Festschrift für Fritz W. Scharpf - MPIfG

Héritier · Containing Negative Integration 111
cating capacity and open up access for goods transported with the core
Community railway network (Railway Package 2001). At the same time, in
all cases of liberalization introduced by the Community, the Commission
points out that a high level of transport services in the general interest has
been ensured. The legislation guaranteeing service on non-profitable routes
allows direct subsidies as long as they are available, on a non-discriminatory
basis, to all carriers operating the route. Alternatively, it allows for the conferral
of exclusive rights to operate a service, with or without compensation
(CEC 2000: 31). Safeguarding public services often requires state aid,
which has to be approved by the Commission. The Commission has
consistently accepted such schemes, providing that they are designed in a manner
least likely to distort trade and competition … For example, if exclusive
rights are put out to open non-discriminatory tender, they are viewed as, in principle,
compatible with the Treaty. (CEC 2000: 31)
In electricity regulation the Commission points out that most member states
– with some exceptions3 – have gone beyond the liberalization requirements
laid out in the directive of 1997 (Electricity Directive 96/92 EC). The directive
provides choices for member states regarding the instruments of implementation
with respect to types of third-party access and unbundling
methods. Most member states have opted for approaches likely to develop
effective competition. The 1997 directive also established provisions to ensure
that essential public service objectives are safeguarded. The Commission
emphasizes that “the maintenance of the highest possible standards
throughout the Community is … an essential precondition for liberalisation”
(CEC 2000: 33; emphasis added). More specifically it states that network
security and reliability have to be guaranteed. While member states
are free to take the measures necessary to ensure the security of supply, they
must also guarantee that vulnerable members of society will not be disconnected
from supply and that public service standards will be upheld through
minimum licensing conditions. If these conditions are not met, the licence
shall be withdrawn (CEC 2000: 34). Moreover, obligations are to be clearly
defined, transparent, non-discriminatory and verifiable, and obligations and
their revisions are to be published and reported to the Commission (CEC
2001: 19).
3 France and Belgium are two such exceptions. Belgium has been brought to Court for incomplete
transposition of the legislation on market opening, because it failed to appoint an
administrator for transport. This, according to the Commission, constitutes a hindrance to
real competition.