Interim Conclusion on SGEIs

Generally it appears that the Court’s approach to SGEIs has become less stringent in recent years. This might be connected to the fact that the Court seems to have been stricter regarding the question whether a situation falls under a certain EU law provision (i.e. whether an entity is an undertaking) in the first place. If EU law is more frequently held to be applicable, the exemption becomes more relevant and needs to be interpreted less strictly to allow, at least, a certain balance between economic and public interests. However, this field of law is still developing, so changes in this respect might occur.[1] In addition, despite this potential leniency (at least in areas of primary responsibility), the fact that a particular SGEI needs to be entrusted to an undertaking makes this exemption much more limited than the broad possibility of exemption on public interest considerations in the area of free movement law[2] and, as will be seen below (Sects. 3.3.2-3.3.5), the individual provisions mainly contain efficiency based exemptions. Therefore, there is a real potential for public services to fall under the competition provision if they are regarded as economic activity.

  • [1] See Neergaard 2009b, p. 223 seq; Neergaard 2011, pp. 184, 194 seq; Sauter 2015, p. 155.
  • [2] Szyszczak 2016 (forthcoming).
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