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Thus though the prohibited activities within Article 86(1) are Member State measure, the substantial concerns we should pay are behaviors of public undertakings and privileged undertakings economically performing such State measure. That is to say, Article 86(1) in nature puts its concerns to economic activities of public undertakings or privileged undertakings. But for performing these activities such undertakings are certainly or necessarily in the role of public authorities. Therefore the nature of activities carried by these undertakings is distinct from that done by purely market-orientated undertakings in the meaning of Article 81 and 82. Furthermore the status of these undertakings is created intentionally by Member State and not automatically by market, so that it is Member State, not pubic undertaking or privileged undertakings themselves, who must take the final responsibility for the activity of these undertakings. The reasoning implied in Article 86(1), in my humble mind, is that a treaty drafted at economic level, like EC Treaty, can not apply to activities exercising administrative power itself by Member States . However the effect, especially economic effect, of exercising such power falls into the scope of the Treaty.
According to the foregoing part, although in INNO v. ATAB , the Court of Justice stated that Article 86(1) was only a particular application of certain general principles which bind the Member States, we can claim that such argument is somewhat simplify this problem. If we simply claim that the addressee of Article 86(1) is Member State, it will be somewhat incomplete and such expression would produce more confusions which were mentioned above. Conclusively as regards the addressee of Article 86(1) the complete or appropriate expression should be that although the addressee who take the final liability is Member State, the anti-competitive activity yet are carried out directly by public or privileged undertakings. And it is such special characteristics of Article 86(1) that produced the particular method to applying it.
3. How to Delimit ‘Any Measure’?
Although Article 85(1) concerns activities of public or privileged undertakings, of course not all behaviors of public undertakings or privileged undertakings fall into the scope of Article 86(1). Only activities of these undertakings with the nature of exercising ‘power’ granted by Member States are concerns of Article 86(1). Other economic activities of public undertakings and privileged undertakings will find their applicable law in Article 81 and 82.Thus comes into being anther legal problem how to distinct the difference between the two activities either of which is carried out by public undertakings or privileged undertakings, one is characterized as State measure subject to Article 86(1) and the other are measures of a commercial nature subject to Article 81 or 82. As regards this field, Dr. Jose Luis Buendia Sierra has made a valuable contribution.
Firstly he brought forth two formative doctrines for us. The most general doctrine is
-Economic / non-economic doctrine.It, as goal of the Treaty, means that Article 86(1) only applies if the State measure relates to one or more entities that exercise an ‘economic activities’. The State measure itself must of course have a regulatory nature, but the activities, which is being regulated by that measure, must be of an economic nature. Thus regulatory measures relating to non-economic activities are not covered by the Treaty, certainly including Article 86(1).
However, unfortunately the distinct between economic and non-economic activities is particularly vague in public sectors. Utilities, such as telecommunications, energy, transport, or postal services, clearly have an economic nature. But other public activities, such as health, social security or education, have a less clear status. To differentiate economic or non-economic activities Dr. Jose Luis Buendia Sierra considered that the Court develop a new doctrine which is
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