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Exclusive Rights and State Aid

Grith Skovgaard Ølykke


Keywords: Exclusive Rights, Services Directive, Organisation of Markets, Competitive Procedure, Compensation, Fee

Exclusive rights are granted in order to regulate markets as one of several possible tools of public intervention. The article considers the role of State aid law in the regulation of exclusive rights. Whereas the right of Member States to organise markets as monopolies and the choice of provider are regulated by free movement rules and Article 106 TFEU, State aid law regulates the terms of the right to ensure that the beneficiary is not granted an economic advantage. Exclusive rights may be granted on various terms: for a payment, in combination with compensation or as compensation. The two former kinds of terms are regulated under State aid law which requires market terms. The granting of exclusive rights as compensation is analysed on the basis of the Eventech judgment, and it is found that when no financial transaction is included in the grant, it resembles a decision to organise a market through exclusive rights which could explain the CJEU’s somewhat ambiguous approach in Eventech.
Keywords: Exclusive Rights; Services Directive; Organisation of Markets; Competitive Procedure; Compensation; Fee.

Grith Skovgaard Ølykke, Professor with special responsibilities in Commercial Law and European Market Law, Law Department, Copenhagen Business School. DOI: 10.21552/estal/2017/2/5


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