Pubic Monopolies, Concessions and Competition Law and Policies

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1 Intergovernmental Group of Experts on Competition Law and Policy Geneva, 7-9 July 2009 Pubic Monopolies, Concessions and Competition Law and Policies By European Communities The views expressed are those of the author and do not necessarily reflect the views of UNCTAD. 1

2 PUBLIC ENTERPRISES, INCLUDING MONOPOLIES AND ENTERPRISES WITH SPECIAL OR EXCLUSIVE RIGHTS, INCLUDING CONCESSIONS Why do governments grant certain companies statutory monopoly protection and what are services of general economic interests? Exclusive monopoly rights are awarded for various public policy reasons, such as ensuring security of supply or universal service, providing a basic service to the whole population of a country or avoiding the costs of duplicating an expensive distribution network. Such practices are common, notably for utilities (energy and water), postal services, telecommunications and to some extent in broadcasting and transport (air and maritime), banking and insurance. Services of general economic interest are economic activities of general interest for the operation of which the government takes responsibility, even if management of the service is delegated to a private operator. The concept applies mainly to aspects of 'network' activities. Why does EC competition law apply to these activities? Articles 81 and 82 of the EC Treaty, the EC antitrust rules, address the autonomous behaviour of companies and do not apply by themselves to state measures 1. However, it is not only enterprises that can cause competition distortion, but also states. States may distort competition by inducing or ordering enterprises to engage in anti-competitive behaviour, or by taking protective regulatory measures favouring these undertakings. This gap, if not properly addressed, would lead to a risk of circumvention of the obligations contained in EC antitrust rules. The EC fills this gap through the application of Article 86 of the EC Treaty which applies to public enterprises and enterprises to which Member States grant special or exclusive rights. What does Article 86 say? I) With respect to public enterprises and enterprises with special or exclusive rights Art 86 (1) "In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the rules contained in this Treaty, in particular to those rules provided for in Article 12 and Articles 81 to 89." Definitions Public enterprises: all enterprises which are under the dominant influence of the public administration of a Member State (for example through majority of shares, capital, voting rights, golden shares). 1 A State measure is an act undertaken by a public entity in its role as a public authority. State measures are normally adopted through laws, acts, regulations, administrative rules or other instruments of public law. 2

3 Enterprises with exclusive rights: all undertakings (public or private) privileged by a right (granted by a Member State) to engage in economic activity on an exclusive basis (monopoly). Enterprises with special rights: two or more (public or private) undertakings authorised to provide goods or services in a manner other than according to objective, proportional and non-discriminatory criteria, or which are equipped with legal or regulatory advantages that substantially affect the ability of any other undertaking to provide the same goods or services. Measures covered Government measures at any level (local, regional, national) such as vesting an enterprise with special rights (e.g. a law establishing a monopolist airport operator); The government measure must always have a link with one or more undertakings exercising an economic activity. Measures have a link if they benefit the above undertakings or if these measures consist of granting or maintaining a privilege for them, or if the undertakings are used as an instrument/vehicle to implement the measures. General measures affecting all undertakings in the same manner are not covered. Meaning of the legal provision in practice Under Article 86(1), the Member State must commit to abstaining from adopting or maintaining measures which impose or induce certain behaviour upon an enterprise or encourage/induce it to act against the antitrust rules. Member States have to refrain from any legal or factual influence which leads to or reinforces actual anti-competitive behaviour by public or privileged enterprises or which create the specific danger that such conduct may occur. In other words, Article 86(1) prohibits state-organised restrictions of competition. The legal basis of action is a combination of Article 86(1) and Article 81 and/or Article 82 depending on the type of the alleged infringement. The target of the action is the Member State. Articles 81 and/or Article 82 are enforced against the company if the company had room for autonomous action, i.e., the violation was not induced by the State. Examples Article 81 - Restrictive agreements: state measures inducing one or more public or privileged enterprise to agree between themselves and/or with other undertakings to restrict competition. In the EC there is little case law on this. One case concerned Member States who promoted/authorised anti-competitive tariff agreements between two airline companies enjoying exclusive and special rights (see Judgment of the ECJ in Case 66/86 Ahmed Saeed). Article 82 - Abuse of dominance: state measures inducing one or more public or privileged enterprise to abuse a dominant position. We differentiate between measures 3

4 leading to 1) actual abuse of dominant position, 2) potential abuse, and 3) those producing effects similar to those of abuse such as the extension of a dominant position. a. Actual abuse: typically state approved tariffs or prices that discriminate against certain competitors, or are excessively high; or it can take the form of a refusal to deal or to grant access to essential facility (see Commission Decision 95/364/EC against Belgium on landing fees at Zaventem airport or Commission Decision 97/744/EC on the port of Genoa; or Commission decision against Denmark for refusal to grant access to facilities of the port of Rodby). b. Potential abuse: state measures that affect the structure of the market can lead an undertaking to abuse its dominance. One example is the creation of conflict of interest, such as granting of regulatory powers with which competitive disadvantages can be inflicted on competitors. Another example is a so-called "demand limitation" when the undertaking concerned is unable to satisfy existing demand for the satisfaction of which it has an exclusive right, (see Judgment of the ECJ in case C-475/99; Ambulanz/ Glöckner). c. Similar effects: An enterprise enjoying a monopoly in a market receives another exclusive right in a related market without objective justification (see Judgment of the ECJ in the Telemarketing case or the Commission decision against Germany in the German Post case). II. With respect to undertakings entrusted with the operation of services of general economic interest Art 86 (2) "Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the rules contained in this Treaty, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Community." What does this mean in practice? Article 86 (2) takes into consideration undertakings with a special mission (services of general economic interest or SGEI). Therefore, the competition rules only apply in so far as this does not obstruct the performance of the particular tasks assigned to these undertakings. Exclusive or special rights may often be necessary for the operation of certain of these services (e.g. to guarantee the financial viability of certain activities of universal services). Examples include the postal and electricity sectors. However, the exception to the application of competition law only applies if the restriction of competition is necessary to guarantee the performance of 4

5 the particular tasks assigned to these enterprises and there is no less restrictive means to achieve the same objective, (principle of proportionality). The objective of Article 86(2) is to ensure a good functioning of services of general economic interest in a way that is least restrictive for the Internal Market and for competition. There is a balance between these two objectives. Practical application of this provision is rare and could include for example an exclusive right to import to electricity to in order to meet a universal service obligation in the utilities industry. Anti-discrimination rules regarding state monopolies of a commercial character The EC Treaty contains other rules regarding the treatment of state monopolies. Article 31 EC provides that Member States should adjust any state monopolies of a commercial character to ensure that no discrimination exists against nationals of other Member States regarding the conditions under which these monopolies buy and sell goods. What is intended by this rule? What are monopolies of a commercial character? They are public undertakings on which exclusive rights for the production, commercialisation, importing and/or exporting of goods have been conferred. The concept embraces all situations in which a Member State can influence the imports or exports through an undertaking. The term "adjust" does not mean that these monopolies have to be terminated. It means that Member States can maintain state monopolies, but they commit to arrange the organisation and operation of state monopolies of a commercial character in such a way as to avoid discrimination against nationals/companies of other member States regarding the conditions under which goods are purchased and sold, so that trade in goods from other Member States is not put at a disadvantage, in law or in fact, in comparison to domestic goods and that competition between the economies of the Member States is not distorted. Example It would be incompatible with the Article to establish a system imposing quantitative limits on imports, discriminatory fiscal measures or measures fixing the price of products in such as way as to discriminate against imports. Concessions and competition law The most obvious approach to the issue of how concessions would be treated under our competition laws is to assume that it would be examined in the context of Article 86 EC legislation. It is worth mentioning that there is virtually no case law that deals specifically with concessions, therefore, the description below of how EC competition law would apply in this narrow area is at this point largely theoretical. 5

6 Generally speaking, Article(s) 81EC and /or 82 EC would be applicable both with respect to the procedure of awarding a concession as well as to the operation of a concession if anticompetitive conduct prohibited by these Articles results from an autonomous decision of the company having the concession. This would be the case if it cannot be shown that a Member State induced the company to engage in anticompetitive conduct. (See explanation on page 2 of the circumstances that trigger the application of Article 86 EC.) Article 86 could be applicable in connection with a violation related to a concession if the concession would be considered to fall under Article 86 of the EC Treaty, i.e., the awarding of the concession would be a state measure or the company receiving it would be an undertaking with special or excusive right or a public undertaking within the meaning of this Article. This Article would be enforced against the Member State in combination with Article 81 and/or Article 82 EC, (depending on the type of infringement) if it is shown that the violation was induced by the State. (See above.) However, regardless of whether or not the conduct would fall under Para 1 of Article 86 EC or would be subject exclusively to Article(s) 81 and/or Article 82 EC, Para 2 of Article 86 could exempt the conduct from the prohibitions contained in these provisions under certain circumstances. As explained above, under Article 86(2), with respect to companies entrusted with the operation of a service of general economic interest, the competition rules apply only to the extent that the application of these rules does not obstruct the provision of the service of general economic interest. A concession could constitute an "entrustment" within the meaning of this Article. It is important to remember, however, that this exception is only available if the conditions of strict proportionality are satisfied, i.e., if the restriction of competition is necessary and is the least restrictive measure available to achieve the objective 2. Regarding EC legislation on concessions that is not expressly competition legislation, there is no comprehensive framework governing this area. There are, however, provisions on "public works concessions 3 " and "services concessions 4 " in two EC directives governing public procurement. One of these directives establishes rules for enterprises operating in the water, energy, transport and postal services sector 5, and the other establishes rules for public works 2 See Almelo, case C-393/92, 1994 E.C.R. I-1477, Para A "Public works concession" is a contract of the same type as a works contract except for the fact that the consideration for the works to be carried out consists either solely in the right to exploit the work or in that right together with payment." Art. 1(3)(a) of Directive 2005/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, OJ L 134, p , and 1(3) of Directive 2005/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public services contracts, OJ L 134, p A "Service concession" is a contract of the same type as a public service contract except for the fact that the consideration for the services consists either solely in the right to exploit the service or in this right together with payment." Art. 1(3)(b) of Directive 2005/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors and 1(4) of Directive 2005/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public services contracts. 5 Directive 2005/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, OJ L 134, , p. 1. 6

7 contracts, public supply contracts and public service contracts 6 in some other industries, such the construction industry. These directives lay down rules for the procedure of awarding public contracts if their value exceeds a certain threshold. Regardless, however, of whether or not a concession is governed by either one of these public procurement directives, the procedures involved in awarding it must reflect fundamental rules and principles enshrined in the EC Treaty in support of the Internal Market. These rules and principles include the rules on the free movement of goods and the freedom of establishment, the principles of equal treatment, non-discrimination, transparency, proportionality and mutual recognition. The principles of equal treatment and transparency imply that interested parties become reasonably informed about the criteria of awarding a concession in advance and that these criteria apply equally to all of them. Proportionality should ensure that the state does not impose conditions, whether technical, professional or financial, that are excessive and disproportionate in view of the objective. According to the principle of mutual recognition, a Member State must accept the products and services supplied by economic operators from another Member State. 6 Directive 2005/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public services contracts, OJ L 134, , p

8 Annex Article 86 EC Treaty 1. In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the rules contained in this Treaty, in particular to those rules provided for in Article 12 and Articles 81 to Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the rules contained in this Treaty, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Community. 3. The Commission shall ensure the application of the provisions of this Article and shall, where necessary, address appropriate directives or decisions to Member States. Article 31 EC- Treaty 1. Member States shall adjust any State monopolies of a commercial character so as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States. The provisions of this Article shall apply to any body through which a Member State, in law or in fact, either directly or indirectly supervises, determines or appreciably influences imports or exports between Member States. These provisions shall likewise apply to monopolies delegated by the State to others. 2. Member States shall refrain from introducing any new measure which is contrary to the principles laid down in paragraph 1 or which restricts the scope of the articles dealing with the prohibition of customs duties and quantitative restrictions between Member States. 3. If a State monopoly of a commercial character has rules which are designed to make it easier to dispose of agricultural products or obtain for them the best return, steps should be taken in applying the rules contained in this article to ensure equivalent safeguards for the employment and standard of living of the producers concerned. 8

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