Understanding of Article 86(1) of EC Treaty
Understanding of Article 86(1) of EC Treaty —within the Scope of Competition Law
侯利阳 Liyang Hou
【摘要】This paper aim to discuss three related questions within spectrum of Article 86(1). In the beginning part the addressee of Article 86(1) will be analyzed from two respective perspectives. Subsequently the writer will give some incomplete conclusions about the nature of State measure. Furthermore this paper will indicate the independent method implied by the practices of the Court of Justice (referred as the Court below) as regards Article 86(1) in conjunction with Article 82.
【关键词】Article 86(1) of EC Treaty
【全文】
1. Introduction
Article 86(1) of EC Treaty (referred as Article 86(1) below) is a ‘renvoi’ provision or a ‘reference rule’ that is to say it does not have an independent application but applies only in conjunction with another Article or other Article of the EC Treaty.It seems that Article 86(1) can be violated in combination with any Article in the EC Treaty, though this Article particularly concerns its relation with Article 12 and 81 to 89. Therefore it produces a result that from a point of view Article 86(1) has the broadest scope of infringement compared with any other Articles in the Treaty. Lack of sufficient knowledge about the Treaty except competition law, I had better confine this paper to some issues of Article 86(1) in combination of competition law, especially of Article 82.
This paper aim to discuss three related questions within spectrum of Article 86(1). In the beginning part the addressee of Article 86(1) will be analyzed from two respective perspectives. Subsequently the writer will give some incomplete conclusions about the nature of State measure. Furthermore this paper will indicate the independent method implied by the practices of the Court of Justice (referred as the Court below) as regards Article 86(1) in conjunction with Article 82.
2. To whom is the provision addressed?
In Principle, Article 86(1) is a provision affecting Member States and not undertakings. This can be seen from the wording of the rule, which leaves no room for doubt about who is affected by the provision: the Member State.Nevertheless some authors still doubt such argumentthat Article 86 has three paragraphs, of which at least paragraph 2 is, in part, directed at undertakings . In addition, even though paragraph 1 is clearly addressed to Member States, a more detailed analysis of this paragraph reveals that, as well as directly imposing obligations on Member State, it also prohibits them from carrying out certain activities through public or undertakings granted exclusive or special rights by Member State (sometimes referred to privileged undertakings below). Therefore they alleged that in this way Article 86(1) can also be understood as a provision directed at certain types of undertakings, although it mainly affects Member States.In addition, when discussing exclusive rights granted by government in such sectors as dominant position, some school books concerning competition law categorized the legal problem into the range of Article 86(1).
Thus this question to whom is the provision Article 81(1) addressed leads me to a deeper consideration. In virtue of the words of Article 86(1), it certainly seems that we can not doubt it is Member State who is the addresser. But why are there none or less some scholars provide, self-consciously or not, their suspicions? Thus the doubt begins my first part.
2.1 From a Semantic Perspective
Above all let us examine the concept of public and privileged undertakings and hereby explain the reason of the opinion of the Court.
