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ALJ 2019 Martina Melcher 12
show that no other measures with a less restrictive effect existed. Generally, however, in particular
regarding its most recent case law, the CJEU often only hints at a least restrictive measure
requirement, while refraining from explicitly mentioning it.61 Moreover, to the author’s knowledge,
the suitability of a measure has not been questioned by the CJEU in such a context. Similarly,
whether a derogation has an effect on the development of trade that is contrary to the interests
of the EU is hardly ever mentioned as a separate condition and even more rarely assessed.
2. Balancing in Consideration of Secondary and Soft Law
Contrary to the inconsistent and heterogenous application of the balancing test in the absence of
secondary and soft law, the very same test is much more consistent, refined and concise in the
context of soft law, horizontal and vertical (sectoral) secondary legislation which contain more
detailed rules on the relation of free competition and the provision of SGEI. Instead of a rather
vague ‘necessity test’ that was the rule after Corbeau (and still is in areas that have not been
harmonized), it seems that increasing regulation also led to a balancing that allows (only) very
specific and limited exemptions (‘customized derogations’) pursuant to Article 106 (2) TFEU. In this
context, the ‘balancing test’ turns out to require an assessment of proportionality stricto sensu.
The application of the ‘balancing test’ in the context of secondary and soft law can be illustrated by
reference to (a) the case law of the CJEU regarding the EU Gas Directives 2009/73 and 2003/55 and
(b) the so-called ‘Almunia package’ which provides general rules and guidelines for the application
of the balancing test in State aid law.
(a) In both cases, Federutility and ANODE, the CJEU had to assess ‘fixed prices’ for the supply of
natural gas against the background of Article 106 (2) TFEU and Article 3 (2) of Directive 2003/55 and
2009/73 respectively. In Federutility, the AEEG defined ‘reference prices’ which the undertakings
active on the natural gas market in Italy were required to state in their commercial offers to part
of their clients. In ANODE, a system of regulated tariffs for the sale of natural gas imposed by
national legislation in France was under scrutiny. Rightly, the CJEU asserted in both cases that the
public measures were measures which by their very nature constitute obstacles to the
achievement of an operational and competitive internal market in gas.62 However, the Directive
(specifying Article 106 (2) TFEU) permits intervention in favour of SGEI, if inter alia the principle of
proportionality is complied with. The measure in question must be suitable (appropriate) and
necessary for securing the objective of general economic interest which it pursues,63 as well as be
less of a hindrance to competition than other appropriate measures.64At the same time, it is also
limited in scope to what is strictly necessary. The CJEU provides details regarding the nature of a
proportionate (threefold) limitation to ensure that there is no excessive effect (proportionality
stricto sensu). First, the duration of the measure and thus the corresponding derogation from
competition rules must be limited. While the measure per se must not be tied to a definite expiry
61 See for example Case C-340/99 TNT Traco, ECLI:EU:C:2001:281, para 52; Case C-295/05 Asociación Nacional de
Empresas Forestales, ECLI:EU:C:2007:227, para 78; Case C-543/08 Commission v Portugal, ECLI:EU:C:2010:669,
para 93.
62 Case C-265/08 Federutility, ECLI:EU:C:2010:205, para 35; Case C-121/15 ANODE, ECLI:EU:C:2016:637, para 30 et
seq.
63 Case C-121/15 ANODE, ECLI:EU:C:2016:637, para 55 et seq. and 60 et seq. See also the Case C-242/10 Enel
Produzione, ECLI:EU:C:2011:861, para 55.
64 Case C-121/15 ANODE, ECLI:EU:C:2016:637, para 59.
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Buch Austrian Law Journal, Band 1/2019"
Austrian Law Journal
Band 1/2019
- Titel
- Austrian Law Journal
- Band
- 1/2019
- Autor
- Karl-Franzens-Universität Graz
- Herausgeber
- Brigitta Lurger
- Elisabeth Staudegger
- Stefan Storr
- Ort
- Graz
- Datum
- 2019
- Sprache
- deutsch
- Lizenz
- CC BY 4.0
- Abmessungen
- 19.1 x 27.5 cm
- Seiten
- 126
- Schlagwörter
- Recht, Gesetz, Rechtswissenschaft, Jurisprudenz
- Kategorien
- Zeitschriften Austrian Law Journal