Hofner and Elser v Macrotron (Judgment): ECJ 23 Apr 1991

Europa A public employment agency engaged in the business of employment procurement may be classified as an undertaking for the purpose of applying the Community competition rules since, in the context of competition law, that classification applies to every entity engaged in an economic activity, regardless of its legal status and the way in which it is financed.
As an undertaking entrusted with the operation of services of general economic interest, a public employment agency engaged in employment procurement activities is, pursuant to Article 90(2) of the Treaty, subject to the prohibition contained in Article 86 of the Treaty, so long as the application of that provision does not obstruct the performance of the particular task assigned to it. A Member State which has granted it an exclusive right to carry on that activity is in breach of Article 90(1) of the Treaty where it creates a situation in which that agency cannot avoid infringing Article 86 of the Treaty. That is the case, in particular, where the following conditions are satisfied: – the exclusive right extends to executive recruitment activities; – the public employment agency is manifestly incapable of satisfying demand prevailing on the market for such activities; – the actual pursuit of those activities by private recruitment consultants is rendered impossible by the maintenance in force of a statutory provision under which such activities are prohibited and non-observance of that prohibition renders the contracts concerned void; – the activities in question may extend to the nationals or to the territory of other Member States. 3. The provisions of the Treaty on freedom of movement cannot be applied to activities which are confined in all respects within a single Member State and therefore a recruitment consultant in a Member State may not rely on Articles 7 and 59 of the Treaty regarding the procurement of nationals of that Member State for posts in undertakings in the same State.


C-41/90, [1991] E C R I-1979, [1991] EUECJ C-41/90



Cited by:

CitedAlderson and others v Secretary of State for Trade and Industry CA 8-Dec-2003
The claimant had been employed in a government department, the work of which was transferred to a private company. He sought to claim compensation for the adverse changes in his contract.
Held: At the time, the Regulations gave protection only . .
Lists of cited by and citing cases may be incomplete.

European, Commercial

Updated: 01 June 2022; Ref: scu.160437