Page - 13 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 Article 106 (2) TFEU in Case Law 13 date, at least a periodic re-examination, at close intervals, of the need to intervene and also the terms and level of intervention is to be scheduled.65 Second, the measure must be limited rationae personae.66 It must be assessed in how far a measure benefits different kinds of customers in the same way, e.g. consumers and undertakings, and whether it is really necessary that all these people are beneficiaries to achieve the envisaged objective. Hence, one has to take into account that the situation of large companies as final customers is (usually) different from that of small households, in so far as they have different needs and negotiation powers and are also dealt with differently in secondary law. Third, the scope of the intervention ratione materiae has to be checked. In essence, the measure must be limited to that price component or aspect, which requires intervention instead of broadly regulating all aspects.67 As can be seen, the CJEU applies a full and detailed proportionality test in the context of sectoral legislation. (b) Public service compensations that do not comply with the Altmark criteria but meet the general conditions for the applicability of Article 107 TFEU68, constitute State aid and are subject to the respective rules.69 Article 106 (2) TFEU allows for a derogation from the prohibition of State aid if the performance of the task(s) in question would be obstructed without State aid. In order to assist with this assessment, the Commission took legislative action in the form of a 2011 SGEI Decision and a 2011 SGEI Framework as part of the so-called ‘Almunia package’.70 Both, the 2011 SGEI Decision and Framework, specify the ‘meaning and extent of the exception pursuant to Article 106 (2) TFEU and set out rules intended to enable effective monitoring of the fulfilment of the criteria set out in that provision’71 with regard to State aid. While the Decision applies to certain types of public service compensations exempting them from the requirement of prior notification under Article 108 (3) TFEU, the Framework contains rules for the remaining public service obligations, which have to be notified to the Commission. In view of the competence of the Commission to assess the compatibility of a State measure in the context of Article 106 (2) TFEU (or, at least, to control the assessment of the Member States within the scope of the 2011 SGEI Decision) and the detailed nature of the 2011 SGEI Decision and Framework, it is no surprise that the balancing test is regularly performed by reference to the conditions stipulated therein. In other words, whenever 65 Case C-265/08 Federutility, ECLI:EU:C:2010:205, para 35; Case C-121/15 ANODE, ECLI:EU:C:2016:637, para 62. 66 Case C-121/15 ANODE, ECLI:EU:C:2016:637, para 67 et seq. 67 Id. at para 64 et seq. 68 (1) Any aid (2) granted through State resources in any form whatsoever if it (3) distorts or threatens to distort competition (4) by favouring certain undertakings or the production of certain goods (5) in so far as it affects trade between Member States. For details see Case C-142/87 Belgium v Commission, ECLI:EU:C:1990:125, para 25 et seq; Case C-482/99 France v Commission – Stardust Marine, ECLI:EU:C:2002:294, para 32 et seq; Case C-280/00 Altmark Trans, ECLI:EU:C:2003:415, para 74 et seq. See also the Commission Notice on the notion of State aid, OJ 2016 C 262/1. 69 For example Case T-106/95 FFSA v Commission, ECLI:EU:T:1997:23, para 165; Case T-46/97 SIC v Commission, ECLI:EU:T:2000:123, para 83. 70 2011 SGEI Decision: Commission Decision of 20 December 2011 on the application of Article 106 (2) of the TFEU to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of SGEI, OJ 2012 L 7/3; 2011 SGEI Framework: Communication from the Commission, EU framework for State aid in the form of public service compensation, OJ 2012 C 8/15; and 2011 SGEI Communication: Communication from the Commission on the application of the European Union State aid rules to compensation granted for the provision of SGEI, OJ 2012 C 8/4; as well as a De minimis Regulation: Commission Regulation on the application of Articles 107 and 108 TFEU to de minimis aid granted to undertakings providing SGEI, OJ 2012 L 114/8. 71 2011 Commission Decision, recital 7. See also 2011 SGEI Framework, para 7.