Social Services of General Interest (SSGI)

Eilmansberger/Herzig
services which cannot be provided in the market. This raises State aid considerations and is
thus of relevance under Community law. 112 On the other hand regulatory interventions may
also involve special or exclusive rights granted to those providing services of general interest
and intended to enable them to offer their services to the extent desired by public authorities.
Granting special or exclusive rights within the meaning of Art 86(1) EC is not in itself
incompatible with competition rules under Community law. However, a Member State will be
in breach of Community law, or more precisely, of Art 82 EC
• if the undertaking concerned has been accorded a dominant position within the
market, and
• if this undertaking, merely by exercising the exclusive rights granted to it, is led to
abuse its dominant position or where such rights are liable to create a situation in
which that undertaking is led to commit such abuses. 113
An undertaking has a dominant position within the market if this enables the
undertaking concerned to hinder the maintenance of effective competition on the relevant
market by allowing it to behave to an appreciable extent independently of its competitors, its
customers and, ultimately, consumers. As a rule, such a privileged position will not exist
whenever there are many providers active on the market concerned. However, the situation
may be assessed differently if these operators are only a few associations (also legal entities
under public law), all the more so if their activities – as is often the case in the social sector –
are coordinated and guided by requirements under public law. From an economic point of
view, as is appropriate to antitrust law, one could ask the question whether these associations,
and the members they are composed of, constitute an economic unit irrespective of their legal
independence. But even if one assumes that these associations are independent of each other,
this will not fully exclude the possibility of a dominant position within the market. Under
European antitrust law a dominant position may also be held by several undertakings. The
question of whether any collective dominant position exists is to be answered in the
affirmative whenever the individual entities concerned are connected by such economic links
that they present themselves as a collective entity vis-à-vis their competitors or patients. 114
However, the links must be such that the undertakings concerned adopt a uniform conduct on
the market. These would include both contractual 115 and structural ties, for instance in the
form of personal links at management level 116 .
As far as the second of the above conditions is concerned, an abuse of dominant
position according to case-law includes situations where the entity holding such a dominant
position prevents competitors or third parties from providing the services it performs on the
market in question. In the Ambulanz Glöckner case the ECJ made clear that the adoption of a
legislative measure, the application of which involved prior consultation on whether there was
any need for the service applied for authorisation, could constitute such an act of
restriction. 117 This is also logical since a needs test, as the one involved in this case, is an
112
for details see I.3.5 immediately below.
113
see Joined Cases C-180/98 – C-184/98, Pavel Pavlov and Others, ECR 2000, I-6451, par. 127; and Case C-
475/99, Ambulanz Glöckner, ECR 2001, I-8089, par. 39 f.
114
see Joined Cases C-395/96 and C-396/96, Compagnie Maritime Belge Transports and Others v
Commission, ECR 2000, I-1365, par. 39.
115
see Joined Cases C-395/96 and C-396/96, Compagnie Maritime Belge Transports and Others v
Commission, ECR 2000, I-1365, par. 45; Commission Decision 1999/329/EC, P&I Clubs, OJ 1999 L
125/12, par. 122 .
116
for more details see Case T-228/97, Irish Sugar v Commission, ECR 1999, II-2969, par. 51 f.
117
Case C-475/99 Ambulanz Glöckner, ECR 2001, I-8089.
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