División del problema

1) TFEU. They are the core elements of Article 106 TFEU. The two concepts were jointly defined in an EU ublic authority to one or more public or private bodies through any legal, regulatory or administrative

t56 and Telecommunications Services cases.57 The Commission decided in Directive 88/301/EEC58

or exclusive rights granted to undertakings ‘for the importation, marketing, connection, bringing into service of telecommunications terminal equipment,

was void and that neither the provisions of the Directive nor the preamble thereto specified

a result, the term ‘business operators’ in the AML in essence mirrors that of the term ‘undertaking’ in EU competition law.

4. The Relationships between Undertakings and Public Authorities

Special rights and exclusive rights are jointly mentioned in Article 106(

Commission Directive that ‘the rights granted by a Member State or a p

instrument reserving them the right to provide a service or undertake an activity.’54 However, The Court declined to treat the two concepts as synonymous, and instead decided to distinguish special rights from exclusive rights in the following cases.55

4.1.1 Special Rights

The concept of ‘special rights’ was defined in the Telecommunications Equipmen

to withdraw special

and/or maintenance of such equipment from Member States’. In Telecommunications Equipment, the CJEU, in the context of special rights, declared that Directive 88/301/EEC

54

Commission Directive 90/388/EEC on competition in the markets for telecommunications services e Article 1.

Italy v Commission of the European Communities [1992] ECR

56 57

C-271, 281 and 289/90, Spain, Belgium & Italy v Commission of the European Communities,

t [1988] OJ L131/73. See Articles 1 & 2. [1990] OJ L192/10-16. Se

55

See Case C-202/88, France v Commission of the Communities [1991] ECR I-1223; Joint Cases C-271, 281 and 289/90, Spain, Belgium &

I-5833.

Case C-202/88, France v Commission of the Communities, note 55. Joint Cases

note 55. 58

Commission Directive 88/301/EEC on competition in the markets in telecommunications terminal equipmen

w thin a given geographical area.

nal and non-discriminatory criteria, or

erwise than according to such

ed activities in the same geographical area under substantially equivalent conditions.

Although in Directive 94/46/EC, special rights were defined in relation to the telecommunications field, the definition also applies to other fields.62 There are two

im d

num a

sol h

the undertakings in the same

the type of rights violated in the various provisions of the Treaty.59 In later cases, the Court made it clear that Directive 90/338/EEC applied only in relation to exclusive rights, and the Directive was annulled in so far as it purported to govern special rights.60

The term ‘special rights’ was finally defined in the field of telecommunications in Directive 94/46/EC61:

Special rights are in practice rights that are granted by a Member State to a limited number of undertakings, through any legislative, regulatory or administrative instrument which, i

- limits to two or more the number of such undertaking, otherwise than according to objective, proportio

- designates, otherwise than according to such criteria, several competing undertakings, or

- confers on any undertakings or undertakings, oth

criteria, legal or regulatory advantages which substantially affect the ability of any other undertaking to engage in any of the abovemention

portant requirements to this definition. First, the rights should be granted to a limite ber of undertakings, which means at least two undertakings. The rights granted to e undertaking are not in the content of special rights. Second, the undertakings to whic special rights have been granted should be competing

geographical area and under substantially equivalent conditions.

See Case C-202/88, France v Commission of the Communit 59

ies, note 55, paras. 45-47.

of the European

61

13 October 1994 amending Directive 88/301/EEC and Directive 62

60

See Joint Cases C-271, 281 and 289/90, Spain, Belgium & Italy v Commission

Communities, note 55, paras. 28-34.

Commission Directive 94/46/EC of

90/388/EEC in particular with regard to satellite communications. See A. Jones and B. Sufrin, note 27, at 575-576.

owever, the concept of exclusive rights was not clearly re-defined, even though exclusive rights were separately

r example, in Ahmed Saeed,64 Höfner, Merci Convenzionali, RTT, Corbeau.

given geographical area.

However, there is a defect in this definition. The contested activity of the undertaking’s

trary to the rules of Articles 101 and 102 is the basic requirement of Article 106(1)

TF ic

und s

con er

Ar a private undertaking can also operate under the

4.1.2 Exclusive Rights

Similarly, like special rights, exclusive rights were separately defined in Telecommunications Equipment and Telecommunications Services cases. As mentioned above, the CJEU in Telecommunications Services alleged that the definition of ‘special and exclusive rights’ was only in relation to exclusive right.63 H

used in several cases, fo

The concept of exclusive rights was modified in Directive 94/46/EC. It stated in Article 2 that:

‘[e]xclusive rights’ means the 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 telecommunication service or undertake an activity within a

reserved exclusive right should be an economic activity. Conduct of an undertaking which is con

EU. According to the analysis of the concept of public undertaking above, a publ ertaking sometimes may have an obligation to undertaking social functions and in thi text, the public undertaking does not fall within the meaning of ‘undertaking’ und ticles 101 and 102. Furthermore,

principle of ‘solidarity’, and in such cases the activity is not considered an economic activity. As a result, to constitute ‘exclusive rights’, it should be made clear that the activity in question should be an economic activity of an undertaking granted exclusive rights.

63

See para. 1.3.3.1 64

Case C-66/86, Ahmed Saeed Flugreisen and Silver Line Reiseburo GmbH v Zentrale zur Bekampfung

ngle undertaking was granted with exclusive rights.66 However, there are two exemptions. In

To distinguish ‘exclusive rights’, there are five other conditions to be highlighted. Firstly, the right is granted by Member States through State measures. Second, the owner of the rights should be an undertaking engaged in an economic activity. The rights enjoyed by a single undertaking, either private or public, for the social functions or solidarity principle, are not ‘exclusive rights’ in the context of Article 106 TFEU. Third, there is only one beneficiary of the contested exclusive rights in a single case.65 In most cases, only a si

the Greek Oil Monopoly case,67 the State had a refining monopoly to control both the volume of imports of crude oil intended for refining and the conditions under which those imports were carried out. Companies engaged in the distribution of petroleum products were required to obtain their supplying rights exclusively from the State. In the FFAD case,68 there were three undertakings which shared exclusive rights of collecting waste for recycling in Copenhagen.69 The final aspect is the effect of exclusive rights. While an exclusive right is granted to an undertaking, this right cannot be granted to any other undertakings. An undertaking with exclusive rights can deny the benefits conferred by the rights to its competitors, although the undertaking may also have the right to allow the existence of competitors. Moreover, exclusive rights may not lead to a dominant position of an undertaking. A dominant position of an undertaking also depends on the content of the relevant market in specific cases. Creating a dominant position by the grant of the exclusive right may not be contrary to the Treaty.70 To conclude, exclusive rights are the rights granted by the State to an undertaking for carrying out of economic activities on an

65

For example, Alison Jones and Brenda Sufrin defined ‘exclusive rights’ that ‘[t]hey exist where a

66

ne Reiseburo GmbH v Zentrale zur

67

ic Republic [1990] ECR 4789.

3743, 69

Jones and B. Sufrin, note 27, at 575.

monopoly has been granted by the State to one entity to engage in a particular economic activity on an exclusive basis’ in their book, A. Jones and B. Sufrin, note 27, at 575; Jose Luis Buendia Sierra stated as ‘a measure taken by a Member State in the exercise of its functions as a public authority, by which exclusivity is granted through any legal instrument in favour of a single undertaking, public or private, …’ in his book, J. L. Buendia. Sierra, note 1, at 6.

See Case C-66/86, Ahmed Saeed Flugreisen and Silver Li

Bekampfung Unlauteren Wettwerbs eV, note 64; Case C-41/90, Höfner v. Marcrotron, note 10; Case

C-260/89, Elliniki Radiophonia Tileorassi Anonimi Etaira (ERT) v Dimotiki Etairia Pliroforissis (DEP), note 13; Case C-179/90, Merci Convenzionali v. Porto di Genova, note 10; Case C-18/88, RTT v.

GB-INNO-BM SA, note 15; and Cases C-320/91 Corbeau, note 10.

Case C-347/88, Commission of the European Communities v Hellen 68

Case C-209/98, Entreprenorforeningens Affalds (FFAD) v Kobenhavns Kommune [2000] ECR I- [2001] 2 CMLR 936.

It also mentioned in A. 70

t are transferred from Member States to the undertaking concerned. An undertaking has the freedom to choose whether or not to apply these rights, although ion of market benefit from the rights thereof. ‘The Treaty nonetheless requires the Member States not to adopt or maintain

enforcement effect are broadly used in Articles 32 to 36 of the AML. A result of the legacy exclusive basis.71