Rules and Practice Governing Exemptions under Article 34 of Utilities Directive 2014/25/EU: SŽ-Tovorni promet v Commission (T-575/20) on the Rail Freight Sector in Slovenia

Case: SZ-Tovorni Promet v European Commission (T-575/20) unreported 14 September 2022 (GC)

This case concerns an unsuccessful application for exemption from the Utilities Directive 2014/25 under art.34 of that Directive,2 which allows exemption for activities carried out in competitive markets. The case confirms that the assessment to be made is case-by-case, implying that applicants cannot rely on previous Decisions on exemption. Further, the case confirms that the burden of proof is significant and is on the applicant. It also establishes that the Commission’s assessment must be based on the current conditions in the market and not on expectations of future developments (unless documented). Thus, a future application could have another result.