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Infrastructure funding

Koen Van De Casteele and Alessandra Forzano. Infrastructure funding. Traditional MS’ view. MS usually consider it as a public interest task, thus not falling under SA rules MS do not notify support to construction and operation of infrastructure

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Infrastructure funding

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  1. Koen Van De Casteele and Alessandra Forzano Infrastructure funding

  2. Traditional MS’ view • MS usually consider it as a public interest task, thus not falling under SA rules • MS do not notify support to construction and operation of infrastructure • Open and non discriminatory access to exclude advantage to beneficiaries

  3. Traditional Commission’s view • Traditional policy not very clear until now: some differentiations across various sectors (e.g. construction of ports and airports are public; sport stadiums and multipurpose arenas open to all on non-discriminatory basis) • Need to take into account the Leipzig Halle judgment

  4. Leipzig/Halle judgment • Joined cases T-455/08 and T-443/08 • Judgment of 24 March 2011, under appeal • Criteria to establish the economic character of an infrastructure

  5. I-Economic activity? • Leipzig/Halle judgment: not only the operation of airport infrastructure (a runway) but also the construction of infrastructure linked to its later operation constitutes an economic activity.

  6. II- Economic activity? Further elements: • the economic (or non-economic) character of the later exploitation necessarily determines the character of the construction of the infrastructure • Also activities which are non profitable or would not be carried out by private investor

  7. Implications of the judgment • Prima facie applicable to all types of infrastructures in all sectors • Exceptions:activities within public remit. • [The construction of infrastructures non commercially exploited falls outside SA rules]

  8. Public remit activities • Security, safety, police, customs measures, control supervision of airspace; fire prevention, meteorological service and air traffic control • NB: The distinction public remit/economic activity should be done case by case.

  9. Railways • Rail freight/international passenger transport activities liberalized from 2007/2010 • Infrastructure management: MS are free to choose between liberalization/monopoly • NB: The obligation to notify may vary in different MS

  10. Respect of SA rules in Operational Programmes Normally COMP becomes aware of SA issues by: • Consultation on major projects (Art. 39 -41 Reg. 1083/2006) • Notification of measures from MS • Other ways (e.g. complaints, audit) NB: risk of delaying the process!

  11. Respect of SA rules in Operational Programmes Increased cooperation REGIO-COMP: • Joined letter Ahner-Italianer of 10.11.2011 sent to the Permanent Representations • Early clarification of SA aspects and involvement of national SA authorities • COMP available to early stage consultations from MS/REGIO

  12. Thank you for your attention!

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