The Competition Law Limitations of Entrusting Public Services to Public Undertakings

As public authorities are quite slow in departing from the long „tradition†of entrusting provision such services almost exclusively to public undertaking, a serious limitation for such choice is brought by EU law competition rules. When applied in national law for the incorporation by public authorities of undertakings carrying out services of general economic interest, the EU law competition rules require a double obligation to justify (i) an explicit public interest as well as (ii) the failure of the relevant market to provide the elements defining such public interest. Administrative law doctrine has to open up to EU law and especially to its competition rules as well as to public finance law, in order to fully tackle the various elements defining public services.