The European Courts’ Jurisprudence after Altmark; Evolution or Devolution?

Abstract

This paper reviews the European Courts' jurisprudence since Altmark. In this judgment the Court had to decide on the status of public financing of services of general economic interest. Such financing could be seen as a state aid within the meaning of Article 107 TFEU or rather as a compensation for certain costs that does not entail an advantage and thus falls outside the scope of Article 107 TFEU. We find that the Courts have opted for a mixture of the state aid and compensation approach that was later modified to take into account the complexities of Member State regulations of services of general economic interest. Notably the Courts' application of the fourth Altmark criterion (relating to the tendering or benchmark to ensure efficiency) has resulted in some controversy. We find that the modification or even disapplication of this criterion that is seen in BUPA and Chronopost disappears whenever an undertaking entrusted with a service of general economic interest is accused of engaging in actions contrary to the antitrust rules enshrined in Articles 101 and 102 TFEU. This compensates the negative effects that BUPA and Chronopost have on the judicial protection afforded to competitors of the undertaking delivering the service of general economic interest.