EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

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.” Pursuant to this provision, operation of SGEIs is subject to the same competition rules as other commercial services, unless that would prevent their providers from carrying out the tasks assigned to them. However, this exception, like any other exception to the general rule, must be interpreted restrictively according to the settled case law of the Court of Justice of the EU (CJEU) (see C-159/94), so that the provision of SGEIs will in principle be subject to all competition rules, including the prohibition of granting state aid under Article 107 TFEU. This also applies to the field of air transport, as air transport is (unlike, for example, rail transport) expressly excluded from the legal regulation of the common transport policy by virtue of Article 100(1) TFEU and, in accordance with the settled CJEU case law (in particular, C-209/84 to C-213/84, para 41), is subject to all the general competition rules contained in Article 101 et seq . TFEU, including the aforementioned Article 106(2) TFEU. More detailed regulation of operation of air services is contained in Regulation (EC) No 1008/2008 (Air Services Regulation), which, as a key aviation legislation, regulates besides licensing of Community air carriers also operation of intra EU air services, pricing of intra-EU air services and operation of air services as SGEIs (i.e., under PSO). The operation of air services as a SGEI within the EU, including the entrustment of the air operator, is therefore only possible based on the Air Services Regulation. While only in specific cases, it may be excluded due to its character from application of general competition rules based on the “subsidiary” provision of Article 106(2) TFEU (Schmauch, 2012, pp. 109). 3.1 Operation of air transport under PSO The operation of air services under PSO constitutes an exception to the liberalized area of EU air transport, in which Community air carriers have the right to operate intra-EU air services in principle without restriction (Article 15(1) of the Air Services Regulation). The operation of air services under PSO, including the entrustment of the air carrier with PSO, which is a key prerequisite therefor, is thus only possible under the Air Services Regulation and subject to the strict substantive and procedural conditions set out in Article 16 et seq . of this regulation. 3.1.1 Open and restricted PSOs The Air Services Regulation is based on the principle that any air carrier which expresses an interest in operating a route at its own risk and which fulfils the

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