Page - 12 - in Austrian Law Journal, Volume 1/2019

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.