Page - 8 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 Martina Melcher 8 entrustment by statute, by administrative act, by public law concession or even by contract33 – is apparently of subordinate importance (as long as it is functional) and much liberty is given to the Member States to choose the most appropriate instrument34, it is essential that the SGEI mission is of a universal and compulsory nature and that it is entrusted by a public authority, thus highlighting the connection between the state, the undertaking and the special nature of the activity.35 Especially in horizontal legislation and soft law on SGEI and State aid, a special ‘entrustment act’ is required that has to conform with detailed prerequisites regarding the information contained therein (e.g. a description of the compensation mechanism).36 On the other hand, public service obligations have to be ‘sufficiently clear and precise’; at least their nature, duration and (territorial) scope have to be specified.37 In that regard, the Commission and the CJEU often conveniently argue that they cannot verify whether the activity in question may be covered by the concept of an SGEI if a sufficiently clear and precise definition is missing, instead of rejecting the national qualification as such. Sectoral legislation often contains specifications regarding the (substantive) features of a particular public service obligation. For example, Article 3 (2) Directive 2009/73 requires public service obligations to be clearly defined, transparent, non-discriminatory and verifiable, and to guarantee equal access for suppliers to consumers.38 It is certainly true that these minimum criteria regarding the entrustment and the entrusted mission, primarily serve a documentary purpose. They require detailed information on why a service qualifies as SGEI, thereby ensuring transparency and legal certainty, and maybe even preventing abuse and encouraging a more reflexive approach of the Member States. However, they are not completely innocuous. For one thing, they make the entrustment of public service obligations more burdensome and complex. Also, they may encourage a more rigorous control of the Commission and the CJEU based (only?) on common standards, thereby giving less weight to the needs and particularities of specific national services. To some extent, the manifest error control and the establishment of minimum criteria might even invite the EU institutions to limit the discretion of the Member States in a more extensive way. For example, the 2011 SGEI Framework explicitly prohibits the Member States from attaching ‘specific public service obligations to services that are already provided or can be provided satisfactorily […] by undertakings operating under normal market conditions’39 thereby limiting the discretion of the national authorities to determine whether public service obligations are actually needed in view of a particular national situation. Moreover, in the context of a manifest error control, the Commission and the CJEU have the last word in deciding whether such services are already (or could be) provided in a way that is consistent with the public interest as stipulated by the Member State.40 33 See 2013 SGEI-Guide, at 40 (with further references); Communication from the Commission on the application of the EU State Aid rules to compensation granted for the provision of SGEI (2011 SGEI Communication), OJ 2012 C 8/4, para 52. 34 Martin Burgi, Die Handlungsformkategorie des Betrauungsakts im EU-Beihilferecht, EuZW 90, 94 (2017). 35 Equally, JOSE LUIS BUENDIA SIERRA, EXCLUSIVE RIGHTS AND STATE MONOPOLIES UNDER EC LAW 285 (1999); Walter Frenz, Dienste von allgemeinem wirtschaftlichem Interesse - Neuerungen durch Art 16 EG, EuR 901, 907 (2000); JOHANN-CHRISTIAN PIELOW, GRUNDSTRUKTUREN ÖFFENTLICHER VERSORGUNG 85 (2001). 36 2011 SGEI Decision, recital 14. 37 Case C-66/16 P to C-69/16 P Comunidad Autónoma del País Vasco, ECLI:EU:C:2017:999, para 56. 38 See thereto Case C-265/08 Federutility, ECLI:EU:C:2010:205, and Case C-121/15 ANODE, ECLI:EU:C:2016:637. 39 2011 SGEI Framework, para 13. See also 2013 SGEI-Guide, 26 (answer to question 11). 40 See also Case T-454/13, SNCM v Commission, ECLI:EU:T:2017:134, para 125; Case C-205/99, Analir, ECLI:EU:C:2001:107, para 34 (existence of a real public service need linked to a shortage of private initiative).