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DEFINITIONS LIBERALIZATION

LIBERALIZATION AND SERVICES OF GENERAL ECONOMIC INTEREST (some philosophical, ethical and legal aspects) PhD. ALEŠ FERČIČ

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DEFINITIONS LIBERALIZATION

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  1. LIBERALIZATION AND SERVICES OF GENERAL ECONOMIC INTEREST (some philosophical, ethical and legal aspects) PhD. ALEŠ FERČIČ University of Maribor, Faculty of law

  2. DEFINITIONS • LIBERALIZATION • IN THE NARROW SENSE: PRO-COMPETITIVE DEREGULATION (ABOLITION OF EXCLUSIVE- AND/OR SPECIAL RIGHTS, I.E., ABOLITION OF LEGAL BARRIERS OF (MARKET) ENTRY); • IN THE WIDE SENSE: PRO-COMPETITIVE:-DEREGULATION & -REGULATION (ABOLITION OF ECONOMIC OR FACTUAL BARRIERS OF (MARKET) ENTRY). • SERVICES OF GENERAL ECONOMIC INTEREST • ART. 106/2 TFEU: -ECONOMIC ACTIVITIES OR SERVICES USED TO SATISFY OF ONE OR MORE GENERAL NEEDS, I.E., USED TO PROVIDE USERS WITH ONE OR MORE ESSENTIAL GOODS OR/AND SERVICES. -DIE DIENSTLEISTUNGEN VON ALLGEMEINEM WIRTSCHAFTLICHEM INTERESSE • ART. 14 TFEU: -LEGAL REGIME, I.E., PUBLIC SERVICES OBLIGATIONS -DIE DIENSTE VON ALLGEMEINEM WIRTSCHAFTLICHEM INTERESSE

  3. IDENTIFICATION-, SELECTION-, RECONCILIATIONAND FINAL DEFINITION OF GOALS,AND MEASURES FOR THEIR REALIZATION (LIBERALIZATION) POLICY AND LAW LIBERALIZATION (COMPETITION) SGEI (PUBLIC SERVICES) POLICY LIBERALIZATION (COMPETITION) SGEI (PUBLIC SERVICES) LAW NOTE: -POLICY AS A “FORUM” FOR PHILOSOPHICAL, ETHICAL, ECONOMICAL, SOCIAL AND LEGAL QUESTIONS -COMPARE MODELS IN USA, GB, GERMANY, FRANCE, SCANDINAVIA,…

  4. WHERE ARE THE PROBLEMS? NON-COMPETITIVE MARKETS OF SGEI PRO- COMPETITION DEREGULATION PRO- COMPETITION REGULATION COMPETITIVE MARKETS OF SGEI SUPPLY OF SGEI (GOAL, USERS PERSPECTIVE)

  5. “NEW PARADIGM” LIBERALIZATION SHOULD NOT BE “A PURPOSE TO ITSELF” COMPETITIVE MARKET AS AN INSTRUMENT (INTENSIVE) USE OF COMPETITION LAW FOR SGEI PUBLIC UNDERTAKINGS IN COMPETITIVE ENVIRONMENT “NP” IMPORTANCE OF REGULATORY FUNCTION IRB MORE MARKET, MORE LAW ET

  6. MAIN PLAYERS OF LIBERALIZATION (INSTITUTIONAL ASPECTS) EU COURT(S) EU COMMISSION OTHER EU BODIES NCA (RS: UVK) SECTORAL REGULATORS OTHER MS BODIES

  7. WHAT DEFINES REGULATORY FRAME? (LIMITS OF STATE-INTERVENTION WITHIN THE MARKET) SOURCES (PLURALISM): NATIONAL, INTERNATIONAL, SUPRANATIONAL EXAMPLE: EU RS WTO

  8. MONOPOLISTIC BOTTLENECK / ESSENTIAL FACILITY ECONOMIC THEORY AND (EX ANTE) REGULATION (NATURAL) MONOPOLIES AND OLIGOPOLIES (IREVERSIBLE / IMMOBILE) INFRASTRUCTURE (FACILITY) KEY PROBLEMS WELFARE ECONOMICS (“TRUE”) RANGE OF ECONOMIC THEORY CONTRA “UNIVERSAL” REGULATION (“ONE SIZE FITS ALL”) (SPECIFICS OF SECTORS AND THEIR MARKETS)

  9. NATURAL MONOPOLY

  10. [Irreversibility] HIGH 7 8 9 MIDDLE 4 5 6 LOW 1 2 3 LOW (Natural) polypoly MIDDLE Natural oligopoly HIGH Natural monopoly [Economy of scope effects] MONOPOLISTIC BOTTLENECK & INFRASTRUCTURE

  11. SUITABILITY OF REGULATION (WHEN? – HOW? – TO WHAT EXTENT?) MONOPOLISTIC BOTTLENECK / ESSENTIAL FACILITY THEORY NET EFFECTS THEORY SELECTED THEORIES SWITCHING COSTS THEORY CONTESTABLE MARKETS THEORY LIMITED RANGE & CASE-BY-CASE

  12. OTHER PROVISIONS EU LAW AS A LEGAL BASIS OF LIBERALIZATION & SGEI 3 14 & 106 TEU & TFEU SECTORAL LEGISLATION TRANSPORT (RAIL-, AIR-,…) ENERGY (ELECT., GAS). POSTAL SERVICES OTHER SERVICES TELECOMMUNICATIONS / E-COMMUNICATIONS

  13. TEU: ART. 3/3 ART. 3/3 TEU DEFINES GOALS OF THE EU, INCLUDING SOCIAL GOALS, SUCH AS: (HIGHLY COMPETITIVE)SOCIAL MARKET ECONOMY, SOCIAL PROGRESS , SOCIAL JUSTICE AND PROTECTION, SOLIDARITY BETWEEN GENERATIONS, ECONOMIC, SOCIAL AND TERRITORIAL COHESION, SOLIDARITY AMONG MEMBER STATES, […] MARKET- OR SOCIAL-MARKET ECONOMY?

  14. TFEU: ART. 14 (COMPARE ART. 16 ECT AND IMPACT OF THE MaT & AmstT) WITHOUT PREJUDICE TO ARTICLE 4 OF THE TEU ORTO ARTICLES 93, 106 AND 107 OF TFEU,AND GIVEN THE PLACE OCCUPIED BY SGEI IN THE SHARED VALUES OF THE EU AS WELL AS THEIR ROLE IN PROMOTING SOCIAL AND TERRITORIAL COHESION, THE EU AND THE MEMBER STATES, EACH WITHIN THEIR RESPECTIVE POWERS AND WITHIN THE SCOPE OF APPLICATION OF THE TREATIES, SHALL TAKE CARE THAT SUCH SERVICES OPERATE ON THE BASIS OF PRINCIPLES AND CONDITIONS, PARTICULARLY ECONOMIC AND FINANCIAL CONDITIONS, WHICH ENABLE THEM TO FULFIL THEIR MISSIONS. THE EUROPEAN PARLIAMENT AND THE COUNCIL, ACTING BY MEANS OF REGULATIONS IN ACCORDANCE WITH THE ORDINARY LEGISLATIVE PROCEDURE, SHALL ESTABLISH THESE PRINCIPLES AND SET THESE CONDITIONS WITHOUT PREJUDICE TO THE COMPETENCE OF MEMBER STATES, IN COMPLIANCE WITH THE TREATIES, TO PROVIDE, TO COMMISSION AND TO FUND SUCH SERVICES.

  15. PROTOCOL (No. 26) ON SGEI THE SHARED VALUES OF THE UNION IN RESPECT OF SERVICES OFGENERAL ECONOMIC INTEREST WITHIN THE MEANING OF ARTICLE 14 OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION INCLUDE IN PARTICULAR: - THE ESSENTIAL ROLE AND THE WIDE DISCRETION OF NATIONAL, REGIONAL AND LOCAL AUTHORITIES IN PROVIDING, COMMISSIONING AND ORGANISING SERVICES OF GENERAL ECONOMIC INTEREST AS CLOSELY AS POSSIBLE TO THE NEEDS OF THE USERS; - THE DIVERSITY BETWEEN VARIOUS SERVICES OF GENERAL ECONOMIC INTEREST AND THE DIFFERENCES IN THE NEEDS AND PREFERENCES OF USERS THAT MAY RESULT FROM DIFFERENT GEOGRAPHICAL, SOCIAL OR CULTURAL SITUATIONS; • A HIGH LEVEL OF QUALITY, SAFETY AND AFFORDABILITY, EQUAL TREATMENT AND THE PROMOTION OF UNIVERSAL ACCESS AND OF USER RIGHTS. THE PROVISIONS OF THE TREATIES DO NOT AFFECT IN ANY WAY THE COMPETENCE OF MEMBER STATES TO PROVIDE, COMMISSION AND ORGANISE NON-ECONOMIC SERVICES OF GENERAL INTEREST.

  16. LISTINA EU O TEMELJNIH PRAVICAH: ČL. 36 THE EU RECOGNISES AND RESPECTS ACCESS TO SGEI AS PROVIDED FOR IN NATIONAL LAWS AND PRACTICES, IN ACCORDANCE WITH THE TREATIES, IN ORDER TO PROMOTE THE SOCIAL AND TERRITORIAL COHESION OF THE UNION. SUABLE (FUNDAMENTAL) RIGHT?

  17. TFEU: ART. 106 (L'obscure clarté? Oui, sans doute! ) 1. IN THE CASE OF PUBLIC UNDERTAKINGS AND UNDERTAKINGS TO WHICH MEMBER STATES GRANT SPECIAL OR EXCLUSIVE RIGHTS, MEMBER STATES SHALL NEITHER ENACT NOR MAINTAIN IN FORCE ANY MEASURE CONTRARY TO THE RULES CONTAINED IN THE TREATIES, IN PARTICULAR TO THOSE RULES PROVIDED FOR IN ARTICLE 18 AND ARTICLES 101 TO 109. 2. 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 THE TREATIES, 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 UNION. 3. THE COMMISSION SHALL ENSURE THE APPLICATION OF THE PROVISIONS OF THIS ARTICLE AND SHALL, WHERE NECESSARY, ADDRESS APPROPRIATE DIRECTIVES OR DECISIONS TO MEMBER STATES.

  18. TFEU: ART. 106/1 “REFERENCE” RULE PUBLIC UNDERTAKING PRIVILEGED UNDERTAKING (ER & SR) 106/1 MEASURE “IN PARTICULAR”

  19. 106/1 TFEU (CERTAIN ASPECTS) • PRO-COMPETITIVE DEREGULATION (FIRST PHASE OF LIBERALIZATION) • -EQUAL TREATMENT OF PUBLIC- & PRIVATE UNDERTAKINGS OR PROHIBITION OF PRIVLEGED TREATMENT OF PUBLIC UNDERTAKINGS? • -INCOMPLETE DEFINITION OF EXCLUSIVE RIGHTS • -(IN)ADMISSIBILITY OF EXCLUSIVE RIGHTS

  20. EXCLUSIVE RIGHTS • DEFINITION (EU COMMISSION): RIGHTS THAT ARE GRANTED BY A MEMBER STATE TO ONE UNDERTAKING THROUGH ANY LEGISLATIVE, REGULATORY OR ADMINISTRATIVE INSTRUMENT, RESERVING IT THE RIGHT TO PROVIDE A SERVICE OR UNDERTAKE AN ACTIVITY WITHIN A GIVEN GEOGRAPHICAL AREA. • CRITICISM (THEORY): -INCOMPLETENESS / IMPERFECTION (“GRANT(ING)” AS AN ACT OF PUBLIC AUTHORITY, DISCRETION), -”LIMITATION” OR FORMAL APROACH (“GRANT” CAN ALSO BE DONE BY PRIVATE LAW ACTS).

  21. SPECIAL RIGHTS RIGHTS THAT ARE GRANTED BY A MEMBER STATE TO A LIMITED NUMBER OF UNDERTAKINGS, THROUGH ANY LEGISLATIVE, REGULATORY OR ADMINISTRATIVE INSTRUMENT, WHICH, WITHIN A GIVEN GEOGRAPHICAL AREA: (I) LIMITS TO TWO OR MORE THE NUMBER OF SUCH UNDERTAKINGS, AUTHORISED TO PROVIDE A SERVICE OR UNDERTAKE AN ACTIVITY, OTHERWISE THAN ACCORDING TO OBJECTIVE, PROPORTIONAL AND NON-DISCRIMINATORY CRITERIA; OR (II) DESIGNATES, OTHERWISE THAN ACCORDING TO SUCH CRITERIA, SEVERAL COMPETING UNDERTAKINGS, AS BEING AUTHORISED TO PROVIDE A SERVICE OR UNDERTAKE AN ACTIVITY; OR (III) CONFERS ON ANY UNDERTAKING OR UNDERTAKINGS, OTHERWISE THAN ACCORDING TO SUCH CRITERIA, ANY LEGAL OR REGULATORY ADVANTAGES WHICH SUBSTANTIALLY AFFECT THE ABILITY OF ANY OTHER UNDERTAKING TO PROVIDE THE SAME SERVICE OR TO OPERATE THE SAME ACTIVITY IN THE SAME GEOGRAPHICAL AREA UNDER SUBSTANTIALLY EQUIVALENT CONDITIONS.

  22. TFEU: ART. 106/2 SGEI PARTICULAR TASK REVENUE-PRODUCING MONOPOLY 106/2 EU INTEREST IN LAW OR IN FACT RELATIONSHIP TO ART. 3 TEU IN 14 TFEU

  23. 106/2 TFEU (CERTAIN ASPECTS) -CERTAIN PHILOSOPHICAL, ETHICAL AND LEGAL ASPECTS -SGEI AS AN DYNAMIC CONCEPT AND PROBLEMS WITH THE DEFINITION -(POTENTIAL) CONFLICT: PERFORMANCE OF PARTICULAR TASK AND APPLICATION OF TFEU/TEU -EU INTEREST -RELATIONSHIP TO ART. 14 TFEU (AND 3/3 TEU)

  24. 106/3 TFEU (CERTAIN ASPECTS) -ART. 106/3 TFEU AS LEX SPECIALIS TO ART. 103 IN 114 TFEU -ART. 106/3 IN 258 TFEU ARE NOT GENERATING (COMPETENCE) CONFLICT

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