L'« activité économique », un critère d'applicabilité du droit de la concurrence rebelle à la conceptualisation

Because it has reopened debates about the limits of the market, the current financial crisis has kindled a renewed interest in the notion of economic activity. Any activity deemed of an economic nature in a free-market economy is subject to competition law ; the purpose of the latter being to determine the limits of the market, but also to ensure its smooth operation. But, despite the crucial role it plays in identifying undertakings and determining which activities should and should not be governed by competition rules, the notion of economic activity has yet to be clearly defined. It is the functional character of the notion of economic activity that prevents its definite and unambiguous definition. Both at national and Community level, economic activity is essentially determined on a case-by-case basis. And, as it is intrinsically linked with the delimitation of the scope of application of competition law, the very substance of the notion is contingent upon the various circumstances and specificities related to each case ; hence, a seemingly impractical conceptualisation of the notion. Whilst it is apparent that they tend to induce the definition of economic activity from the objectives they deem should be met, in light of current political considerations, public authorities and judicial bodies claim that the applicability of competition law is conditional exclusively upon the prior determination of an economic activity. Such terminological misappropriation is attributable both to the seeming incompatibility of inductive reasoning with the safeguard of legal certainty and to the difficulty of affixing legal boundaries to an essentially economic domain. Whilst it is opportune that competition law applies to various types of social exchanges, it is, on the other hand, crucial that certain activities remain exempt from its application, due to their non-mercantile nature. Implicitly, the judge?s interpretation of the notion of economic activity is therefore largely dependent upon the necessity to either subject or exempt certain activities from competition law. This article attempts to bring to light the obstacles, at national and Community level, to resorting to the functional notion of economic activity in view of defining the scope of application of competition law, and suggests opting for an alternate method of reasoning, based on the logic of orders developed by various philosophers, in order to reveal the underlying criteria that truly and effectively actuate the application of competition law.