Volume 23 (2012) / Issue 6
In an era where the limits between state (public) and non-state (private) activities become increasingly blurred, the demarcation between the concept of economic and non-economic is forcibly put under strain. Such demarcation, has a special 'constitutional' function within the EU, since it operates as a 'vertical' competence moderator between Member States and the EU. The contribution in hand first discusses whether it is a good idea to have the same concept of 'economic' throughout the Treaty rules (internal market and competition) and finds to the affirmative. Then it goes on to discuss the various concepts and criteria put forward in the political debate, essentially animated by the Commission, in order to distinguish between economic, noneconomic and other types of services (social in particular). Considering that these concepts do not allow for a coherent judicial application, the article turns to the actual practice of the CJEU and finds that the Court very rarely engages into the slippery slope of the nature of the activity, but typically uses other, more technical criteria: the nature of the entity involved, the object of the measure, the existence of mitigating factors and the applicability of exceptions. This finding is substantiated through a comparative examination of the Court's case law in cases involving free movement, public procurement, anti-trust and state aid rules.
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