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2020 | OriginalPaper | Buchkapitel

7. Service of General Economic Interest in Transport

verfasst von : Lei Zhu

Erschienen in: Services of General Economic Interest in EU Competition Law

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Abstract

Service of general economic interest (SGEI) in the transport sector has been developed under the notion of public service obligation (PSO) within the framework of Common Transport Policy. This chapter explores the treatment of SGEIs in the transport sector. It begins with PSO in air transport, where the pursuit of regional economic development has been recognised as a valid SGEI objective and the public tendering procedure must be used. The second part of this chapter discusses PSO in inland transport, where Member States still enjoy much freedom and have been granted derogation from the public tendering procedure. It further studies PSO in the maritime transport sector, where transport links to islands have been regarded as valid SGEIs by the EU. The analysis shows that the concern of the EU is to ensure state intervention is competition neutral.

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Vorheriges Kapitel Services of General Economic Interest in the Postal Sector

Nächstes Kapitel Conclusions

Greaves 2000, pp. 1–2.

The Treaty itself made explicit derogation for the transport sector from the application of free movement and state aid rules. The Council also declared that Articles 101 and 102 did not apply to the transport sector: Title VI on Transport, TFEU; Regulation No 141 of the Council exempting transport from the application of Council Regulation No 17 [1962] OJ L124/2751.

Kawagoe 2008.

This was exactly the case in Member States such as Greece, Italy, France, Spain and Portugal: Brooks (2009).

65/271/EEC: Council Decision of 13 May 1965 on the harmonisation of certain provisions affecting competition in transport by rail, road and inland waterway [1965] OJ 88/1500.

Case 13/83 European Parliament v Council of the European Communities [1985] ECR-1513.

Three packages of EU legislation were adopted between 1987 and 1992 to introduce competition and market integration in the air transport sector gradually.

(1)

The first package was adopted in 1987, including:

(a)

Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector [1987] OJ L374/1;

(b)

Council Regulation (EEC) No 3976/87 of 14 December 1987 on the application of Article 85 (3) of the Treaty to certain categories of agreements and concerted practices in the air transport sector [1987] OJ L374/9;

(c)

Council Directive 87/601/EEC of 14 December 1987 on fares for scheduled air services between Member States; and

(d)

87/602/EEC: Council Decision of 14 December 1987 on the sharing of passenger capacity between air carriers on scheduled air services between Member States and on access for air carriers to scheduled air-service routes between Member States [1987] OJ L374/19.

(2)

The second package was adopted in 1990, including:

(a)

Council Regulation (EEC) No 2342/90 of 24 July 1990 on fares for scheduled air services [1990] OJ L217/1;

(b)

Council Regulation (EEC) No 2343/90 of 24 July 1990 on access for air carriers to scheduled intra-Community air service routes and on the sharing of passenger capacity between air carriers on scheduled air services between Member States [1990] OJ L217/8;

(c)

Council Regulation (EEC) No 2344/90 of 24 July 1990 amending Regulation (EEC) No 3976/87 on the application of Article 85 (3) of the Treaty to certain categories of agreements and concerted practices in the air transport sector [1990] OJ L217/15.

(3)

The third package was adopted in 1992, including:

(a)

Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers [1992] OJ L240/1;

(b)

Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes [1992] OJ L240/8;

(c)

Council Regulation (EEC) No 2409/92 of 23 July 1992 on fares and rates for air services [1992] OJ L240/15.

Rules in the third package were consolidated into Regulation 1008/2008. Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (Recast) [2008] OJ L293/3.

The main legislation for liberalisation and market integration in the maritime sector is Regulation 3577/92. It granted exemptions for certain Member States and therefore introduced liberalisation gradually: Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) [1992] OJ L364/7.

EU legislation is adopted on the basis of different modes and areas of inland transport.

(1)

For carriage of goods by road, market liberalisation and integration was introduced by Regulation 881/92 in 1992, which was replaced by Regulation 1072/2009.

Council Regulation (EEC) No 881/92 of 26 March 1992 on access to the market in the carriage of goods by road within the Community to or from the territory of a Member State or passing across the territory of one or more Member States [1992] OJ L95/1;

Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market [2009] OJ L300/72.

(2)

For carriage of passengers by road, market liberalisation and integration was introduced by Regulation 684/92 and Regulation 12/98, which were replaced by Regulation 1073/2009.

Council Regulation (EEC) No 684/92 of 16 March 1992 on common rules for the international carriage of passengers by coach and bus [1992] OJ L74/1;

Council Regulation (EC) No 12/98 of 11 December 1997 laying down the conditions under which non-resident carriers may operate national road passenger transport services within a Member State [1992] OJ L74/10;

Regulation (EC) No 1073/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international market for coach and bus services, and amending Regulation (EC) No 561/2006 [2009] OJ L300/88.

(3)

For inland water transport, market liberalisation and integration was introduced by Regulation 1356/96.

Council Regulation (EC) No 1356/96 of 8 July 1996 on common rules applicable to the transport of goods or passengers by inland waterway between Member States with a view to establishing freedom to provide such transport services [1996] OJ L175/7.

For railway transport sector, market liberalisation and integration was much delayed. The first Directive 91/440 on market access was adopted in 1991. Market access has been one of the subjects in the following three packages of EU rules for internal railway market, adopted in 2001, 2004 and 2007. The latest (fourth) package has been proposed by the Commission and is still in the legislative process. For a list of railway legislation, see the Commission’s website:

http://ec.europa.eu/transport/modes/rail/packages/index_en.htm accessed 9 October 2014.

Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways [1991] OJ L237/25.

Regulation (EEC) No 1191/69 of the Council of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway [1969] OJ L156/1.

Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 [2007] OJ L315/1.

Article 84, EEC Treaty. Since the adoption of the EC Treaty, it has been subjected to the normal legislative procedure, which requires only a qualified majority: Article 80 EC Treaty and Article 100 TFEU.

Regulation No 141 of the Council exempting transport from the application of Council Regulation No 17 [1962] OJ L124/2751.

Commission of the European Communities, Civil Aviation Memorandum No. 2: Progress towards the Development of a Community Air Transport Policy, COM (84) 72 final, 15.03.1984, Annex II, para 2.

Ibid.

Kawagoe 2008.

Ibid., p. 161.

Commission of European Communities, European Experience of Air Transport Liberalisation.

http://www.icao.int/sustainability/CaseStudies/StatesReplies/EuropeLiberalization_En.pdf accessed 9 October 2014, para 3.1.

The case was concerned with the organisation of the air transport sector in France. The French air transport sector had been subjected to tight state control: both access to the market and ticket tariffs were subject to compulsory ministerial approval. In the main proceedings, the defendant was accused of selling tickets at a price different from the approved one, which was punishable by criminal penalties under French law. The case was referred to the Court for a preliminary ruling, asking whether the air transport sector was subject to competition law and, if so, whether such French regime was compatible with these rules: Joined Cases 209 to 213/84 Criminal proceedings against Lucas Asjes and others, Andrew Gray and others, Andrew Gray and others, Jacques Maillot and others and Léo Ludwig and others [1986] ECR-1425.

It is quite interesting to note the disagreements between the Member States. On the one hand, Britain together with the Commission took a more pro-competition approach. They argued that Title IV of the Treaty on the Common Transport Policy did not render air transport beyond the reach of competition law. On the other hand, France and Italy took the opposite stance. Therefore, the interpretation of the Treaty by the Court was crucial in this debate.

The reason for that lies in the lack of express exclusion from competition law by the Treaty for the transport sector. The Court ruled that:

It should also be noted that where the Treaty intended to remove certain activities from the ambit of the competition rules, it made an express derogation to that effect. […] As regards transport there is no provision in the Treaty which excludes the application of the competition rules or makes it subject to a decision by the Council.

Joined Cases 209 to 213/84 Criminal proceedings against Lucas Asjes and others, Andrew Gray and others, Andrew Gray and others, Jacques Maillot and others and Léo Ludwig and others [1986] ECR-1425, para 40.

The significance of the Judgment itself is limited; it has not been cited by the Court in later cases. The reason lies in the fact that the questions were not properly formulated by the French court: Rodger 2008, p. 179.

Case C-41/90 Klaus Höfner and Fritz Elser v Macrotron GmbH [1991] ECR I-1979; Case C-260/89 Elliniki Radiophonia Tileorassi AE (Ert) (Panellinia Omospondia Syllogon Prossopikou Ert intervening) v Dimotiki Étairia Pliroforissis (Dep) and Sotirios Kouvelas (Nicolaos Avdellas and Others intervening) [1991] ECR I-02925; Case C-260/89 Elliniki Radiophonia Tileorassi AE (Ert) (Panellinia Omospondia Syllogon Prossopikou Ert intervening) v Dimotiki Étairia Pliroforissis (Dep) and Sotirios Kouvelas (Nicolaos Avdellas and Others intervening) [1991] ECR I-02925; Case C-179/90 Merci Convenzionali Porto di Genova SpA v Siderurgica Gabrielli SpA [1991] ECR I-05889. This issue has been discussed in Sect. 3.2 of Chap. 3.

Three packages of EU legislation were adopted between 1987 and 1992 to introduce competition and market integration in the air transport sector gradually.

(1)

The first package was adopted in 1987, including:

(a)

Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector [1987] OJ L374/1;

(b)

(c)

Council Directive 87/601/EEC of 14 December 1987 on fares for scheduled air services between Member States; and

(d)

(2)

The second package was adopted in 1990, including:

(a)

Council Regulation (EEC) No 2342/90 of 24 July 1990 on fares for scheduled air services [1990] OJ L217/1;

(b)

(c)

Council Regulation (EEC) No 2344/90 of 24 July 1990 amending Regulation (EEC) No 3976/87 on the application of Article 85 (3) of the treaty to certain categories of agreements and concerted practices in the air transport sector [1990] OJ L217/15.

(3)

The third package was adopted in 1992, including:

(a)

Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers [1992] OJ L240/1;

(b)

Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes [1992] OJ L240/8;

(c)

Council Regulation (EEC) No 2409/92 of 23 July 1992 on fares and rates for air services [1992] OJ L240/15.

Rules in the third package were consolidated into one Regulation 1008/2008 in 2008. Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (Recast) [2008] OJ L293/3. Dempsey 1992.

Commission of the European Communities, European Civil Aviation Handbook: Part I. Regulations and Directives:

http://ec.europa.eu/transport/modes/air/internal_market/handbook/part1_en.htm accessed 9 October 2014.

Council Directive 87/601/EEC of 14 December 1987 on fares for scheduled air services between Member States [1987] OJ L374/12.

Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector [1987] OJ L374/1.

Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes [1992] OJ L240/8.

Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community [2008] OJ L293/3.

It is very interesting to note that Article 5 on PSOs is titled as ‘relations between a Member State and carriers of other Member States’. Council Regulation (EEC) No 2343/90 of 24 July 1990 on access for air carriers to scheduled intra-Community air service routes and on the sharing of passenger capacity between air carriers on scheduled air services between Member States [1990] OJ L217/8.

Under the previous monopoly structure, national air transport network covering these regions was maintained through cross-subsidy from profitable routes to unprofitable ones.

Williams and Pagliari 2004.

Commission of the European Communities, Completion of the Civil Aviation Policy in the European Communities towards Single Market Conditions, COM (1991) 275 final, 18.09.1991, p. 3.

Ibid.

Ibid., p. 2.

Williams 2005.

Graham 1998.

This is also true in the energy sector, where PSOs cover a wide range of public interests such as security of supply and environmental protection: Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC [2009] OJ L211/55, Article 3(2); Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC [2009] OJ L211/94, Article 3(2).

Williams 2005.

This approach could also be observed in the Regulation 2408/92, where the term public interest is used to allow Member States to assess its needs to impose PSOs: Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes [1992] OJ L240/8, Article 4(1).

Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community [2008] OJ L293/3, Article 16.

Williams and Pagliari 2004; Reynolds-Feighan suggests that the EU should adopt a centralised administrative system where PSO air links would be decided and funded at the EU level: Reynolds-Feighan 1995.

Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community [2008] OJ L293/3.

With no extra conditions or constraints; this procedure is compulsory.

Cranfield University 2007.

A Community air carrier is an air operator that holds a valid operating licence that is granted by any Member State. See Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community [2008] OJ L293/3, Article 2.

Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community [2008] OJ L293/3, Article 16(8).

In the Commission Decision 2007/332, the Italian authority imposed a deadline for the acceptance of the PSOs, within 30 days. The Commission concluded that this practice was unduly restrictive and disproportionate: 2007/332/EC: Commission Decision of 23 April 2007 on public service obligations on certain routes to and from Sardinia under Article 4 of Council Regulation (EEC) No 2408/92 on access for Community air carriers to intra-Community air routes [2007] OJ L125/16.

These requirements are obligatory in the sense that any carrier operating on that route must reach that level of service as decided by the public authorities.

Case C-205/99 Asociación Profesional de Empresas Navieras de Líneas Regulares (Analir) and Others v Administración General del Estado [2001] ECR I-1271, para 64.

Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community [2008] OJ L293/3, Article 16(1).

This could also be observed from the very broad term ‘public interest’ used as a criterion for the decision of PSOs by Member States.

Commission of the European Communities, Proposal for a Council Regulation (EEC) on access for air carriers to scheduled intra-Community air service routes and on the sharing of passenger capacity between air carriers on scheduled air services between Member States, COM (89) 373 final, 11.10.1989; Commission of the European Communities, Amendment to the proposal for a Regulation on access for air carriers to scheduled intra-Community air service routes and on the sharing of passenger capacity between air carriers on scheduled air services between Member States, COM (90) 234 final, 05.07.1990.

Both Regulations provide several exceptions that Member States could use to avoid the introduction of competition. This also creates problems in their interpretation. The latest example is found in case 181/00: Case C-181/00 Flightline Ltd v Secretário de Estado dos Transportes e Comunicações and Transportes Aéreos Portugueses SA (TAP) [2002] ECR I-6139.

This is very different from the approach as in the telecommunications sector, where the Commission was dominant in the legislative process under Article 106(3). See Sect. 5.3 of Chap. 5.

Commission of the European Communities, Completion of the Civil Aviation Policy in the European Communities towards Single Market Conditions, COM (1991) 275 final, 18.09.1991, p. 13.

Reynolds-Feighan 1995.

Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community [2008] OJ L293/3.

Commission of the European Communities, Guidelines on the application of Articles 92 and 93 of the EC Treaty and Article 61 of the EEA Agreement to state aids in the aviation sector [1994] OJ C350/5, para 18.

Commission of the European Communities, Commission Decision of 20 December 2011 on the application of Article 106(2) of the Treaty on the Functioning of the European Union to state aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest [2012] OJ L7/3, Article 2(4).

2005/351/EC: Commission Decision of 20 October 2004 concerning the aid scheme implemented by the Kingdom of Spain for the airline Intermediación Aérea SL [2005] OJ L110/56 (hereafter the Intermed Decision).

In the Corbeau case, the Court established that for the SGEI derogation to apply, three conditions must be met: (1) there must be a clearly defined SGEI task; (2) the SGEI task must have been entrusted by public authorities; (3) a necessity test must be satisfied. In the context of state aid law, the essential requirement under the necessity test is that the amount of SGEI funding does not exceed the costs of SGEI provision: Case C-320/91 Paul Corbeau [1993] ECR I-2533.

And compliance with that Regulation presumes the non-existence of financial advantages. The procedure used by Spanish government was found to be flawed in several aspects. It did not inform the Commission of the imposition of the PSOs, nor did it consult other Member States. In addition, neither the content of the PSOs nor the invitation to tender was published in the Official Journal of the EU.

The Intermed Decision, paras 64–65.

The Intermed Decision, paras 66–69.

It is only after a state measure is regarded as state aid that the issue of compatibility will arise: whether it could be justified under Article 106(2). The Altmark criteria decide whether a state measure is a state aid; by contrast, SGEI derogation under Article 106(2) determines whether a state aid measure can be justified. For the interplay between EU state aid law and SGEI, see Chap. 4.

The Commission has applied less strict criteria in applying the necessity test in the postal service sector. In its State Aid Decision NN 135/92 concerning a French tax concession to La Poste, the Commission decided the State Aid could be justified under Article 106(2) because it was less than the additional cost of PSOs: Commission of the European Communities, State Aid NN 135/92 France [1995] OJ C 262/11, 14.

The Intermed Decision, para 97.

Ibid., paras 98–99.

2007/332/EC: Commission Decision of 23 April 2007 on public service obligations on certain routes to and from Sardinia under Article 4 of Council Regulation (EEC) No 2408/92 on access for Community air carriers to intra-Community air routes [2007] OJ L125/16.

The Intermed Decision, para 55.

Gwilliam and Van De Velde 1990; Commission of the European Communities, Revised Proposal for a Regulation of the European Parliament and of the Council on Public Passenger Transport Services by Rail and by Road, COM (2005) 319 final, 20.07.2005, p. 3.

The latest Regulation on cabotage passenger transport provides that ‘cabotage operations shall be authorised for with the exception of regular service meeting the needs of an urban centre or conurbation, or transport needs between it and the surrounding areas’: Regulation (EC) No 1073/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international market for coach and bus services, and amending Regulation (EC) No 561/2006 [2009] OJ L300/88, Article 15(c).

Costa and Fernandes 2012.

Amaral 2008.

Office for National Statistics, ‘Social Trends’ (No. 40, 2010 edition):

http://www.ons.gov.uk/ons/rel/social-trends-rd/social-trends/social-trends-40/social-trends-40-full-report.pdf.

Hidson and Müller 2003.

Isotope 1997.

Commission of the European Communities, The Citizens’ Network—Fulfilling the Potential of Public Passenger Transport in Europe (European Commission Green Paper), COM (95) 601 final, 29.11.1995 (hereafter 1995 Citizens’ Network Green Paper).

Costa and Fernandes 2012.

For a detailed discussion, see Van De Velde 1999.

Karlaftis and McCarthy 1998.

1995 Citizens’ Network Green Paper.

Ibid., para 1.

Viegas 1999.

Isotope 1997.

1995 Citizens’ Network Green Paper, 56.

For a description of the EU market liberalisation process, see Greaves 2000.

65/271/EEC: Council Decision of 13 May 1965 on the harmonisation of certain provisions affecting competition in transport by rail, road and inland waterway [1965] OJ 88/1500.

Opinion of Advocate General, Case 36/73 NV Nederlandse Spoorwegen v Minister van Verkeer en Waterstaat [1973] ECR-1299.

100

Ibid., Recital 20.

101

Commission of the European Communities, Second report on the implementation of Council Regulation (EEC) No 1191/69 of 26 June 1969, relating to the action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway, and of Council Regulation (EEC) No 1192/69 of 26 June 1969, relating to the normalisation of the accounts of railway undertakings, SEC (74) 2219 final, 18.06.1974.

102

Council Regulation (EEC) No 1893/91 of 20 June 1991 amending Regulation (EEC) No 1191/69 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway [1991] OJ L169/1.

103

Case C-412/96 Kainuun Liikenne Oy and Oy Pohjolan Liikenne Ab [1998] ECR I-5141, para 32.

104

105

Case C-412/96 Kainuun Liikenne Oy and Oy Pohjolan Liikenne Ab [1998] ECR I-5141.

106

Ibid., paras 26–27.

107

Van De Velde 2001.

108

Commission of the European Communities, Proposal for a Regulation of the European Parliament and of the Council on action by Member States concerning public service requirements and the award of public service contracts in passenger transport by rail, road and inland waterway, COM (2000) 7 final, 26.07.2001, p. 4.

109

Hidson and Müller 2003.

110

Van De Velde 2001.

111

Ibid.

112

Transport service operator Arriva is a good example of this. It is headquartered in the UK but owned by Deutsche Bahn, a German railway company. It operates public transport services in 14 European countries. See the company’s official website: Arriva Official Website, ‘Transport Services: Overview.’ http://www.arriva.co.uk/business_activities/transport_services/overview_1.aspx.

113

114

The efforts started from 1995, when it published a Green Paper on this issue: 1995 Citizens’ Network Green Paper.

115

116

1995 Citizens’ Network Green Paper.

117

Ibid.

118

Ibid.

119

Delle Site and Salucci 2009.

120

1995 Citizens’ Network Green Paper, para 99.

121

Ibid., para 89.

122

It did not use the term ‘universal access’ or ‘universal service’; instead it adopted the term ‘system accessibility’: 1995 Citizens’ Network Green Paper.

Ibid.

Ibid.

Ibid., p. 6.

Van De Velde 2008.

Commission of the European Communities, Amended proposal for a Regulation of the European Parliament and of the Council on action by Member States concerning public service requirements and the award of public service contracts in passenger transport by rail, road and inland waterway, COM (2002) 107 final, 21.02.2002; Commission of the European Communities, Revised Proposal for a Regulation of the European Parliament and of the Council on Public Passenger Transport Services by Rail and by Road, COM (2005) 319 final, 20.07.2005.

131

Maczkovics et al. 2010.

132

133

Ibid., Article 5(2).

134

It is not clear to what extent this public control should be to qualify for this exception. Thus, it has created interpretation difficulties and uncertainty in practice. The Court has not addressed this issue in the context of Regulation 1370/2007. However, this question has been discussed by the Court in the context of public procurement rules and tends to be problematic: See Maczkovics et al. 2010; Kekelekis and Rusu 2010.

135

For a discussion of the application of the Altmark criteria, see Sect. 4.2 of Chap. 4.

136

(1)

2009/845/EC: Commission Decision of 26 November 2008 on state aid granted by Austria to the company Postbus in the Lienz district C 16/07 (ex NN 55/06) [2009] OJ L306/26;

(2)

2009/325/EC: Commission Decision of 26 November 2008 on State Aid C 3/08 (ex NN 102/05)– Czech Republic concerning public service compensations for Southern Moravia Bus Companies [2009] OJ L97/14;

(3)

2009/973/EC: Commission Decision of 13 July 2009 on the restructuring aid for Combus A/S [2009] OJ L345/28;

(4)

2011/3/EU: Commission Decision of 24 February 2010 concerning public transport service contracts between the Danish Ministry of Transport and Danske Statsbaner [2011] OJ L7/1;

(5)

2011/501/EU: Commission Decision of 23 February 2011 on State Aid C 58/06 (ex NN 98/05) implemented by Germany for Bahnen der Stadt Monheim (BSM) and Rheinische Bahngesellschaft (RBG) in the Verkehrsverbund Rhein-Ruhr [2011] OJ L210/1;

(6)

2014/201/EU: Commission Decision of 2 October 2013 on compensation to be paid to Simet SpA for public transport services provided between 1987 and 2003 [2014] OJ L114/48;

(7)

SA.34155 Regional law on the compensation of school bus transport in the Land Rhineland-Palatinate, C (2014) 133, 22.01.2014;

(8)

Commission Decision of 15 October 2014 on State Aid SA.20580 (C 31/2007) (ex NN 17/2007) implemented by Ireland for Córas Iompair Éireann Bus Companies (Dublin Bus and Irish Bus), C (2014) 7275 final, 15.10.2014.

137

Article 6 of the Regulation provides that:

All compensation connected with a general rule or a public service contract shall comply with the provisions laid down in Article 4, irrespective of how the contract was awarded. All compensation, of whatever nature, connected with a public service contract awarded directly in accordance with Article 5(2), (4), (5) or (6) or connected with a general rule shall also comply with the provisions laid down in the Annex.

138

See, for example, 2011/501/EU: Commission Decision of 23 February 2011 on State Aid C 58/06 (ex NN 98/05) implemented by Germany for Bahnen der Stadt Monheim (BSM) and Rheinische Bahngesellschaft (RBG) in the Verkehrsverbund Rhein-Ruhr [2011] OJ L210/1, para 218.

139

Regulation 1370/2007, Article 4.

140

2014/201/EU: Commission Decision of 2 October 2013 on compensation to be paid to Simet SpA for public transport services provided between 1987 and 2003 [2014] OJ L114/48.

141

Regulation 1370/2007, Annex.

142

2011/3/EU: Commission Decision of 24 February 2010 concerning public transport service contracts between the Danish Ministry of Transport and Danske Statsbaner [2011] OJ L7/1.

143

In the Decision, the Commission did not require Denmark to recover the incompatible state aid because DSB was a 100% state-owned company, and overcompensation was neutralised by the collection of dividends by Denmark: Ibid., para 347.

144

The refund mechanism was proposed by Denmark and approved by the Commission, which will be incorporated into all PSO contracts between Denmark and DSB. The refund mechanism did not eliminate the possibility of profit-gain by DSB but to control it within a reasonable level. The actual design of the refund mechanism also introduced an incentive element for DSB to improve efficiency: Ibid., paras 350–364.

145

Greaves 2009.

146

Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries [1988] OJ L117/33.

147

Brooks 2009.

148

In the maritime sector, there was a competitive market, but it existed only at the national level. This is different from that in the telecommunications and postal sectors, where the grant of exclusive rights eliminated competition at the national and EU levels.

149

Greaves 2009.

150

In 1989 the Commission made a proposal to the Council on the application of rules on freedom of movement to the maritime sector: Commission of the European Communities, Proposal for a Council Regulation applying the principle of freedom to provide services to maritime transport within Member States [1989] OJ L263/17.

151

This includes transport services from, to and between islands: Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States [1992] OJ L364/7.

152

Commission of the European Communities, Communication on the interpretation of Council Regulation (EEC) No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage), COM (2003) 595 final, 22.12.2003.

153

Chlomoudis et al. 2007.

154

For example, in Scotland ferry services for islands dated back to 1851: Morton 2011, p. 8; Bennett 2006.

155

2013/435/EU: Commission Decision of 2 May 2013 on State Aid SA.22843 (2012/C) (ex 2012/NN) implemented by France in favour of Société Nationale Maritime Corse-Méditerranée [2013] OJ L220/20 (hereafter the SNCM Decision), paras 145–146.

156

For a survey of the organisation of PSO links for islands in Member States, see Commission of the European Communities, Report from the Commission—Third report of the implementation of Council Regulation 3577/92 applying the principle of freedom to provide services to maritime cabotage (1997–1998), COM (2000) 99 final, 24.02.2000.

157

Commission Decisions provide a window to the organisation of ferry service for islands in the Member States. The application of EU competition law and state aid law has produced a lot of controversy. See for example:

(1)

2001/156/EC: Commission Decision of 19 July 2000 on the state aid implemented by Spain in favour of the maritime transport sector (new maritime public service contract) [2001] L57/32 (hereafter the Transmed Decision);

(2)

2011/98/EC: Commission Decision of 28 October 2009 on the state aid C 16/08 (ex NN 105/05 and NN 35/07) implemented by the United Kingdom of Great Britain and Northern Ireland—Subsidies to CalMac and NorthLink for maritime transport services in Scotland [2011] OJ L45/33 (hereafter the CalMac Decision).

158

Chlomoudis et al. 2007.

159

Baird and Wilmsmeier 2011.

160

See Sect. 7.4.3 of this chapter.

161

Commission of European Communities, Proposal for a Council Regulation applying the principle of freedom to provide services to maritime transport within Member States [1989] OJ L263/17.

162

Commission of the European Communities, Commission Report on the implementation of Regulation (EEC) 3577/92 applying the principle of freedom to provide services to maritime transport within Member States—1993–1994, COM (95) 383, 06.09.1995; Commission of the European Communities, Commission Report for 1995–96 on the implementation of Regulation 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage), and on the economic and social impact of the liberalisation of island cabotage, COM (97) 296 final, 17.06.1997; Commission of the European Communities, Report from the Commission—Third report of the implementation of Council Regulation 3577/92 applying the principle of freedom to provide services to maritime cabotage (1997–1998), COM (2000) 99 final, 24.02.2000.

163

Commission of the European Communities, Report from the Commission—Fourth Report on the implementation of Council Regulation 3577/92 applying the principle of freedom to provide services to maritime cabotage (1999–2000), COM (2002) 203 final, 24.04.2002.

164

Baird 2012.

165

In practice, several Member States have been using the public tendering procedure to procure ferry services for islands. The practice in Denmark, Sweden, Greece and Norway has attracted much attention: Baird and Wilmsmeier 2011; Baird et al. 2010.

166

Baird and Wilmsmeier 2011, p. 93.

167

These Guidelines were adopted much before the Altmark ruling. However, the Commission’s approach in these Guidelines was very similar to the Altmark criteria: Community guidelines on state aid to maritime transport [1997] OJ C205/5.

168

Community guidelines on state aid to maritime transport [2004] OJ C13/3.

169

170

The Altmark ruling does not substantially change its approach regarding the application of state aid to SGEI funding. The interplay between the provision of SGEIs and EU state aid law has been dealt with in Chap. 4.

171

The reason lies in the fact that national programmes organising the delivery of PSO have not taken full account of the development of EU competition law and state aid law. This is the very case in the design of Scottish ferry policy. For a brief introduction to the evolution of Scottish ferry policy, see Kay 2009.

172

Community guidelines on state aid to maritime transport [1997] OJ C205/5, p. 13.

173

The Transmed Decision.

174

The SNCM Decision.

175

The Transmed Decision, para 87.

176

In France, Maritime transport link for Corsica (departing from Marseille) has been guaranteed by the French State since as early as 1976 through the establishment of the public undertaking (SNCM) and the grant of State funding.

177

Two months after the Decision was made, it was challenged by France before the Court. The case is still pending. For a summary of the case, see Case T-366/13 France v Commission [2013] OJ C252/42.

178

Transport service for peak period was also covered in the basic service package but subject to very specific obligations on timetable, frequency. This is very similar to that in the Transmed Decision.

On the other hand, for additional services package, the French authority did not impose such obligations but only specify a minimum capacity requirement, which is deemed ‘weak’ by the Commission. Therefore, the Commission argued that basic and additional services were distinct services and must be treated separately. See the SNCM Decision, paras 14 and 152.

179

In its Decision, it compared the maritime transport services departing from a nearby town, Toulon, without state funding with the additional services (from Marseille to Corsica ports) in question. It found that Toulon-Corsica was a substitute service to the Marseille to Corsica link. It took into account several factors: (1) the short distance between Marseille and Toulon, which is 50 km and needs only 35 min; (2) journey time—maritime link from Marseille to Corsica takes up to 10 h, while departing from Toulon needs only 5 h 45 min; and (3) actual traffic flow—actual flow on additional service has declined by 208,213 passengers, while a comparable increase was found on the Toulon route by 324,466 passengers.

180

The inclusion of additional services could not be justified as providing funding towards basic service because of its loss-making nature: the SNCM Decision, para 47.

181

The SNCM Decision, para 166.

182

They are often public undertakings owned and controlled by public authorities in Member States. This is exactly the case in the SNCM Decision, the Transmed Decision and the CalMac Decision.

183

This is particularly the case if the recipient has engaged in anti-competitive conduct prohibited by Articles 101 and 102.

184

Community guidelines on state aid to maritime transport [1997] OJ C205/5.

185

The Commission ‘considers that launching an open Community-wide invitation to tender is in principle the best way to ensure non-discrimination’: Commission of the European Communities, Communication on the interpretation of Council Regulation (EEC) No 3577/92 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage), COM (2003) 595 final, 22.12.2003, p. 15.

186

Bennett 2006.

187

In the 2004 Guidelines, the Commission does not mention this point. The Commission has adopted a formalist approach regarding the application of the Altmark criteria. It essentially means that in most cases, state funding for PSOs still constitutes state aid, and Member States have the obligation to notify. This issue has been discussed in Sect. 4.3.3 of Chap. 4.

188

Without mandatory requirements from the EU law, some Member States have been using the public tendering procedure for the delivery of PSO ferry links for islands, as, for example, in Denmark, Greece, Sweden and Norway. For a discussion on the practice in these countries, see Baird and Wilmsmeier 2011.

189

See, for example, the CalMac Decision.

190

See, for example, the Transmed Decision.

191

Morton 2011.

192

Baird and Wilmsmeier 2011; Cowie 2012; Hervi and Sunde 2001.

193

Hauge 1999.

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Titel: Service of General Economic Interest in Transport
verfasst von: Lei Zhu
Verlag: T.M.C. Asser Press
Buch: Services of General Economic Interest in EU Competition Law
Print ISBN: 978-94-6265-386-3

Electronic ISBN: 978-94-6265-387-0

Copyright-Jahr: 2020
DOI: https://doi.org/10.1007/978-94-6265-387-0_7

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