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- confers on any undertaking or undertakings, otherwise than according to such criteria, legal or regulatory advantages which substantially affect the ability of any other undertaking to provide the same telecommunications service or to undertake the same activity in the same geographic area under substantially equivalent conditions.’
Herein the service or activity provided by undertakings with special rights must have the same meaning of economic behavior. Therefore it is distinct that it is a sub-concept of undertakings within competition law.
On the assumption that the foregoing consequence is right, we easily conclude that the anti-competitive activities of public undertakings and privileged undertakings fall into the scope of competition law, specifically Article 81 and 82 and not Article 86(1). Therefore although Article 86(1) touches upon public undertaking and undertakings granted exclusive or special rights, it seems that it can not concern the activities of those undertakings, but the activities of Member State which are contrary to the Treaty in case of those undertakings. Until now from the point of view of Semantic it gives us an impression that the addressor of Article 86(1) would absolutely the Member State. Can we immediately make such conclusion?
2.2 From a Substantial Perspective
To resolve the problem above we should take a substantive analysis on the natute of activities prohibited by Article 86(1). Let us step into the field of the special obligations of Member States under Article 86(1) in case of public undertakings or undertakings granted exclusive or special rights.
The words of Article 86(1) implies that this paragraph concerns State measure contrary to the Treaty in case of public undertakings or privileged undertakings. Concretely the words ‘in case of’ means that there are two entities, one is Member State and the other is public undertakings or privileged undertakings, both of which should essentially exist in any State measure at one time. Furthermore State measures adopted or maintained in force by Member States contrary to the Treaty are measures benefiting public undertakings. And it means these undertakings can get competitive advantage over other normal pure commercial undertakings and be employed as the instrument by Member States for the implementation of some specific goal.
What’s more, such competitive advantage granted by Member States, otherwise than according to objective, proportional and non-discriminatory criteria, to public or privileged undertakings is different from intellectual property rights which are given pursuant to the terms of a given act without discretion on Member States.So the key point of State measure in case of public or privileged undertakings is related to the relationship between Member States and public undertakings or privileged undertakings.
Hereby it is necessary for us to examine the concepts of public undertakings and privileged undertakings again. In virtue of these concepts they emphasize on the role of public authorities in those undertakings. Such Member State measure is not directly carried out by Member States but indirectly done by instruments, that is to say public undertakings or privileged undertakings, of Member States. Therefore the State measure within Article 86(1) is an economic activity undertaken by a public entity in its role as a public authority.Without State discretionary power granted can, if possible, these undertakings difficultly fulfill economic tasks designed by Member States. When performing economic activities such undertakings function not only as undertakings but also as public authorities. On second thoughts, such State measure is not only behavior based on market but also behavior based on administrative power.
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