Page - 17 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 Article 106 (2) TFEU in Case Law 17 public services. It is applied and construed by the CJEU and the Commission in a way that internalizes the conflicting interests as much as possible. As regards the balancing of conflicting interests itself, this paper exposes two shifts in balance: On the one hand, with the assistance of the CJEU and the Commission, the EU emerged as the key player in the law of SGEI. It no longer cedes control of SGEI to its Member States, but confidently shapes the rules and principles that regulate this politically sensitive area of law. Interestingly, in the context of Article 106 (2) TFEU, this shift of balance in favour of EU-shaped public services results from a broad scope of application and the possibility to control what Member States declare as SGEI. Even though the CJEU and Commission nominally decide neither on the amount or nature of state support, nor on the provision of SGEI, they shape the provision, commission and organization of such services to a considerable extent as controlling instances.87 On the other hand, the application of Article 106 (2) TFEU shows an EU preference for a market- oriented approach, however without entailing a strict primacy of market values or interests.88 Despite the unwavering preference of the EU for competition – whether it is competition in the market or competition for the market – as an instrument to ensure the well-being of its citizens,89 the possibility of a ‘customized derogation’ from competition law also recognises the intrinsic value of a proper functioning of SGI. Apparently – in the context of Article 106 (2) TFEU – the EU found a way to reconcile an ‘open and competitive internal market’ and the development of ‘high quality, accessible and affordable services of general interest’ as envisaged by the 2004 White Paper.90 In total, it seems as if the CJEU and the Commission have shaped a workable system in the context of Article 106 (2) TFEU that reconciles market and welfare interests in favour of functioning public services – as long as its premises and limits are respected. These limits along with the application of Article 106 (2) TFEU in consideration of its different elements and their specific role in this system will certainly pose further challenges for the CJEU and the Commission as the EU law on SGEI is developed and expanded. Increasing control of the EU as the key player in the law of SGEI comes with the necessity to use this power responsibly. In particular, regional and cultural particularities must be given due consideration by the CJEU and the Commission. Also, it is crucial to ensure that increasingly detailed specifications for an SGEI derogation are not ultimately misused in order to promote other EU principles and instruments, such as efficiency and public procurement, which are not objectionable as such91, but might in the context of SGEI ultimately forestall a high level of quality of such services.92 87 Malcolm Ross, The Europeanization of Public Services Supervision: Harnessing Competition and Citizenship?, 23 Yearbook of European Law 303, 304 (2004). 88 Equally, Stéphane Rodrigues, Les services publics et le traité d'Amsterdam, Revue du marché commun et de l'Union européenne 37, 38 (1998); Frenz, supra note 35, at 917; Baquero Cruz, supra note 53, at 211. 89 Hence, the EU approach to SGEI might be summarized as ‘public service through competition’ (Christian König, Daseinsvorsorge durch Wettbewerb!, EuZW 481, 481 (2001). 90 Commission, White Paper on services of general interest, COM (2004) 374, 7. Already in 2000, the Commission stated that SGEI, the internal market and competition policy complemented each other in the pursuit of the fundamental objectives of the treaties (COM (2000) 580 para 3). 91 Cf the explanation given by Commissioner Almunia, who refers to the necessity to take into account the decreasing public budgets in the Member State as a consequence of the financial crisis, SPEECH/11/618, SGEI reform: Presenting the draft legislation, 30.09.2011. 92 In the context of the Altmark criteria, Renzulli even describes the principle of efficiency as ‘the price and […] key to exempting public service compensatory measures from classification as a State aid’, Annalisa Renzulli, Services of General Economic Interest: The Post-Altmark Scenario, 14 EPL 399, 399 (2008). See also Erika Szyszczak, Financing Services of General Economic Interest, 67 MLR 982, 990-992 (2004).