Revisiting the Concept of Undertaking from a Public Procurement Law Perspective A Discussion on Easypay and Finance Engineering

What Has Changed in European Concept of Undertaking? From „FENIN“ to „EASY PAY“

“…Compared to FENIN case where economic activity as a key feature of undertaking depended on subsequent use of goods/services, in EASY PAY the crucial issue to be solved was, "whether the activity of money order operations for the payment of retirement pensions is separable or inseparable from the provision of pension funds itself." (Sánchez Graells and Herrera Anchustegui, 2015).…”

“…So, "the test employed by the CJEU appears to rest on a functional distinction." (Sánchez Graells and Herrera Anchustegui, 2015).…”

“…So, although there is undoubtedly a connection between the tool used for payment of retirement pensions and the retirement pensions scheme itself that would be sufficient for the formalistic approach of the previous case law (Sánchez Graells and Herrera Anchustegui, 2015) in EASY PAY the mere connection is no more sufficient; separability of both services is decisive for understanding what has to be considered as an economic activity and what not. Whereas pensions system granted through contributions serves the fulfilment of social function (Sánchez Graells and Herrera Anchustegui, 2015), the way the pensions are paid has the characteristics of an economic activity. Consequently, this activity should be subject to competition rules, provisions concerning state aid included.…”

“…Consequently, this activity should be subject to competition rules, provisions concerning state aid included. So, conferring an exclusive right to carry out this service has to be analysed under state aid rules and SGEI requirements (Sánchez Graells and Herrera Anchustegui, 2015).…”

“…Furthermore, Sanchez Graells and Herrera Anschustegui argue that new approach introduced by EASY PAY allows "for procurement to be carried out as a selfstanding (economic) activity with no clear or direct connection to any downstream activity, particularly through the use of central purchasing bodies..." (Sánchez Graells and Herrera Anchustegui, 2015). Central purchasing bodies can act under Directive 2014/24 as agents or wholesalers.…”