A Critical Account of Article 106(2) TFEU: Government Failure in Public Service Provision

Antitrust / Competition Law

A Critical Account of Article 106(2) TFEU: Government Failure in Public Service Provision

By Jarleth M. Burke
Hart Publishing March 2018

Specifications

ISBN-13
9781509912759
Publisher
Hart Publishing
Publication
March 2018
Format
Hardback
Jurisdiction
U.K. ? Countri(es) for reference only

Also available as

Paperback

Details

Article 106(2) TFEU is an enigma. It provides for the disapplication of any Treaty rule with respect to Services of General Economic Interest (SGEIs).

On the one hand, it is said to be an indispensable mediation mechanism between market and non-market objectives. On the other, in respect of the qualification of activities as SGEIs, the General Court has declared that there are no controlling principles. The operation of Article 106(2) has been a source of enduring political, legal and economic controversy.

This book enters that debate with an active scepticism towards conventional understandings of the provision, and deploys a novel criticality and a law and economics approach to expose the inner workings of Article 106(2). It also offers a prescription for a more practical rendering of this intriguing provision.

Table of Contents

1. In the General Interest?
A. Introduction
B. The Nature of the Problem
C. The Mechanics of Article 106(2)
D. The Essence of Government Failure and its Cost
E. This Book
2. The Pathology of Government Failure
A. Introduction
B. Government Failure and Market Failure
C. The Constitutional Grounding for Government Failure Control Under Article 106(2)
D. Approaches to Government Failure
E. Government Failure Under Article 106(2)
F. Conclusions
3. The Contestation and Indeterminacy of Article 106(2)
A. Introduction
B. The Political, Constitutional and Administrative Battleground
C. Accounts of Article 106(2)
D. Conclusions
4. A Most Contingent Exemption
A. Introduction
B. Contestation—The Scope of Article 106(2) Ratione Materiae
C. Competition—The Free Movement Derogations
D. Subordination—The State Aid Rules
E. Conclusions
5. Government Failure in Assessing Market Feasibility
A. Introduction
B. Telecommunications
C. Environmental Protection
D. Broadcasting
E. Conclusions
6. Government Failure in Disapplication Review
A. Introduction
B. The First Phase—The Strict Exception
C. The Second Phase—Permissive Derogation
D. The Third Phase—Partial Revival
E. Conclusions
7. Contours of a Better Exemption
A. Introduction
B. Government Failure Redux
C. Proposals for a Reorientation of the Law with Respect to SGEIs
D. Concluding Observations
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