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In a word, the argument of Dr. Sierra should be got more support, at least in my mind. Furthermore the legal practices in this part by the Community are particular ambiguous and sometimes are self-interfered. So this argument is far from conclusive because of limited knowledge and I have to make up sometime in the future.
4. The Independent Methods to Apply Article 86(1) in Combination of Article 82
After analyzing the problems of the addressee and the nature of State measure, it is time for us to answer the last question how to conclude an infringement of Article 86(1) from such State measure.
According to our analysis above though Article 86(1) are only applicable to Member State the concerns here we should pay yet the activities of public or privileged undertakings aiming to organization a market. When such activities has the effect of prohibit competition between Member State, we can conclude that these activities are contrary to Article 86(1).
However further more as a reference article, in virtue of Article 86(1) alone jurists can not conclude the infringement behaved by Member State. Because according to the words of Article 86(1) it did not tell us what the infringements are in question. Therefore, Article 86(1) is nonsense without combination with other Articles.For example, as regards competition law Article 86(1) should be referred in conjunction with Article 82 when prohibiting Member State from obliging public or privileged undertakings to engage in behavior which constitutes abuse of a dominant position.
However when we apply Article 86(1) in combined with Article 82, there probably exists a sensitive conflict. As we know, the addressees of Article 82 are only undertakings which include public, privileged and private undertakings and other entities carrying out activities of participation of a market. Consequently the two articles clearly have different addressees. In addition, the activities of the different addressees of two Articles have their respective characteristics. Herein runs such conflict whether we can pursue the method within Article 82 which only applies to activities of participation of a market to judge the legal problems with relation to Article 86(1) which only applies to behaviors of organization a market.
The method to apply one specific Article should be based on the characteristics of activities prohibited by the Article. So I think we can not directly apply the method of Article 82 to the cases subject to Article 86(1) in combination of Article 82. Application of Article 86(1) in conjunction with Article 82 should has its own method distinct from that within Article 82 alone. However here the activities subject to Article 86(1) indeed violate Article 82, therefore these activities must formally satisfy every condition indicated by Article 82, that is to say dominant position, abusive activities and effect on trade between Member States.
4.1 Dominant Position
For Article 86(1) to apply in combination with Article 82, the public or privileged undertaking has to be in a dominant position on a market which is relevant from an economic point of view and which embraces a substantial part of common market.
Herein as regards dominant position subject to Article 86(1) in combination with Article 82 the Court usually did not take the method of geographic and product market to conclude the dominant position of undertakings in question. And the Court initiated a simple way to conclude dominance under Article 86(1) in conjunction with Article 82. In ERT v. DEPcase the Court stated that it should be borne in mind that an undertaking which has a statutory monopoly may be regarded as having a dominant position within the meaning of Article 82 of the Treaty and that the territory of a Member State over which the monopoly extends may constitute a substantial part of the common market.
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