Abstract
In this concluding chapter, it will be examined to what extent the update of the Monti-Kroes package has shed more light on the relationship between the Treaty provisions on State aid and Services of General Economic Interest. It will be argued that the Commission has succeeded to make considerable progress in its update and modernisation of the ‘Altmark-Monti-Kroes Package’. Although a couple of issues remain to be settled, it is apparent from the analysis carried out in the present volume that many other problems are solved. By so doing, the Commission has contributed to the development of the EU approach to SGEI. Although the EU edifice for SGEI is far from finished, some important bricks of this building are identified in the updated ‘Altmark-Monti-Kroes package’. Competition and principles of good governance should play a key role. If these values are not satisfactorily adhered to by the Member States, the Commission is likely not to approve their measures to finance particular SGEI. As a result, the updated ‘Altmark-Monti-Kroes Package’ should be regarded as an important development, which could, eventually, lead to convergence of the national policies for the provision of SGEI.
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Notes
- 1.
CJEU, Case C-280/00 Altmark [2003] ECR I-7747.
- 2.
See the Community framework of the Commission for State aid in the form of public service compensation, OJ 2005 C 297/4; the Commission Decision on the application of Article 86(2) of the EC Treaty to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest, OJ 2005 L312/67 and.
- 3.
See e.g. Case T-289/03 British United Provident Association [2008] ECR II-81.
- 4.
OJ 2012 C8/4.
- 5.
OJ 2012 L7/3.
- 6.
OJ 2012 C8/15.
- 7.
OJ 2012 L114/8.
- 8.
IP/11/1571.
- 9.
See Sect. 5.1.2.2.
- 10.
Cf. also Krajewski 2008, p. 392.
- 11.
Cf. also Van de Gronden and Rusu 2012, pp. 431 and 432.
- 12.
The EU Framework sets out a comprehensible test for calculating the costs and the reasonable profit. See paras 21–59.
- 13.
Sinnaeve 2012, p. 357.
- 14.
For a wider discussion and a contextual approach to the use of safe havens for SSGI see Szyszczak 2012b.
- 15.
Costamanga 2012, p. 397.
- 16.
Commission Regulation 998/2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid, OJ 2006 L379/5.
- 17.
This provision requires that the act of entrustment specifies the content and duration of the SGEI concerned, the undertaking to which the special task is assigned, the nature of any exclusive or special rights granted to this undertaking, a description of the compensation mechanism and the arrangements made for tackling problems of overcompensation. Furthermore, the act should even make a reference to the 2011 Decision.
- 18.
See Article 4 of the 2011 Commission Decision.
- 19.
See paras 15–17 of the EU Framework.
- 20.
GC, Case T-289/03 British United Provident Association [2008] ECR II-81.
- 21.
CJEU, Case C-437/09, AG2R Prévoyance v. Beaudout Père et Fils SARL, judgment of 3 March 2011 (n.y.r.).
- 22.
See also Sauter 2012, p. 313. He even argues that the emphasis on the entrustment act that runs as a red thread through the updated Monti-Kroes package stands in stark contrast with the own decisional practice of the Commission. In some cases, the Commission itself has derived SGEI missions from general obligations of national law. See e.g. the decision of the Commission of 22 December 2005 on the introduction of a risk equalisation system in the Dutch Health Insurance, N541/2004 and N542/2004 – C (2005) 1329 fin.
- 23.
Karayigit 2009, p. 563.
- 24.
Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, OJ 2004 L134/114.
- 25.
Cf. in this regard Fiedziuk 2010, pp. 277–279.
- 26.
Bartosch 2007, p. 570.
- 27.
Many social security schemes, especially the statutory schemes, however, do not amount to economic activities and are, accordingly, immune from EU State aid law for that reason.
- 28.
See para 39 of the EU Framework.
- 29.
In this regard it should be noted that in the BUPA case (supra n 20) the GC decided that public services obligations are identical to SGEI.
- 30.
See para 48 of the Commission Communication.
- 31.
See e.g. CJEU, Case C-157/94 Commission v. The Netherlands [1997] ECR I-5699.
- 32.
- 33.
See the Communication of 8 May 2012 from the Commission, EU State Aid Modernisation, COM(2012) 209 final, p. 3.
- 34.
In this respect Klasse refers to the Commission Decision of 3 May 2005, State aid N 382/2004, Broadband Infrastructure Project Limousin (Dorsal).
- 35.
Kamaris 2012, p. 59.
- 36.
In this regard, it should be noted that Koenig and Paul have rightly pointed out that deficit funding of public hospital does not fall within the ambit of the exemption of the Commission Decision, as such funding is not based on efficiency standards. See Koenig and Paul 2010, pp. 769 and 770.
- 37.
See para 14 EU Framework.
- 38.
Pursuant to Article 3 (3) TEU one of the aims of the EU is to realise such an economic order. See Szyszczak 2012a.
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van de Gronden, J.W. (2013). Conclusion. In: Szyszczak, E., van de Gronden, J. (eds) Financing Services of General Economic Interest. Legal Issues of Services of General Interest. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-906-1_13
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