44 1392 204763