Volume 30 (2007)

Volume 30 (2007) / Issue 1

Orla Lynskey, 'The Application of Article 86(2) EC to Measures Which do Not Fulfil the Altmark Criteria; Institutionalising Incoherence in the Legal Framework Governing State Compensation of Public Service Obligations' (2007) 30 World Competition, Issue 1, pp. 153–168


Whether or not state compensation for the performance of public service obligations constitutes aid is a

question to which consistent answers have not been forthcoming.

In its Altmark Trans judgment the Court made an attempt to definitely settle this issue when it held that

state compensation for the undertaking of public service obligations does not confer an advantage on

undertakings if the four criteria set out in that judgment are fulfilled. However, this conditional answer

provided by the Court to this question opened a different can of worms. The Altmark criteria overlap with

those found in Article 86(2) EC begging the question; did Altmark incorporate the Article 86(2) EC

derogation into the Article 87(1) EC concept of advantage? The Commission’s position is clearly set out in

its Monti package; it considers that the exception may be applied after the Altmark criteria. By permitting

the application of the same legal criteria twice, the Commission runs the risk of applying these criteria in an

inconsistent manner. This article sets out to examine the ramifications the Altmark judgment has had on the

legal certainty of the Community’s state aid regime. In this regard, particular emphasis will be put on the

Commission’s recent ’’Monti package’’ to examine whether it has cleared up any remaining confusion post-

Altmark.This article has been shortlisted for the 2nd World Competition Young Writer’s Award.

Copyright © 2007 Kluwer Law International
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ISSN: 1011-4548
ID: WOCO2007008