Chapter 7: Public Services: The Role of the European Court of Justice in Correcting the Market
Leonor Moral Soriano INTRODUCTION The aim of this chapter is twofold. First it studies the influence of one major player in European politics, namely, the European Court of Justice – hereafter referred to as the Court – in the design of the regulatory space in which regulators (institutions) and regulatees interact. Second, it analyses the case law concerning two policies equally embedded in European law, namely competition and public services. This analysis shows that the consideration of public services as a non-market value, and the recognition of their priority over competition speak in favour of the Court’s market-correcting or positive integration1 bias. This finding supports the notion of the Court as a policy catalyst. The analysis of the case law also shows that the Court reinforces the role of national courts in applying European competition law. This coheres with the decentralised European regulatory model in competition. The regulation of public services, such as the utilities services this volume deals with, is dominated by the idea that the influence of market forces ought to be attenuated, because the market is unable to guarantee universal access to the public. This justifies the introduction of market intervention measures such as public monopolies and the granting of special and exclusive rights to privileged undertakings. These forms of intervention clearly hinder the free movement of goods and distort competition.2 Therefore, from the European law point of view, the state’s intervention in the area of public services needs to be tested against the rules for free movement of...
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