Primena prava konkurencije na organe javne vlasti

Marković-Bajalović, Dijana (2014) Primena prava konkurencije na organe javne vlasti. Правни живот : лист за правна питања и праксу, 63 (573/11). pp. 143-158. ISSN 0350-0500

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Abstract

In the EU competition law the issue of applicability of competition rules to public authorities is often discussed. The term public authorities is understood in its widest possible sence – to comprise state and its territorial entities, as well as their organs, bodies and companies which they establish, control or entrust them with public powers. Generally speaking, the answer is relatively simple. A public authority will be responsible for infringments of competition rules set down in Art. 101 and 102 TFEU, if it acts as a market participant, i.e. if it performs economic activities. It will be protected from sanctioning if it performs state powers. The difference between acts iure imperii and acts iure gestionis came from international law, where it was introduced by the theory on restricted state immunity.The nature of the act is of a key significance to distinguish situations when a state can be called to account before civil courts from those where it is protected by its jurisdictional immunity. Besides the nature of the act, the aim of the transaction is also taken into account by courts of some states. The notion of economic activities in the EU law comprehend all activities of offering goods and services on market for price covering costs and deriving some profit. Regular economic activities will be exempted from competition rules if non-commercial elements, such as solidarity, pursuing social goals, state security, etc. overweight commercial elements in a specific case. The same situation will exist if a commercial activity is regulated by state in respect of price and other conditions. Economic activities which serve to satisfy general interest can also be exempted from competition rules in a specific case if it is proved that the restriction of competition is necessary to achieve a goal of satisfying general interest. Finally, activities which are entrusted to state or bodies which it forms and controll by an international agreement or national legislation represent manifestation of state imperium and they can not be sanctioned as competition infringements. They can be disputed in proceedings for sanctioning violations of international agreeements and for assessing constitutionality and legality of general or individual legal acts.

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