Service of General Economic Interest, SIEG, competition rules, derogation, Court of Justice, public service, Treaty of Rome, Article 90, exclusive rights, public service obligations
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Abstract
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Abstract
The Court of Justice justifies limitations to competition rules for companies managing a Service of General Economic Interest (SIEG), ensuring a balance between competition and public service necessities.
Extract
[...] However, a condition is set. The dissociable activities of the public service that do not contribute to the economic balance, namely 'the specific services which respond to the particular needs of economic operators and which require certain additional performances that the postal service does not offer' are entirely subject to the same rules as other participants, the administration being then only an ordinary operator. By this judgment, the Court of Justice seems to recognize the possible derogation from the rules of competition by companies managing a service of general economic interest This derogation, certainly necessary, is however conditional (II). [...]
[...] It also follows from Article 90-I that States may create monopolies without enacting or maintaining competition rules. La limitation justified to the rules of competition According to the Court, the management of a service of general interest and the criterion of general interest attached to it justify the derogations from the rules of competition. This specifies that Article 90, paragraph II of the Treaty of Rome 'allows Member States to confer exclusive rights to enterprises they entrust with the management of SIEG, which may hinder the application of Community competition rules if restrictions on competition or exclusion of competition are necessary to ensure the accomplishment of the particular mission entrusted to the holders of these exclusive rights'. [...]
[...] Similarly, the obligation for HLM organizations to deposit their funds with the Treasury 'finds its justification in the fulfillment of their mission' (ECJ April 1992, National Union). The Constitutional Council also admits that the law may have conferred a quasi-monopoly of preventive archaeological research on a public establishment, as a counterpart to the heavy public service constraints imposed on it (Constitutional Council January 2001). It is therefore a new balance that must be found between public service obligations and rights conferred within the framework of a competitive administrative law that is still being constructed, with, incidentally, certain possible modulations. [...]
[...] By this requirement, the Court of Justice implicitly recognizes that the service of general interest takes precedence over the specific service when the offer of the latter compromises the balance of the other by diverting a significant portion of its clientele. In a second place, the Court had previously been able to retain that the service of general economic interest must be able to actually fulfill its mission: after all, how can one claim a derogation from the competition rules if the service is not functioning well? (CJCE April 1991, Höfner). If these two conditions are met, the monopoly is limited, which justifies the opening to competition. [...]
[...] ) in the quantities requested at any time' and at uniform tariffs for the most part (ECJ April 1994, Municipality of Almelo). The derogations from the competition rules by the companies managing a SIEG are certainly admitted, but also proportionate II- The derogation from the competition rules by the companies managing a service of general economic interest proportionate The Court of Justice sets the conditions to limit the power of derogation from the competition rules This proportionality is taken up by French law The conditions for derogation Case-law conditions are laid down justifying the derogation from the competition rules by the companies managing an SGEI. [...]
