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“In some cases a public undertaking enters into an agreement with another undertaking granting the latter an exclusive right to perform a particular task , the question here is whether this amounts to a measure granting exclusive rights, in which case Article 86(1) may apply, or an agreement between undertakings that restricts competition, in which case Article 81(1) may apply.” In Bosto, the Court upheld the former; otherwise in BT the Court stand for the latter. I should investigate more cases to conclude the Court’s approach in question.
Anther interesting question is what the material core in the definitions of the Court as regard to undertakings to which the Member States entrusted exclusive or special rights is. Whish provided a valuable clue whether such exclusive or special rights imply the authorities’ discretion. Although it seems that he caught the point better that the Court did, his view led to another new concept – discretion. I think it can get more attention.
- Under normal conditions undertakings conferred on public service obligations by the Member States will be granted exclusive or special rights in certain markets in the mean time to perform such particular tasks without disturbance of cherry-picking or cream-skimming. According to the legal practices of the ECJ in recent years, the grant of exclusive or special rights, in itself, can contravene Article 86(1) of ECT . So the Member State should take these principles, whether by legislative things or by cases, into deep consideration when deciding the content and form of operation of public service obligations, though the Community left greater freedom on Member States to promote services of general economic interests according to Article 16 of ECT and the justified performance of services of general economic interests can get protection by Article 86(2).
Therefore to what extent can the undertakings or other entities with the operation of public service obligations hold exclusive and special rights by virtue of Article 86(1) in conjunction of the derogation of provision of Article 86(2)? Dealing with this question is a two-step procedure. First, one must know under what conditions Member States infringe Article 86(1); and secondly if they did violate it, under what circumstances they can get exemptions by virtue of Article 86(2). To answer the two questions, one should try to clarify the scope and criteria as regards exclusive or special rights from the past ECJ cases and the Commission’s practices, and further to categorize such cases and practices by some orders.
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