Seite - 15 - in Austrian Law Journal, Band 1/2019

ALJ 2019 Article 106 (2) TFEU in Case Law 15 precondition, regardless of whether they are actually suitable in a particular situation.78 Similarly, for situations in which the Member States entrust an undertaking with a public service obligation without a competitive selection procedure and very similar services are already provided or will soon be provided without such an obligation, the Commission reserves the right to require amendments if it can show that the same SGEI could be provided in a less distortive manner and at lower costs.79 In contrast, in 2008 the General Court ruled that a competitive tendering procedure for the award of an SGEI is not a condition for the application of what is now Article 106 (2) TFEU.80 Furthermore, the Commission puts increasing emphasis on the efficiency of SGEI provision and the promotion of a strict and transparent compensation mechanism, especially in the Framework81, but to a lesser degree also in the Decision82. C. Common Elements and Variations As these examples show, the respective configuration (and intensity) of the ‘balancing test’ seems to depend to a considerable degree on whether secondary legislation or soft law exists.83 In the absence of such rules, the CJEU often limits its balancing test to a mere ‘necessity test’ without (explicitly) questioning the suitability and/or proportionality stricto sensu of a measure. Only occasionally the necessity test is given a rather broad scope, thus (possibly) encompassing a test of proportionality stricto sensu. In contrast, if secondary or soft law can be used for reference, a much more concise and detailed test is applied that tolerates only customized and limited derogations pursuant to Article 106 (2) TFEU. In some cases, this dichotomy can be explained by the lack of reference points in the absence of detailed criteria in soft or secondary law, in others it is likely that suitability and proportionality stricto sensu are not explicitly referred to because these elements have not been contested. Notwithstanding the reasons, however, the structure of the balancing test should be the same whether secondary or soft law exists or not. The balancing test as it is applied in consideration of secondary and soft law should be taken as standard also in the absence of secondary and soft law. The balancing test stipulated by Article 106 (2) TFEU thus represents a (full) proportionality test which allows a limited and customized derogation only – instead of a one-sided dismissal (as assumed before Corbeau) and an exuberant consideration of SG(E)I (as sometimes supported after Corbeau). Thus, a measure which requires a derogation must be suitable to attain its objective of general economic interest, necessary to achieve that objective and be the least restrictive if other measures are equally suitable, as well as proportionate stricto sensu (i.e. devoid of an excessive effect; ‘strictly necessary’). This interpretation is compatible with the wording of Article 106 (2) TFEU which stipulates that the Treaty rules shall apply in so far as their application does not obstruct the performance of the public service obligations. It is also in accordance with its objective, namely ‘to reconcile the Member States’ interest in using certain undertakings, in particular in the public sector, as an instrument of [social,] economic or fiscal policy with the Union’s interest in ensuring compliance 78 Critically Natalia Fiedziuk, Putting Services of General Economic Interest Up For Tender: Reflections on Applicable EU Rules, 50 CMLR 87, 97 (2013). 79 2011 SGEI Framework, para 56. 80 Case T-442/03 SIC, ECLI:EU:T:2008:228. 81 See the ‘efficiency incentives’, para 39 et seq. 82 Article 5 (6) 2011 SGEI Decision. 83 Similarly, SAUTER, supra note 40, at 227. Critically, Baquero Cruz, supra note 53, at 197.