Annexes to COM(2011)146 - Reform of the EU State Aid Rules on Services of General Economic Interest

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dossier COM(2011)146 - Reform of the EU State Aid Rules on Services of General Economic Interest.
document COM(2011)146 EN
date March 23, 2011
ANNEX - Legal Instruments Applicable to SGEI by Sector

Air Transport | Not applicable | Applicable[26] | Guidelines on air transport[27] State Aids in the aviation sector[28] | Regulation on the operation of air services[29] Ground-handling directive[30] |

Maritime Transport | Not applicable | Applicable[31] | Communication on ship management companies[32] Communication on motorways of the sea[33] Communication on maritime transport[34] | Cabotage Regulation[35] |

Broadcasting | Not applicable, but principles of sectoral Communication[36] are similar | Applicable to the extent that the conditions provided in Article 2(1)(a) of the Decision are met[37] | Communication on public service broadcasting[38] |

Telecoms incl. Broadband | Applicable, together with guidelines | Applicable | Guidelines for rapid deployment of broadband networks[39] | Framework Directive[40], Universal Service Directive[41] |

Post | Applicable[42] | Applicable, but generally not relevant due to thresholds | 3rd Postal directive (from 2011 onwards)[43] |

Energy | Applicable | Applicable | Third Energy Package including: Electricity market directive[44] Natural gas market directive[45] |

Health | Applicable | Applicable for hospitals irrespective of thresholds[46] |

Social Housing | Applicable | Applicable irrespective of thresholds[47] |

Social Care | Applicable | Applicable |

[1] Commission decision (EC) No 842/2005 of 28 November 2005 on the application of Article 86(2) of the EC Treaty to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest, OJ L 312 of 29.11.2005, p. 67.

[2] Community framework for State aid in the form of public service compensation, OJ C 297 of 29.11.2005, p. 4.

[3] Communication From the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions, Towards a Single Market Act - For a highly competitive social market economy, 50 proposals for improving our work, business and exchanges with one another , COM(2010) 608 final/2 of 11 November 2010.

[4] Article 1 of Protocol 26 to the Treaties.

[5] For a description of social services of general interest see the Commission Communication Implementing the Community Lisbon programme: Social services of general interest in the European Union , (COM(2006) 177 final of 26 April 2006).

[6] More precisely, Article 14 TFEU is "Without prejudice to …. Articles 93, 106, and 107…". It therefore confirms the application in the context of SGEI of these provisions and the measures that have been adopted on the basis thereof.

[7] See below chapter 2.

[8] In the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Accompanying the Communication on "A single market for 21st century Europe" Services of general interest, including social services of general interest: a new European commitment (COM(2007) 725 final), the Commission stated: " Non-economic services : these services, for instance traditional state prerogatives such as police, justice and statutory social security schemes are not subject to specific EU legislation, nor are they covered by the internal market and competition rules of the Treaty. Some aspects of the organisation of these services may be subject to other rules of the Treaty, such as the principle of non-discrimination".

[9] Case C-364/92 SAT Fluggesellschaft [1994] ECR I-43.

[10] Case C-343/95 Diego Calì & Figli [1997] ECR I-1547.

[11] The chart below merely illustrates the different concepts and does not seek to represent the respective size of the economic and non-economic sectors.

[12] Case C-159/91 Poucet et Pistre [1993] ECR I-637; Case C-218/00 Cisal and INAIL [2002] ECR I-691, paragraphs 43-48; Joined Cases C-264/01, C-306/01, C-354/01 and C-355/01 AOK Bundesverband [2004] ECR I-2493, paragraphs 51-55. It is required that the scheme functions according to the principle of solidarity, offering insurance benefits independently of contributions. The Court has however considered that other Treaty provisions (e.g. internal market rules) may be applicable, see case C-350/07 Kattner [2009] ECR I-1513.

[13] Case C-280/00 Altmark Trans GmbH and Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft Altmark GmbH [2003] ECR p. I-7747.

[14] Article 14 TFEU applies without prejudice to these provisions.

[15] See the Annex to this Communication.

[16] Annex 1 of Commission Communication COM(2010) 623, Commission Work Programme 2011, 27.10.2010, p. 4.

[17] Press Release Memo/10/393, Letter by President Barroso to the Members of the European Parliament , 07.09.2010.

[18] See section 4.2 below.

[19] See section 4.3 below.

[20] SEC(2010) 1545 final of 7 December 2010.

[21] Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid, Official Journal L 379 of 28.12.2006.

[22] Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70, OJ L 315, 3.12.2007, p. 1; Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community, OJ L 293, 31.10.2008, p. 3; Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services, OJ L 52, 27.2.2008, p. 3; Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services.

[23] See article 5 of the SGEI Decision and section 2.4 of the SGEI Framework.

[24] Commission Communication C(2008) 184, Community guidelines on State Aid for railway undertakings, OJ C 184 of 22.7.2008, pp. 13-31.

[25] Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road, OJ L 315 of 3.12.2007, p 1-13. This Regulation allows and exempts from notification compensation granted in accordance with a number of requirements, which usually include a tendering obligation.

[26] SGEI providers in this sector can benefit from the exemption if they meet either the general thresholds (EUR 100m turnover, or EUR 30m compensation) or specific thresholds based on the number of passengers.

[27] Communication from the Commission of 9 December 2005, Community guidelines on financing of airports and start-up aid to airlines departing from regional airports, OJ C 312 of 9.12.2005, p. 1.

[28] Application of Articles 92 and 93 of the EC Treaty and Article 61 of the EEA Agreement to State Aids in the aviation sector, OJ C 350 of 10.12.1994, p. 5-20.

[29] Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community, OJ L 293 of 31.10.2008, p. 3-18.

[30] Council Directive 96/67/EC of 15 October 1996 on access to the ground handling market at Community airports; OJ L 272 , 25/10/1996, p. 36.

[31] SGEI providers in this sector can benefit from the exemption if they meet either the general thresholds (EUR 100m turnover and EUR 30m compensation) or specific thresholds based on the number of passengers.

[32] Communication from the Commission providing guidance on State aid to ship management companies, OJ C 132 of 11.6.2009, p. 6.

[33] Communication from the Commission providing guidance on State aid complementary to Community funding for the launching of the motorways of the sea, OJ C 317 of 12.12.2008, p. 10.

[34] Communication from the Commission C(2004) 43, Community guidelines on State aid to maritime transport, OJ C 13 of 17.1.2004, p.3.

[35] Council Regulation EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage), OJ L 364, 12.12.1992, pp. 7–10.

[36] Communication from the Commission on the application of State aid rules to public service broadcasting, OJ C 257, 27.10.2009, p. 1–14.This Communication explains how the Commission applies the basic principles contained in the Protocol No. 29 on the system of public broadcasting in the Member States annexed to the TEU and to the TFEU

[37] As stipulated in para. 19 of the Communication on the application of State aid rules to public service broadcasting, OJ C 257, 27.10.2009, p. 4.

[38] Communication from the Commission on the application of State aid rules to public service broadcasting, OJ C 257 of 27.10.2009, p. 1; Communication from the Commission on the application of State aid rules to public service broadcasting, OJ C 320 of 15.11.2001, p. 5.

[39] Communication from the Commission, Community Guidelines for the application of State aid rules in relation to rapid deployment of broadband networks, OJ C 235 of 30.9.2009, p. 7.

[40] Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services, OJ L 108, 24.04.2002, pp. 33-50

[41] Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services, OJ L 108, 24.04.2002, p. 51-77

[42] To be noted that pursuant to point 4 of the SGEI Framework, stricter rules contained in the sectoral Directives (which come into force in 2011) are to be respected.

[43] Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services, OJ L 52 of 27.2.2008, p. 3.

[44] Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC, OJ L 211 of 14.8.2009, p. 55.

[45] Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC, OJ L 211 of 14.8.2009, p. 94.

[46] Article 2(b) of the SGEI Decision.

[47] Article 2(b) of the SGEI Decision