4 - Public constraints on private parties and private constraints on public measures

Summary

Introduction

Above, we have discussed the free movement and competition rules separately, focusing on how the scope of these respective rules is determined in relation to the addressees for which they were originally intended – i.e. free movement for Member States and competition rules for undertakings. This showed that the Court tends to apply a functional approach to formal categories of public bodies and undertakings. As illustrated by the functional approach to the concepts of ‘public bodies’ and ‘undertaking’, the net result is that the competition rules can be applied to ‘public authorities’ and the free movement rules to private parties. More recently, however, the Court's functionalism is increasingly qualified by subsidiarity and pre-emption. The nature of the constraints that follow from this development, and their limits, will now be elaborated.

The focus of this chapter is on the cross-cutting application of the free movement and competition rules. This discussion is organised in four main parts dealing with the following topics:

1. – the application of the free movement rules to private parties;

2. – the application of the competition rules to State measures;

3. – when behaviour should be attributed to the State, and when to undertakings;

4. – the relationship between the free movement and the competition rules directly.

As before, the main questions remain: how (i.e. according to which criteria) the Court attributes measures to either the public or private sphere; how it establishes whether the free movement and competition rules are applicable; and how it decides whether public interest exceptions and/or justifications apply, and what their scope is.