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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.
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book Austrian Law Journal, Volume 1/2019"
Austrian Law Journal
Volume 1/2019
- Title
- Austrian Law Journal
- Volume
- 1/2019
- Author
- Karl-Franzens-Universität Graz
- Editor
- Brigitta Lurger
- Elisabeth Staudegger
- Stefan Storr
- Location
- Graz
- Date
- 2019
- Language
- German
- License
- CC BY 4.0
- Size
- 19.1 x 27.5 cm
- Pages
- 126
- Keywords
- Recht, Gesetz, Rechtswissenschaft, Jurisprudenz
- Categories
- Zeitschriften Austrian Law Journal