欧共体条约86条之解释
Uncover the Veil of Article 86(2)
侯利阳
【摘要】This paper firstly defines some concepts contained in Article 86(2) of EC Treaty, such as ‘entrusted’ and services of general interest. Subsequently it synthesizes the practice of proportionality principle according pre-existing case law.
【关键词】Article 86(2), Proportionality Principle
【全文】
1. Introduction
Article 86(2) of EC Treaty (hereafter referred as Article 86(2)) provides that 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.
Because Article 86(2) was potentially applicable to a diverse range of politically sensitive situations in different Member States, European Commission (hereafter referred as the Commission) made very little use of Article 86 until the late 1980s, and the questions which arose were referred to the European Court of Justice (hereafter referred as the Court) from national courts. These questions were answered without the Court or the Commission finding it necessary to formulate general principles. The result was to develop several legal rules on a case-by-case basis, which have not been explicitly related to one another, which overlap, and which have not clearly answered several foreseeable questions which, due to accidents of litigation or to the prudence or tactics of plaintiffs have not so far been raised.
As being a provision permitting derogation from the Treaty rules, Article 90(2) must be interpreted strictly. Though Article 86(2) provides statutory monopoly a limited derogation, it goes without saying that the mere invocation of Article 86(2) by a Member State or by an ‘entrusted’ undertaking does not automatically entail that the exception will be applied. This would be happen if all the conditions foreseen in the provision are fulfilled. This first condition, which a service of general economic interest must be entrusted by the state to undertakings, has already examined. The other two conditions are that the restriction must be necessary and the interest of the Community must be respected.
2. What is ‘entrust’?
The activity of ‘entrust’ is the foremost condition of Article 86(2) to be satisfied by undertakings who want to employ this article. As regards this word, three conditions implied by the Court should be met. First, the word ‘entrusted’ indicates the involvement of public authorities though an activity of granting with services of general economic interest to undertakings by public law instruments. Therefore such state-related undertakings can exploit Article 86(2) as a justification of their monopolies unless some of their economic operation must find their base on public law. Furthermore, the activity of ‘entrust’ by public authority must be as explicit as to grant upon specific undertakings. Thus undertakings applying Article 86(2) can not rule on public law instruments in general manner to get derogation under Article 86(2). Finally, services of general economic interest must be assigned by public authorities through a positive act, such as conferring certain function or granting a concession. Merely tolerating, approving, or endorsing its activities is insufficient.
Besides, we should admit that ‘it is perfectly possible, and even normal, for a public authority to make use of private law instrument in the exercise of its everyday function’ . However according to the pre-existing practices of the Community it seems that the Community has not brought undertakings ‘entrusted’ though private law instruments into the scope of Article 86(2).
Even in Almelo, which concerned an electricity supply contract entered into by a local distribution undertaking and a regional electricity distribution undertaking, the Court held that ‘as regards the question whether an undertaking such as IJM has been entrusted with the operation of services of general interest, it should be borne in mind that it has been given the task, through the grant of a non-exclusive concession governed by public law, of ensuring the supply of electricity in part of the national territory’ . The Court still regarded the activity in question are of a nature of ‘entrusted’, though it rejected interpreting the contracts in question as being public authority measure.
In addition, the word of ‘entrusted’ in Article 86(2) has close relation with the word ‘grant’ in Article 86(1). That means the grant of special or exclusive rights to an enterprise constitutes a ‘measure’ within Article 86(1), the validity of which must be checked against Article 86(2). From this point of view, it seems that ‘entrust’ may have the same meaning as ‘grant’. According to the definition of special or exclusive rights by the Commission, the Commission explicitly provided that special or exclusive rights must be done through any legislative, regulatory or administrative instrument. Therefore, in current circumstances of the Community there is no place for private law instruments to take a role under Article 86.
3. Service of General Economic Interest
