Browsing by Author "Inki, Katri Maria"

The aim of this research is to examine the sphere of legitimate State measures. Member States intervene in many ways in the operation of the internal market and in the activities of private undertakings. When public authorities exercising public powers take measures, which can affect the competition between private entities, the pursuit may lead to the distortion of competition within the internal market. Similarly, fundamental freedoms can be restricted, if access to the market is prohibited or rendered less attractive. The main legal instrument of this study is Article 106(1) TFEU, which prohibits Member States from circumventing Treaty rules by granting tasks of public authority to public or private undertakings. The provision will be assessed as regards to competition law (Article 102 TFEU) and fundamental freedoms (Article 49 TFEU regarding freedom of establishment and Article 56 TFEU regarding freedom to provide services). In addition, Article 106(2) TFEU, which provides a derogation from Treaty rules for the Member States in certain situations, will be addressed. State measures which violate the above-mentioned Articles can in some cases be justified in order to pursue the Union’s objective of social market economy. They can be regarded legitimate when they are correcting market failures on areas where certain important activities or services would not be provided merely by the market mechanism. In addition, justifications based on overriding reasons of general/public interest, may materialize when restricting fundamental freedoms. In summary, the first research question is whether State measures create obstacles to the internal market. Additionally, it will be examined, when State measures can be justified. Often the CJEU carries out a balancing act between the restrictive measure and a possible justification. In the end, the fulfilment of fundamental freedoms will be assessed in cases related to State measures, by applying the market access test.