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According to case law of ECJ the Court likely considered economic equilibrium with the same meaning as proportionality, as leads to a difficult understanding. For the convenience of academic research in this paper, I would like to define economic equilibrium principle in a narrowly sense as the activities concerned to exclude competition could be justified to the extent that no other technically and economically feasible means of performing its particular task. According this definition sectors close to Member States and less subject to Community intervention would fall outside this test. And services which the Community desires to liberalize would be exposed to such inflexible approach.
When investigating such inflexible practices in the pre-existing case law, one would find that as a matter of a fact the Court took not so much really economic methods as value judgment. Therefore exploiting economic equilibrium principle looks more like waving a flag. Once the Court require the exclusivity in question to justify their anti-competitive behavior by an economic approach, it is a sign that the service in question probably would suffer from the fate of be liberalized in the end. In terms of the random exercising economic equilibrium principle case by case and sector by sector it is very hard to synthesize the practice of the Court. Hence this part only aims to indicate such circumstances and cannot do any more.
Manner of this kind can be firstly obviously found in Ahmed Saeed case. In this case the Court protested that ‘admittedly, in the preamble to Regulation No 3976/87 the Council expressed a desire to increase competition in air transport services between Member States gradually so as to provide time for the sector concerned to adapt to a system different from the present system of establishing a network of agreements between Member States and air carriers. However, that concern can be respected only within the limits laid down by the provisions of the Treaty.’ It is, in my view, the very concern and legal basis of the Court to make its following decision. Supposing this argument is true, it is of much ridiculousness that the Court subsequently admitted that ‘indeed, where there is no effective transparency of the tariff structure it is difficult, if not impossible, to assess the influence of the task of general interest on the application of the competition rules in the field of tariffs’ , at the same time it required ‘the national authorities responsible for the approval of tariffs and the courts to which disputes relating thereto are submitted must be able to determine the exact nature of the needs in question and their impact on the structure of the tariffs applied by the airlines in question’ . In as much the Court can not carry out such analysis, I do not know how the national court can possess this economic capacity to implement economic equilibrium principle. It definitely would get national court in a headache.
It is indeed hard for the operators of services of general economic interest to carry out a strictly economic equilibrium approach to justify themselves. And it is even more difficult, if not impossible, to prove that there is no less restrictive method to perform services of general economic interest. For the sake of relieving the difficulty of burden of proof, in Netherlands electricity case, the Court alleged that ‘burden of proof cannot be so extensive as to require the Kingdom of the Netherlands, which has set out in detail the reasons for which, in the event of elimination of the contested measures, the performance, under economically acceptable conditions, of the tasks of general economic interest which it has entrusted to an undertaking would, in its view, be jeopardized, to go even further and prove, positively, that no other conceivable measure, which by definition would be hypothetical, could enable those tasks to be performed under the same conditions’. Nevertheless the question was far from settled? Does it imply that the Court would finally abandon the approach of no less restrictive means? The answer is definitely negative. Such practice in this case cannot shed any light to the future cases. And its effectiveness in, in my view only limit to this specific case in electricity sector and no more.
For instance, in the subsequent Dusseldorp case the Court demanded that ‘Article 90 of the Treaty, in conjunction with Article 86, precludes rules such as the Long-term Plan whereby a Member State requires undertakings to deliver their waste for recovery, such as oil filters, to a national undertaking on which it has conferred the exclusive right to incinerate dangerous waste unless the processing of their waste in another Member State is of a higher quality than that performed by that undertaking if, without any objective justification and without being necessary for the performance of a task in the general interest, those rules have the effect of favoring the national undertaking and increasing its dominant position’. However the Court did not tell national court how one could prove its quality is higher than others? And supposed they can prove their efficiency in this case, can the Community or national courts monitor efficiency of undertakings concerned anytime in the future? The authorities in question probably cannot fulfill this mission. Then it seemed that the Court suggested national court to liberalize the service of waster for recovery. Otherwise there was no other appropriate means and this means seems to be what can be done once for ever.
In a word, economic equilibrium principle seems to be a two-bifurcated approach. On the one hand it is a flexible method for traditional public services to justify their monopoly; on the other hand it is an edge tool for the Court to penetrate into new public services in the interest of liberalization. Because of the born defect that less restrictive means objectively exists statutory monopoly with the operation of services of general economic interest can hardly fulfill economic viability test unless the Court reduces the degree of proof or accepts its plead. Access to economic equilibrium principle should be made case by case and sector by sector. Anyway the Court wraps economic equilibrium principle in a blanket of discretion which takes it much closer to a purely subjective notion, according to which it would be for the Court to determine what the specific criterion of economic viability would be at any given moment.
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