Page - 11 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 Article 106 (2) TFEU in Case Law 11 B. Balancing in Context 1. Balancing in the Absence of Secondary Legislation and Soft Law Despite this promising development in favour of a ‘balancing test’, its structure and elements as well as the required intensity of control are still subject to some discussion. Case law and corresponding analyses vary to a considerable degree.53 Especially in situations, in which the CJEU cannot resort to secondary or soft law, the balancing and the elements that are taken into consideration seem to differ from case to case. Only a general ‘necessity test’ is applied on a regular basis. In this regard, the CJEU investigates whether a derogation from the Treaty rules is necessary for the provision of an SGEI. For example, in the case AG2R the CJEU found that an undertaking, which is obliged to offer cover to the employees of all undertakings in the French traditional bakery sector, would suffer from an increasing share of ‘bad risks’ resulting in a rise of costs which would consequently lead to lower quality services if it were not granted the exclusive right (i.e. statutory monopoly) to manage that scheme.54 The annulment of such a right ‘could have the result of making it impossible for the body concerned to accomplish the tasks of general economic interest […] under economically acceptable conditions’.55 Based on that assessment the CJEU considered a derogation from the rules on competition as permissible without referring to any further requirements. In contrast, the CJEU explains in the case OTOC that Article 106 (2) TFEU – if it were indeed applicable to a system of compulsory training for chartered accountants whose SGEI nature the court seriously doubted – could not be applied in the situation at hand, inter alia because the restrictions on competition go ‘beyond what is necessary’56, thereby indicating a test of ‘strict necessity’. An explicit and detailed assessment of proportionality stricto sensu, however, has not been applied in this context by the ECJ so far; though, the General Court, (at least) refers to the requirements of necessity and proportionality that can be derived from Article 86 (2) EC (= Article 106 (2) TFEU) in the BUPA case.57 Explicit references to a least restrictive measure requirement can be found in the case Commission v Italian Republic58, where the Commission had to prove the existence of a least restrictive measure, as well as the cases Dusseldorp59 and Sydhavnens60, where the Member States had to 53 For example, the ‚balancing test‘ has been described as a test of (strict) necessity (NINA NOLTE, DEREGULIERUNG VON MONOPOLEN UND DIENSTLEISTUNGEN VON ALLGEMEINEM WIRTSCHAFTLICHEN INTERESSE 90 (2004); SVEN SIMON, LIBERALISIERUNG VON DIENSTLEISTUNGEN DER DASEINSVORSORGE IM WTO- UND EU-RECHT 304 (2009)), of suitability (Julian Baquero Cruz, Beyond Competition: Services of General Interest and European Community Law, in EU LAW AND THE WELFARE STATE, 169, 195 (Gráinne de Búrca ed., 2005)) and of proportionality (BUENDIA SIERRA, supra note 35, at 300 et seq; Wernhard Moeschel, Service public und europäischer Binnenmarkt, 58 JuristenZeitung 1021, 1026 (2003); Gareth Davies, What Does Article 86 Actually Do?, in THE CHANGING LEGAL FRAMEWORK FOR SERVICES OF GENERAL INTEREST IN EUROPE, 51, 66 (Markus Krajewski, Ulla Neergaard and Johan Van de Gronden ed., 2009); Bekkedal, supra note 46, at 68 et seq; MARKUS KRAJEWSKI, GRUNDSTRUKTUREN DES RECHTS ÖFFENTLICHER DIENSTLEISTUNGEN 426 (2011)). 54 Case C-437/09 AG2R, ECLI:EU:C:2011:112, para 77. 55 Id., at para 80. 56 Case C-1/12 Ordem dos Técnicos Oficiais de Contas, ECLI:EU:C:2013:127, para 107. 57 Case T-289/03 BUPA, ECLI:EU:T:2008:29, para 131 et seq. 58 Case C-157/94 Commission v Netherlands, ECLI:EU:C:1997:499, para 58; Case C-158/94 Commission v Italy, ECLI:EU:C:1997:500, para 54; Case C-159/94 Commission v France, ECLI:EU:C:1997:501, para 101 et seq. 59 Case C-203/96 Dusseldorp, ECLI:EU:C:1998:316, para 67. 60 Case C-209/98 Sydhavnens, ECLI:EU:C:2000:279, para 80.