Submission 3/2008 by Guilaume FABRE and Daniel CREVEL-SANDER
?L?arrêt BUPA du TPI du 14 février 2008et la mise en ?uvre des principes posés dans l?arrêt Altmark?
The BUPA case gave an opportunity to the CFI to revisit the Altmark criteria on whether a compensation for obligations of services of general economic interest amounts to state aid.
The case concerned a scheme pursuant to which public services obligations were imposed to all operators on the Irish private health insurance market, with a system for compensation between the various operators. In light of the peculiar nature of the scheme at issue, the CFI made a teleological interpretation of the Altmark criteria, based on the spirit and purpose which prevailed in the Altmark case.
In particular, the third Altmark condition, concerning the calculation of the compensation could not be applied. The fourth Altmark condition was also inapplicable, for lack of any undertaking to use as a benchmark. The CFI was however satisfied that both conditions were met by reference to their spirit and purpose, in particular in light of the need to preserve the sovereign choice of Ireland on the organisation of its health insurance system. Finally, and although the CFI examined each condition separately, it used constant cross references from the application of one Altmark condition to other Altmark conditions. This creates the impression that it wished to return to a more comprehensive, all-encompassing analysis of compensation schemes, such as the approach that had prevailed in the Ferring case. The parallel drawn by the Tribunal throughout its analysis of the Altmark criteria with the application of Article 86 EC further supports this view.
All in all, the approach of the CFI suggests a move towards a relaxation in the application of the Altmark criteria, opening the door to a way back to a more pragmatic, Ferring like, approach of the compensation for obligations of services of general economic interest.
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