From Public to Public: Re-emerging of State Functions in Market Economy?

The borderline between those actions that are non-liberal or still compatible with the internal market law of the European Union seems to be more and more relative nowadays. Recent challenges like the global financial and economic crisis of 2008 or the coronavirus crisis may even strengthen this ambivalence. In spite of expectations of a deeper integration in the Union, a contradictory tendency may arise concerning competitive advantages that are not classified as measures being incompatible with EU law. In the European legislation, we can see a trend for almost two decades that Member States’ governments get more influence in those economic sectors which are subject to regulation at the EU level, and consequently, their discretion has been increasing in specification of compatible conditions. A similar process or at least a step towards the above direction can be seen in each regulatory sector, even if in different degree and intensity. Such a trend may lead to weakening of the integration as a whole, especially as an effect of nationalist powers showing scepticism towards a stronger Europe. Our analysis mainly focuses on changes of European Union rules, in particular on the exemptions which apply to specific public services sectors in the field of energy (electricity and gas), post and telecommunication, waste, water and wastewater. In our view, these changes in the regulatory background have an influential effect on the wider context of competition extending well beyond the scope of the above-mentioned areas including ordinary services of economic interests. As a part of our research, we leveraged an original database containing selected cases completed by the Court of Justice of the European Union (CJEU) between 2000 and 2020. The role of the case-law of the CJEU is assumed to be of particular importance in supporting this line of development. Our paper states that there is a correlation between the extension of derogations from EU internal market and competition rules allowed for Member States, and the tendency of widening discretion in the jurisdiction of the CJEU. In order to prove this statement, our study combines the analytical research with a legal empirical method, specifically a statistical analysis of the case law of the CJEU. The sample selection was focused on decisions where the sector involved or the contested national instruments where relevant from the point of view of our research focus. The cases have been classified according to the form of competitive advantages triggered by the national measures being the subject to the CJEU procedures, as well as according to their outcome. Based on the analysis of the respective categories, we may conclude that the CJEU, within the scope of its discretionary power represent a relatively extensive approach which is rather receptive than rejecting towards Member States’ derogatory instruments. Our paper aims at contributing to the current scientific discussions on the changes in nations’ attitude to the supranational integrations as one of the recent challenges of regulatory governance.