Acquisition of prototypes and management of intellectual property is not an economic activity since there is no offer of goods or services

26-03-2009 Print this page
IPPT20090326, ECJ, Selex v Commission - Eurocontrol

COMPETITION LAW


The acquisition of prototypes in the context of that activity and the related management of intellectual property rights did not make that activity an economic one, since the acquisition did not involve the offer of goods or services on a given market.

 

"114. It is clearly not on that ground that the Court of First Instance held that the Commission did not make a manifest error of assessment when it took the view that the research and development activity financed by Eurocontrol was not an economic activity and that the rules on competition were not applicable to it. Indeed, it is apparent from paragraph 75 of the judgment under appeal that the Court of First Instance considered that the acquisition of prototypes in the context of that ac-tivity and the related management of intellectual prop-erty rights did not make that activity an economic one, since the acquisition did not involve the offer of goods or services on a given market. Moreover, for the rea-sons set out at paragraph 102 above, that analysis is untainted by errors of law."

 

Eurocontrol granted licences relating to the prototypes at no cost indicated that the management of intellectual property rights was not an economic activity.
 

"115. Next, Selex criticises the judgment under appeal for stating, at paragraph 77, that intellectual property rights were not acquired for the purpose of their com-mercial exploitation and that the licences were granted at no cost. Those assertions, even if they were true, are in conflict with the case-law which states that the fact that an entity does not seek to make a profit is irrele-vant for the purpose of determining whether it is an under-taking.

116. Contrary to those submissions, it is apparent from the case-law that the fact that a body is non-profit-making is a relevant factor for the purpose of determin-ing whether or not an activity is of an eco-nomic nature but it is not sufficient of itself (see, inter alia, to that effect, Case C-244/94 Fédération française des sociétés d’assurance and Others [1995] ECR I-4013, paragraph 21; Case C-67/96 Albany [1999] ECR I-5751, para-graph 85; and Case C-237/04 Eniri-sorse [2006] ECR I-2843, paragraph 31).

117. Accordingly, the Court of First Instance did not err in law when, after pointing out that, when assessing whether a given activity is an economic activity, the absence of remuneration is only one indi-cation among several others and cannot by itself exclude the possibil-ity that the activity in question is economic in nature, it considered that the fact that Eurocontrol granted li-cences relating to the prototypes at no cost indicated that the management of intellectual property rights was not an economic activity, an indica-tion that was also supported by other evidence."


The grounds of the judgment under appeal that are the subject of criticism do not in any way preclude the possibility that technological development may be an economic activity and nor do they preclude the possibility that an entity which has public service obligations can pursue an activity of that nature.

 

"119. On that point, it must be noted that the grounds of the judgment under appeal that are the subject of criticism do not in any way preclude the possibility that technological development may be an economic activ-ity and nor do they preclude the possibility that an entity which has public service obligations can pursue an activity of that nature. The Court of First Instance simply assessed the factors specific to the case and, without erring in law or falling foul of the case-law in-voked, deduced from the fact that no charge was made for the management of intellectual property rights and the fact that Eurocontrol’s mission was pursued purely in the interests of public service – the activity forming part of that mission and being ancillary to that of pro-moting technical development – that the activity was not economic in nature."

 

IPPT20090326, ECJ, Selex v Commission - Eurocontrol

 

C-113/07 P - ECLI:EU:C:2009:191