Public Services and Related Concepts in the European Union

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Contents Table of Cited Treaties with Protocols, and the Charter Table of Cited European Union Directives and Regulations Table of Cited Cases before the Court of Justice of the European Union Foreword Preface Acknowledgements List of Acronyms Chapter 1 European Union Law Toolkit: Selected Fundamental Principles and Concepts of European Union Law and Their Impact on Public Services 1. Introduction 2. Unique Features of the European Union 3. Values and Aims of the European Union 3.1. General Overview 3.2. Variety of Values and Aims: The Clash of the Titans 3.3. Catalogue of Values and Aims 3.4. The EU’s Aim to Ensure the Effective Provision of Services of General Economic Interest 4. Competences of the European Union 4.1. Limits to the Competences of the European Union 4.1.1. Principle of Conferral of Competences: The “Empty Box” Principle 4.1.2. Exclusive, Shared and Supporting Competences of the EU 4.2. Use of Competences of the European Union 4.2.1. Principle of Subsidiarity 4.2.2. Principle of Proportionality 4.3. (Internal) Division of Powers: The Institutional Aspect 5. European Union Legal System 5.1. General Overview 5.2. Primary Legal Sources 5.3. Secondary Legal Sources 6. Enforcement of European Union Law 6.1. Principle of Primacy 6.2. Principle of Direct Effect (and Beyond) 6.3. Principle of Procedural Autonomy Chapter 2 Setting the Scene: The Socio-Economic and Political Background of Public Services in the European Union and Beyond 1. Introduction 2. The Socio-Economic and Political Background of Public Services in the European Union 2.1. The Welfare State and the European Social Model: The Importance of Public Services or Services of General Economic Interest 2.2. Public Services and Competitive Markets: The Limits of Competition Law 2.3. The Liberalization of Certain Infrastructure Sectors and Its Effects on Public Services or Services of General Economic Interest 2.3.1. Conceptual Explanation of the Liberalization of Certain Infrastructure Sectors and Related Processes 2.3.1.1. Regulation 2.3.1.2. Deregulation 2.3.1.3. Privatization 2.3.1.4. (Total) Commercialization 2.3.2. The New Paradigm in the Organization of Certain Infrastructure Sectors 3. Public Services and Related National and Supranational Concepts 3.1. Public Services Concepts as Developed in Various Member States 3.2. Services of General Economic Interest 3.3. Services of General Interest 3.4. Social Services of General Interest 3.5. Universal Services Chapter 3 The European Union’s Legal Framework for Services of General Economic Interest 1. Introduction 2. Overview of Relevant Sources of EU Law 2.1. TEU 2.2. TFEU 2.2.1. TFEU's Provisions on Competences of the EU 2.2.2. TFEU's Provisions on Non-Discrimination and Citizenship of the EU 2.2.3. TFEU's Provisions on the Internal Market (Free Movement) 2.2.4. TFEU's Provisions on Competition 2.2.5. TFEU's Provisions on Specific Economic Sectors and Trans-European Networks 2.2.6. TFEU's Provision on the System of Property Ownership 2.2.7. TFEU’s Provisions on the Enforcement of European Union Rules 2.2.8. Protocols 2.3. CFREU 2.4. Acts of EU Institutions 2.5. Generally Applicable Acts of the EU 2.5.1. Sector-Specific Acts of the EU 2.5.1.1. Services of General Economic Interest in the Electronic Communications (Telecommunications) Sector 2.5.1.2. Services of General Economic Interest in the Postal Services Sector 2.5.1.3. Services of General Economic Interest in the Energy Sector 2.5.1.4. Services of General Economic Interest in the Transport Sector 2.5.1.5. Services of General Economic Interest in Other Economic Sectors 3. Services of General Economic Interest and the Related Roles of the Member States and the European Union 3.1. From Rome to Lisbon: Services of General Economic Interest in a Changed Socio-Economic, Political and Legal Environment 3.2. Changed Role of the EU in the Field of Services of General Economic Interest? 4. Services of General Economic Interest and Fundamental Rights 5. Services of General Economic Interest and Market Competition: A Balanced Approach to Resolving Tensions 5.1. Competition Rules, Their Fundamental Characteristics and Impact on Services of General Economic Interest 5.1.1. Coordination of Business Activities: Agreements, Decisions and Concerted Practices 5.1.1.1. Prohibition of Coordinated Business Activities 5.1.1.2. Legal Consequences of Breaches 5.1.1.3. Exceptions: Restrictions of Market Competition That Are Compatible with the Internal Market 5.1.1.4. Art. 101 TFEU and Services of General Economic Interest 5.1.2. Abuse of Dominant Position 5.1.2.1. Dominant Position 5.1.2.2. Abuse (of Dominant Position) 5.1.3. Market Concentration 5.1.4. Market Regulation 5.1.4.1. Public Undertakings 5.1.4.2. Special and Exclusive Rights 5.1.4.2.1. Special Rights 5.1.4.2.2. Exclusive Rights 5.1.4.3. Measures Contrary to the Rules Contained in the Treaties 5.1.4.3.1. Measures Contrary to Provisions Addressed to Undertakings 5.1.4.3.2. Measures Contrary to Provisions Addressed to Member States 5.1.5. State Aid 5.1.5.1. The Concept of State Aid: Conditions for the Existence of State Aid 5.1.5.1.1. Member State Origin 5.1.5.1.2. Advantage Advantage Assessment in the Case of Classical Market Transactions: The Market Economy Operator Principle Advantage Assessment in the Public Financing of Services of General Economic Interest: The Altmark Principle 5.1.5.1.3. Selectivity 5.1.5.1.4. Distortion of Market Competition 5.1.5.1.5. Effect on Trade between Member States 5.1.5.2. Additional Steps in the Application of the Rules on State Aid in the Event of a State Aid Measure in the Sense of Art. 107(1) TFEU 5.1.5.2.1. The Incompatibility of State Aid with the Internal Market and Exceptions 5.1.5.2.2. Notification and Standstill Obligation 5.1.5.2.3. Main Legal Consequences of Breaches of Obligations Relating to State Aid 5.2. Exceptional Non-Application of Competition Rules and of Other Internal Market Rules in Order to Achieve the Politically Desired Provision of Services of General Economic Interest: An Analysis of Art. 106(2) TFEU 5.2.1. Introduction to Art. 106(2) TFEU 5.2.2. Genesis of Art. 106(2) TFEU 5.2.3. Function of Art. 106(2) TFEU 5.2.4. Beneficiaries of Art. 106(2) TFEU 5.2.5. Direct Effect of Art. 106(2) TFEU 5.2.6. Elements of Art. 106(2) TFEU 5.2.6.1. Undertaking Entrusted with the Operation of Services of General Economic Interest 5.2.6.2. Undertaking Having the Character of a Revenue-Producing Monopoly 5.2.6.3. The Rule: The Duty to Apply the Rules Contained in the Treaties 5.2.6.4. The Limited Exception: The “Right” or Authorization to Disapply the Rules Contained in the Treaties and Its Limits 5.2.6.4.1. Elements of the Limited Exception 5.2.6.4.2. The Balancing or Proportionality Test: Preventing Failure by Using the Strict(est) Approach? 5.2.7. Burden of Proof Regarding Art. 106(2) TFEU Conclusion References About the Author Index Blank Page