EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

(Art. 15 of Directive 2009/138/EC; Art. 26, Art. 49 and Art. 56 of TFEU), which is the direct infringement of EU provisions. 3) It bears signs of illegal and prohibited State aid (Article 107 (1) of TFEU). State aid, which is incompatible with the internal market, is regulated by Art. 107 (1) TFEU. Decision-making practice, as well as theory, identifies the following 4 characteristics (attributes) of state aid (Sciskalová, 2014, p. 224): 1) measure (aid) granted by a State or through State resources, in any form; 2) economic advantage to the particular undertaking (business) or sector (industry) (confers a selective advantage to certain undertakings or the production of certain goods); 3) threat of disruption or distortion of competition within the internal market of the EU; 4) effect on trade between the EU Member States. It is settled case-law that, for a measure to be classified as State aid (Vasbek, 2019, p. 630–631), it must not only (1) be attributable to the State but also (2) be granted through State resources, be it directly or indirectly. These are therefore distinct and cumulative criteria. Regarding the first criterion, we should agree that the criterion of attributability refers to the involvement of the State in the adoption of the measure, which will typically be obvious if it results from the legislation. For example, CJEU (Case C-262/12) states that it is clear if the measure was established by Law, it must therefore be regarded as attributable to the State (para 18). In our case, we can directly see this criterion, because granting a monopoly to PVZP was done by the amending Act. Regarding the second criterion, in fact, it is far from that simple if no transfer of state resources takes place. However, in Case C-262/12, CJEU regarding the sub-criterion of whether state resources were involved, recalled that measures not involving a transfer of state resources may constitute an aid (para 19). Granting the exclusive right to provide insurance services for foreigners confers a selective advantage to PVZP for a period of 5 years in Czechia. Regarding distortion of competition within the internal market of the EU and the effect on trade between the EU Member States: the new amendment directly excluded any insurance company from the Czech insurance market for foreigners. This amendment does not allow other insurance companies (ERGO from Germany, AXA from France, UNIQA from Austria, Maxima and Slavia from Czechia) to provide insurance services for foreigners. These companies under Art. 4 of the Czech Act of Insurance (Act No. 277/2009) can operate because: 1) they have been granted authorization by the Czech National Bank; 2) based on the right to establish or on the freedom to provide services. However, in this case, they find themselves illegitimately excluded from doing business as stipulated as part of the so-called single European passport. Granting PVZP monopoly powers does not fall under Article 107(2)(b) and 107(3)(b) of TFEU about state aid in exceptional circumstances, neither does

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