Services of general interest: could Europe move forward?

(article published in October 2006) (Archive B2) The European Parliament approved, by a large majority (491 votes for, 128 votes against and 31 abstentions), an initiative report on Services of General Interest (SGI). Although solidly substantiated, this report written by the German social democrat Bernhard Rapkay is less audacious in tone than the previous ones: the Langen reports in 2001 and the Herzog reports in 2004. Between the proponents of non-legislative, satisfied with an interpretation by the judgments of the Court and by the Commission, and the proponents of regulation by law, the compromise is there », justifies Ieke Van den Burg, PES coordinator on GIS: « we need new proposals from the European Commission, a political debate, in which the European Parliament is involved, with respect for the co-decision procedure ».

Beyond the divergent political assessments, the main interest of this report concerns local autonomy, which is clearly put forward, and the demand for a directive for social and health services (SSIG).

Legislative initiatives
Parliament thus invites the Commission "to propose appropriate legal initiatives" on SGIs by advocating the use of the co-decision procedure, when the Treaty provides for it. The word "framework directive" is not mentioned, to the great displeasure of certain MEPs, particularly on the left. But he opposes to the idea of ​​using this exercise to "exempt large sectors of these services from the application of the rules governing the internal market and competition". Rather, he defends a sectoral approach. An approach " will open up markets, instead of regulation to save old monopolistic public services, and will result in lower prices, better services, cross-border competition explains the shadow rapporteur of the PPE-DE Group (Christian Democrat), Gunnar Hökmark (Sweden). The report is in fact in favor of the Commission extending its sectoral action – already experienced in transport or telecoms – to other sectors. He asks for a directive specific to social and health services. The parliamentarians also ask for some clarification of the distinction between services of general interest (SGI) and economic services (SGEI) even if they consider, moreover, that this distinction is difficult to establish.

Preserving local autonomy
The second issue of this report is the clarification of the rules for financing the public service. Parliamentarians therefore want that when a competent authority identifies a public service, it defines the public service obligations either through a fair and transparent procedure, or through an appropriate official act that satisfies the transparency criterion. The report specifies the means of financing available and takes up the criteria defined by case law on public service compensation. This compensation must be made available to all operators who provide a GIS, regardless of its status, the report recommends. But he refuses “cross-funding”, when public aid comes to finance activities outside the objective of the service in question. MEPs are concerned about the lack of clarity in the Commission's decision of 28 November 2005 on public service compensation and call for further clarification.
The third aspect of the report, and undoubtedly the most delicate, relates to public service delegations and concessions. The multiple judgments of the Court of Justice on “in house” services have irritated local authorities, especially in Italy and Germany.
The "principle of autonomy" of local authorities must be respected, the report recalls in all tones. It is up to the competent authority to decide by what means it intends to provide the service, either directly or by entrusting it to an external service provider, exercising the same control as if the service had been provided internally. Exceptions to the obligation to call for tenders must be provided for in the event of an emergency or a low impact on cross-border trade... The report thus calls on the Commission to clarify the directives on public procurement, by giving the possibility to the authorities local authorities to entrust their services directly to intermunicipal entities, or to companies under its control and which do not intervene in competitive markets.

The Commission proposal
The European Commission has proposed to move forward on GIS. "A communication will be presented by the end of the year", announced José-Manuel Barroso, its president. "The time has come for us to consolidate the regulatory framework." A framework based on four principles. First, subsidiarity. “the framework of the GIS provided remains the responsibility of the Member States”. Second, the primacy of public service. “In the event of an insoluble conflict between the rules of the internal market or competition and a mission of general interest, the mission of general interest must take precedence. The Commission can provide any necessary clarification. Third, the opening. “Any framework must be open to differences and favorable to modernization. It should be based on the objectives of high quality, value for money and universal access. Finally, legal certainty. “It is up to public authorities at all levels to specify the rules applicable to GIS. »

(NGV)