European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

Since the Altmark decision , sums paid by a Member State to an undertaking entrusted with the operation of a service of general economic interest [SGEIs] to compensate for the additional costs of obligations arising from it do not constitute State aid. Where one of the conditions required by the Altmark decision is missing, the application of the competition rules laid down in Article 107 TFEU mus …

Scope

Since the Altmark decision , sums paid by a Member State to an undertaking entrusted with the operation of a service of general economic interest [SGEIs] to compensate for the additional costs of obligations arising from it do not constitute State aid. Where one of the conditions required by the Altmark decision is missing, the application of the competition rules laid down in Article 107 TFEU must not however constitute an obstacle to the performance of particular tasks of undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly, within the meaning of Article 106(2) TFEU . In effect, the Altmark conditions, of which the sole purpose is the classification of the measure in question as State aid, must be distinguished from the conditions of application of Article 106(2) TFEU, the purpose of which is to determine the compatibility of the aid with the internal market .  In other words, verification of the conditions laid down in the Altmark case-law, which occurs upstream, must be resolved first i.e. before the examination of the issue of whether the incompatible aid is nevertheless necessary to the performance of the tasks assigned to the recipient of the measure at issue under Article 106(2) TFEU . The conditions laid down in the Altmark case-law are therefore no longer to be applied where the Commission, having found that a measure must be characterized as aid, in particular insofar as the recipient undertaking is unable to pass the test of comparison with a typical, well run and adequately equipped undertaking so as to be able to meet the necessary public-service requirements, examines whether that aid can be justified under Article 106(2) TFEU . 

Pursuant to Article 106(2), the undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly are subject to the competition rules, in so far as the application of such rules does not obstruct the performance, in law or in fact, of their tasks. A State aid to compensate for the costs incurred by an undertaking for the provision of a service of general economic interest is, according to the Commission, compatible with the internal market, in accordance with Article 106 TFEU, where the public service in question is clearly defined as a service of general economic interest  by the Member State, the undertaking is officially entrusted with the provision of that service and the State funding does not exceed the net cost of the public service taking into account other direct or indirect revenues derived from that public service . The costs  to be taken into account are the actual costs of the service of general economic interest such that they are, and not as they could have been or ought to be, on the basis of objective and transparent calculation criteria, founded on the example of a typical undertaking which is well run and adequately equipped as is required for the application of the proportionality criteria in the context of the Altmark ruling . Furthermore, according to the General Court, although the assessment of the existence of a market failure constitutes a prerequisite to the classification as an SGEI and consequently to the finding of no State aid , evidence of such failure is not an essential condition for declaring State aid compatible with the internal market . The assessment is carried out at the time the SGEI is initiated and must include a prospective analysis of the market situation for the whole duration of the application of the SGEI, during which the market deficiency must also be verified . In addition, the margin of assessment for the Member States to set up their SGEIs cannot be carried out in a manner that gives rise to a violation of the principle of equal treatment . Lastly, the advantage must be necessary for the operation of the SGEI. The fact that the sale of a branch of undertaking relates to assets intended to ensure the continuity of a maritime service, which constitutes an SGEI, is not sufficient to consider that any tax advantage, and in particular the advantage relating to the payment of a fixed amount in respect of registration duties, would be necessary for the operation of the SGEI, within the meaning of Article 106(2) TFEU .

Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747, LawLex200500004593JBJ.

Case 78/76 Steinike & Weinlig [1977] ECR 595, LawLex200400002811JBJ.

Case T-258/10 Orange v Commission, Judgment of 16 September 2013, not available in English.

Case T-487/13 Navarra de Servicios y Tecnologías (SA), Judgment of 26 November 2015, not available in English, on the non-compliance with the principle of neutrality in the context of a system of aid for the deployment of digital terrestrial television.

Case T-666/21 Società Navigazione Siciliana SCpA, Judgment of 25 January 2023, not available in English.

Case T-125/12 Viasat Broadcasting UK Ltd Judgment of 24 September 2015, LawLex201500001142JBJ.

CaseC-660/15 P Viasat Broadcasting UK Ltd, Judgment of  8 March 2017, LawLex201700000450JBJ.

Case C-660/15 P Viasat Broadcasting UK Ltd, cited above.

Case T-642/19 JCDecaux Street Furniture Belgium v. Commission, Judgment of 7 September 2022, LawLex202300002468JBJ, which excludes the classification as a service of general interest (SGEI) for the installation and operation of street furniture under a purely commercial contract, where it has not been established that they have been defined by the public authorities as an SGEI.

Commission Decision No 2004/339/EC of 15 October 2003, Measures implemented by Italy for RAI SpA, LawLex200500004541JBJ.

Case T-79/10 Colt Télécommunications France v Commission, Judgment of 16 September 2013, not available in English.Case 

Case T-92/11 Jørgen Andersen, Judgment of 18 January 2017, LawLex201700000121JBJ.

European Competition Law

421. Scope

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

421. Scope

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise