State Monopolies Under EC Law

The European Union has strict laws, embodied in the EC Treaty, on the conduct of competition within Europe. One of the key elements of these rules is that monopolies should not be allowed to distort competition. However, it is realized that on some occasions, there are certain reasons that can allow the national authorities to create a state monopoly in particular sectors as this can have benefits which go beyond the maintenance of competition. However the rules surrounding where a natural authority can create and sustain monopoly are very strict and are given to attack by individuals/companies who believe they are being unfairly treated. This text includes an examination of Article 90 in respect of the position of public undertakings and their compatibility with EC competition rules. It also looks at the legal position of state monopolies following European court cases which have restricted national interests, and deals with specific industry sectors: energy; telecom; postal services; transport broadcasting; and commercial monopolies.

Table of Contents:
Foreword; Acknowledgements; Select bibliography; Stop press; Tables; National Cases; Cases before the European Court of Justice; Treaties; Commission Communications; Commission Decisions; Commission Directives; Commission Documents; Commission Notices; Commission Regulations; Council Directives; Council Regulations; European Parliament; National Legislation; Introduction; The new interpretation of Article 90 Structure of the book; PART I: ARTICLE 90; Chapter 1: Article 90(1): Member States' obligations; General meaning; Meaning of specific phrases: 'Member States' 'public undertaking' 'special and exclusive rights' 'measures'; Chapter 2: Article 90(2): permitted derogation from Treaty rules; General meaning; Original scope of application; Recent scope of application; Application of Article 90(2) to the mere existence of a monopoly; Link between Article 90(2) and Article 90(1); Corbeau and the necessity test; Specific phrases: 'services of general economic interest'; 'Does not obstruct in law or in fact the particular tasks assigned to them'; 'The development of trade must not be affected to such an extent as would be contrary to the interest of the Community'; Burden of proof; Direct effect of Article 90(2); Possible defences; Chapter 3: Article 90(3): Commission power to issue Directives or Decisions; General meaning; Commissions supervisory power; Commissions enforcement power; Differences between Decisions and Directives under Article 90(3); Article 90(3) Directives; Nature of Commission Directives; Applicable procedure; Commissions power to take normative measures by way of Directives only; Commissions power to legislate in respect of Article 90(1) measures; Examples of Commission Directives pursuant to Article 90(3); Principal features of Article 90(3); Directives leading to the abolition of monopolies Article 90(3); Decisions Right of defence in Article 90(3); Decisions Limited rights of complainants in Article 90(3) cases; Chapter 4: State-related undertakings and the competition rules: Articles 85 and 86 and Article 90; Article 86 Summary; Article 86 criteria; Traditional Article 86 abuses; Article 86 abuses characteristic of state-related undertakings Article 85; Chapter 5: State-related undertakings and the rules on the free movement of goods: Articles 30 to 37 and Article 90; Articles 30 to 34; Article 36; Article 37; General rules on free movement of goods: Articles 30 to 36; The traditional case-law of the Court; The recent case-law on monopolies over goods; Article 30 type restrictions; Conditions for exemption: justification and proportionality; Link between Article 30 infringements and Article 86 infringements; Rules governing State monopolies of a commercial character: Article 37; Monopolies covered by Article 37; Purpose and scope of Article 37; Comparison between the scope of Article 30 to 36 and Article 37; Link between Article 37 and Article 90; Chapter 6: State-related undertakings and the rules on the...

About the Author :
FranCoise Blum was educated in both English and French law. She has practised EC law and, in particular competition law, for the past 13 years; first, as a solicitor in the City of London, then in Brussels and finally in Paris as an avocat. She has recently been appointed rEfErendaire at the Court of Justice. She has advised several public enterprises and private companies on the application of Article 90, particularly in the postal, transport and energy sectors. Anne Logue is a solicitor, an EC law specialist, entitled to practise in the three jurisdictions of England & Wales, Ireland, and Northern Ireland. After many years in the EC Unit of Clifford Chance in Brussels, in 1996 she established, and is Director of, Prior Associates, a group of EC law analysts, in Brussels and Dublin. As a practitioner of EC competition law, including the application of Article 90, she has advised public and private enterprises, the European Commission and national governments on EC law and policy. She has also advised on EC Competition Law in respect of the EU applicant countries of Central and Eastern Europe.