Case C-205/99, Asociación Professional de Empresas Navieras de Líneas Regulares (Analir) and Others v. Administración General del Estado

Abstract:

The subject of public service obligations has been on the Community agenda ever since the liberalization efforts were launched seriously in the late 1980s and the early 1990s. The concept of public service obligation was canonized in Article 16 EC with the Treaty ofAmsterdam. Whilst public service obligations further important general interest objectives, they limit, by their very nature, the freedom of individual market operators and thus a clear definition is vital for the delimitation between the public and the private sector. So far the debate has centred largely on the proper relationship between the discretion of Member States’ governments to define such obligations and the limits imposed by Community law, mainly Article 86(2) EC, but also specifications in secondary legislation, such as those relating to the internal market in electricity and natural gas or access for Community air carriers.

The Analir judgment does not deal with substantive issues related to public service obligations (PSOs) but rather outlines the procedural powers and obligations that Member States have to observe when establishing them. As such the judgment fills an important void that has never satisfactorily been addressed in secondary legislation dealing with PSOs. The Analir judgment therefore is very welcome as it provides procedural guidance for all instances where the establishment of PSOs is allowed: those envisaged in Article 86(2) as well as in several instruments of secondary legislation. The ECJ provided further guidance in this matter in its golden share judgments of 4 June 2002.