Seite - 7 - in Austrian Law Journal, Band 1/2019

ALJ 2019 Article 106 (2) TFEU in Case Law 7 compared with that served by other economic activities’23 and, second, – to attain that objective – so-called public service obligations24 have to be imposed, usually by an act of entrustment, on the undertaking in question. The derogation referred to in Article 106 (2) TFEU can only be invoked if both conditions (objective of general interest; imposition of public service obligation) are fulfilled. Interestingly, these conditions also correspond to the first Altmark criterion,25 thereby suggesting that SGEI in EU law generally have to be identified by reference to an objective of general interest and the imposition (entrustment) of a public service obligation. Consequently, a service that is of general economic interest, but is not (or should not be) entrusted with a particular public service obligation cannot be classified as an SGEI in EU law.26 This aspect is often overlooked. As regards the first condition, it is assumed that the Member States enjoy considerable discretion to define (economic) services of general interest, i.e. to identify and determine corresponding objectives and public service obligations.27 In fact, Article 1 SGI-protocol explicitly lists the wide discretion of the national, regional and local authorities in providing, commissioning and organising such services as part of the shared values of the EU in respect of SGEI. The Member States may also take account of national circumstances and objectives pertaining to their particular national policy.28 Arguably, in practice the Commission and the CJEU tend to accept the assessment of a Member State that a certain service is of general (economic) interest in order to avoid any obvious interference or legal control of national policies;29 thus, rejections (solely) with reference to the first criterion are actually rare.30 Only with regard to certain sectors that have already been liberalized and regulated by (secondary) EU law, e.g. utility services, the EU institutions apply a stricter control in coherence with the objectives stipulated in the relevant legislation.31 Considerably less overall restraint is shown with regard to the second condition, namely the imposition of a public service obligation. On the one hand, emphasis is put on the actual imposition of such obligations,32 which is generally referred to as ‘entrustment’. While the act itself – be it an 23 Case T-461/13 Spain v Commission, ECLI:EU:T:2015:891, para 62 (with further references); Case T-219/14 Regione autonoma della Sardegna v Commission, ECLI:EU:T:2017:266, para 154. 24 Public service obligations is the broader concept that also encompasses universal service obligations, see MELCHER, DIENSTLEISTUNGEN VON ALLGEMEINEM WIRTSCHAFTLICHEM INTERESSE IM EUROPÄISCHEN PRIVATRECHT 35 et seq (2016). 25 Case T-461/13 Spain v Commission, ECLI:EU:T:2015:891, para 60 (with further references). 26 Cf the answer to question 11 in the Commission Staff Working Document from 29 April 2013, Guide to the application of the EU rules on state aid, public procurement and internal market to services of general economic interest, and in particular to social services of general interest (SGEI-Guide 2013), SWD (2013) 53 final/2, at 26. 27 2011 SGEI Communication, OJ 2012 C 8/4, para 46. See also Case C-265/08 Federutility, ECLI:EU:C:2010:205, para 29; Case C-121/15 ANODE, ECLI:EU:C:2016:637, paras 41-44; Case T-289/03 BUPA, ECLI:EU:T:2008:29, para 167. 28 Case C-265/08 Federutility, ECLI:EU:C:2010:205, para 29; confirmed by Case C-121/15 ANODE, ECLI:EU:C:2016:637, para 44. 29 For example, Case T-17/02 Olsen v Commission, ECLI:EU:T:2005:218, para 215-228 (maritime connections between the Canary Islands); case T-309/04 TV2/Danmark and Others v Commission, ECLI:EU:T:2008:457, para 101–124 (broadcasting SGEI). 30 Examples of manifest errors include, for example, port operations as in Case C-179/90 Merci convenzionali porto di Genova, ECLI:EU:C:1991:464, para 27; Case C-242/95 GT Link, ECLI:EU:C:1997:376, para 53; Joined Cases C-34/01 to C-38/01 Enirisorse, ECLI:EU:C:2003:640, para 33 et seq. 31 See thereto Case C-265/08 Federutility, ECLI:EU:C:2010:205, para 32; Case C-121/15 ANODE, ECLI:EU:C:2016:637, para 47 et seq 32 Case C-66/16 P to C-69/16 P Comunidad Autónoma del País Vasco, ECLI:EU:C:2017:999, para 71 with further references.