Between exercising of public powers and economic activity. The latest findings on the notion of entrepreneur made in the process of judicial review of the decision of the President of the Office of Competition and Consumer Protection

There is no doubt that public authorities may be directly or indirectly involved in economic activity. A traditional way of distinguish state activity which is not subject to the rules of the market is to decide when the state acts as public authority. In case of state activity two category of situations should be distinguished: these where the state is engaged in an economic activity (sphere of dominium) and these when the state acts by exercising of public powers (sphere of imperium). In the opinion of the author of the article, the distinction between imperium and dominium is still relevant. According to the Competition and Consumer Protection Act of February 16, 2007, an entrepreneur is inter alia natural and legal person, as well as an organisational unit without a legal status to which legislation grants legal capacity, organising or providing public utility services which do not constitute economic activity in the meaning of the provisions on freedom of economic activity. The President of the Office of Competition and Consumer Protection found that public authorities exercising their administrative powers (sphere of imperium) may be classified as entrepreneurs. In the recent decisions which were subject of judicial review the President of UOKiK decided that the National Health Fund – a state authority responsible for organization and management of health care services in Poland – is an entrepreneur in the meaning of the Polish law (act on competition and consumer protection). The aim of this article is to answer the question whether competition rules should be applied to the state activity in the imperium sphere. This article will focus on the notion of an entrepreneur (undertaking) in polish and EU law in the context of the activity of the state