Wrestling the Two-Headed Hydra: On the Consequences of the Bifurcated Concept of "Undertaking" in EU Competition Law.

Abstract

The evolution of the CJEU's jurisprudence has led to the emergence of a distinct, sector-specific notion of economic activity in the context of services delivered within public healthcare systems. This interpretation diverges markedly from the general framework applied in other sectors. This form of conceptual dualism lacks a clear normative foundation in the provisions of the TFEU and poses a potential challenge to the integrity of the role assigned to services of general economic interest under both the Treaty and established CJEU case law. Significantly, the exclusion of practically all activities within public healthcare systems from the ambit of EU competition law has the potential to generate significant distortions of competition. This is particularly relevant in the context of healthcare systems, such as that of Poland, which exhibit a mixed structure and where public and private providers engage in substantial competition.