Die Europäisierung des Gemeinwohls am Beispiel des Art. 106 Abs. 2 AEUV

The relation of market and the government concerning the EU legal system is regulated by Art. 106 paragraph 2 TFEU, which establishes a possibility of dispensation from the rules of the Treaties concerning services of general economic interest. Previously, the member states benefitted from a large scope of interpretation used as a loophole for national public interest. Considering the Europeanisation of welfare, this loophole needs to be closed in favour of an Europeanised dogmatic: On the one hand, the interpretation of the term “general interest” must be adjusted. To this end, the European legislative body can define European general interests in accordance with Art. 14 S. 2 TFEU. On the other hand, market intervention which public authorities designate as being of public interest must be limited in favour of the principle of competition by means of strict proportionality tests as an unwritten criterion of Art. 106 paragraph 2 TFEU.