State conduct and intervention—liability of state and public bodies under EU law
Produced in partnership with Suzanne Rab of Serle Court

The following Competition practice note produced in partnership with Suzanne Rab of Serle Court provides comprehensive and up to date legal information covering:

  • State conduct and intervention—liability of state and public bodies under EU law
  • State intervention in the economy and liberalisation
  • Public bodies as undertakings
  • Article 4(3) TEU—the duty of sincere co-operation
  • Article 106(1) TFEU—State measures
  • Public undertakings
  • Special or exclusive rights
  • Article 106(1) and abuse of a dominant position
  • Article 106(1) TFEU and Article 101 TFEU
  • Article 106(2) TFEU—the derogation for ‘services of general economic interest'
  • More...

State conduct and intervention—liability of state and public bodies under EU law

State intervention in the economy may interact with EU Treaty obligations, most notably the duty of loyalty under Article 4(3) TEU and Article 106 TFEU. For example, the state may incur liability under Article 4(3) TEU or Article 106(1) TFEU where its actions result in or are likely to lead to an infringement by an undertaking of the competition rules contained in Article 101 or 102 TFEU.

Article 106(2) TFEU contains a limited exception from the TFEU rules in favour of undertakings entrusted with the operation of services of general economic interest (SGEI) or which have the character of a revenue-producing monopoly.

There are also situations where the public body may itself be held to be engaging in economic activity such that it is a relevant ‘undertaking’ for the purposes of competition law.

State intervention in the economy and liberalisation

The ownership and delivery of public services such as energy, postal services, telecommunications and transport have undergone significant structural change and the Commission has been instrumental in opening up these markets to competition.

At the same time, the pace and shape of this ‘liberalisation’ differs by sector and across the Member States. In some sectors such as telecommunications it has been easier to progressively open up markets to competition, particularly in segments which are contestable because they do

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