Seite - 10 - in Austrian Law Journal, Band 1/2019

ALJ 2019 Martina Melcher 10 may be justified if the measure in question is necessary in order for the undertaking to fulfil its duties under economically acceptable conditions.45 This (much more) generous interpretation of Article 106 (2) TFEU emphasizes the unique position of SGEI and makes the actual and proper provision of SGEI the primary condition for a derogation from competition law.46 What counts is whether the particular public service obligation of the undertaking would be endangered without the respective measure(s). A negative financial balance or threat to the economic survival of the undertaking are not required. Actually, even a mere potential legal or factual (i.e. economic) obstruction may allow for a derogation.47 Furthermore, the CJEU permits the Member States to grant exclusive rights to undertakings in economically profitable areas if this enables cross-subsidizing in other areas where public service obligations have to be satisfied, and thus inhibits cherry-picking of competitors.48 However, a derogation with regard to activities, which can be separated from SGEI and which do not endanger the balance between profitable services and SGEI, cannot be justified.49 In sum, Corbeau and subsequent cases are based on the assumption that the provision of SGEI cannot be reduced to being an obstacle to competition, but rather represents a value in itself. Article 106 (2) TFEU is not used as an exemption rule strictu sensu (anymore), but is rather applied as a balancing provision for the welfare (and economic) interests of the Member States and the EU regarding the operation of SGEI on the one hand and the establishment and functioning of the internal market on the other hand.50 This interpretation is much more in line with the original purpose of Article 106 (2) TFEU as a compromise between the more public service-oriented and the more market-oriented systems of the Member States.51 It is also supported by the ‘new’ legal context of SGEI, namely Article 14 TFEU, the SGI-protocol and Article 36 CFR, which the CJEU now explicitly takes into account when interpreting Article 106 (2) TFEU.52 Finally, the interpretation of Article 106 (2) TFEU as a balancing rule together with the reference to a ‘social market economy’ that was introduced by the Treaty of Lisbon shows that (undistorted) competition should not been seen as an overarching objective of EU law, but rather as a tool that is used to enhance the functioning of the market, including its more welfare oriented aspects. 45 Case C-320/91 Corbeau, ECLI:EU:C:1993:198, para 16; recently Case C-437/09 AG2R, ECLI:EU:C:2011:112, para 76 (emphasis added). 46 Cf Tarjei Bekkedal, Article 106 TFEU is Dead. Long Live Article 106 TFEU!, in DEVELOPMENTS OF SERVICES OF GENERAL INTEREST 61, 100-102 (Erika Szyszczak et al. eds., 2011). 47 Note the use of subjunctive, e.g. in Case C-437/09 AG2R, ECLI:EU:C:2011:112, para 80; Case C-67/96 Albany, ECLI:EU:C:1999:430, para 111. 48 For example, Case C-475/99 Ambulanz Glöckner, ECLI:EU:C:2001:577, para 65. 49 Case C-320/91 Corbeau, ECLI:EU:C:1993:198, para 19; Case T-260/94 Air Inter, ECLI:EU:T:1997:89; equally Frenz, supra note 35, at 911 et seq. 50 See Tony Prosser, The Limits of Competition Law, 174 et seq (2005); ERIKA SZYSZCZAK, THE REGULATION OF THE STATE IN COMPETITIVE MARKETS IN THE EU, 139 et seq (2007). For a detailed account of case law on Article 106 (2) TFEU until 1992: FABIAN LÖWENBERG, SERVICE PUBLIC UND ÖFFENTLICHE DIENSTLEISTUNGEN IN EUROPA,163 et seq (2001). 51 Similarly Komorowski, supra note 41, at 311. 52 See, for example, Case C-121/15 ANODE, ECLI:EU:C:2016:637, para 40.