Abstract
The EU is aware that international trade agreements such as the WTO and the GATS may affect the internal EU response to trade in public services and the Commission has publicly stated that international trade agreements should not impede the EU capability to pursue its policies on public services. Markus Krajewski adopts a different approach and asks the question: to what extent can the international agreements signed by the EC/EU reflect, or even advance, a positive understanding of public services? This is an important perspective now that the Treaty of Lisbon 2009 places external relations policy in a larger value, and principle, driven framework. Krajewski also examines the role of the WTO and in particular the GATS. The telecom sector is the focus of attention because telecom provides an important model for liberalisation and the development of universal service obligations which are mirrored in other sectors opened up to competition. Two case studies follow, first the EC–Chile bilateral association agreement and second, the EU–CARIFORUM Economic Partnership Agreement which is of particular interest in that it contains positive universal service obligations. Krajewski also examines a number of agreements which are currently under discussion to determine if there is an emerging trend to include and define PSO and USO in the external agreements of the EU. Underlying this approach is a quest to determine whether in its external role the EU is continuing internal trends of seeing public services not only as exemptions and derogations from EU law, but also as a positive requirement.
As we pursue social justice and cohesion at home, we should also seek to promote our values, including social and environmental standards and cultural diversity, around the world (European Commission 2006, p. 5).
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
- 2.
European Commission, White Paper on Services of General Interest, COM (2004) 374 final, 20.
- 3.
Dimopoulos 2010, p. 164 et seq.
- 4.
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, OJ 2007 C 306/1. For a consolidated version see OJ 2010 C 83/1. The protocol on Services of General Interest can be found in 308.
- 5.
Ross 2000, pp. 22–37.
- 6.
White Paper on Services of General Interest, COM (2004) 374 final, 23.
- 7.
- 8.
Neergaard 2009, p. 17.
- 9.
Houben 2008, p. 7(10). See also the other chapters of this book.
- 10.
Directive 2002/22/EC of 7 March 2002 (Universal Service Directive) [2002] OJ L 108, 51.
- 11.
Directive 97/67/EC of 15 December 1997 (Internal market of Community postal services) [1998] OJ L 15, 14.
- 12.
Directive 2009/72/EC of 13 July 2009 (Internal market in electricity) [2009] OJ L 211, 55.
- 13.
Ibid., 94.
- 14.
Regulation (EC) No. 1370/2007 of 23 October 2007 (Public passenger transport services) [2007] OJ L 315, 1.
- 15.
For a detailed analysis of the GATS telecommunications regime see Bronckers and Larouche 2008, pp. 319–379.
- 16.
Roseman 2003.
- 17.
Batura forthcoming, p. 258.
- 18.
Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes, Report of the Panel, adopted on 7 November 1990, BISD 37S/200, para 74.
- 19.
Mexico—Measures Affecting Telecommunication Services, Report of the Panel, WT/DS204/R, 2 April 2004, para 7.338.
- 20.
Mexico—Measures Affecting Telecommunication Services, para. 7.342.
- 21.
Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, Report of the Appellate Body, paras 164–166.
- 22.
Krajewski 2008, pp. 397–404.
- 23.
Regan 2007, pp. 347–369.
- 24.
See Chap. 4 by Bekkedal.
- 25.
So far, the Mexico—Telecommunications case is the only decision which discusses Art. 5(e) (i). However, being an exception clause, the WTO's decisions on other exception clauses, in particular Art. XX GATT and Art. XIV GATS, could serve as guidance.
- 26.
Reference Paper on regulatory principles of 24 April 1996, available at: http://www.wto.org/english/tratop_e/serv_e/telecom_e/tel23_e.htm (last accessed 31 May 2010).
- 27.
See Sect. 10.3.1 supra.
- 28.
For a more detailed discussion of the following see Krajewski (ed) 2003.
- 29.
Peha 1999, pp. 369–373.
- 30.
OECD 2001, p. 21.
- 31.
Mexico—Measures Affecting Telecommunication Services, para 7.170–7.174.
- 32.
Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161 and WT/DS169, Report of the Appellate Body adopted on 10 January 2001, para 181; Dominican Republic—Measures Affecting the Importation and Internal Sale of Cigarettes, Report of the Appellate Body adopted on 19 May 2005, WT/DS302/AB/R, para 72.
- 33.
In 2001, the ECJ declared France in breach of its obligations under the Universal Services Directive. France’s defence was partly based on difficulties associated with collecting and assessing the required data, but the Court held that these difficulties could not justify the breach of those obligations, ECJ, Case C-146/00 Commission v. France [2001] ECR I-0767.
- 34.
Council for Trade in Services Special Session, Communication from the European Communities and their Member States, Postal/Courier: Proposal for a Reference Paper, TN/S/W/26, 17 January 2005.
- 35.
Agreement establishing an association between the European Community and its Member States, of one part, and the Republic of Chile, of the other part of 18 November 2002, OJ 2002, L 352/3.
- 36.
The CARIFORUM States comprise Antigua and Barbuda, the Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Saint Lucia, Saint Vincent and the Grenadines, Saint Kitts and Nevis, Suriname, Trinidad and Tobago and the Dominican Republic.
- 37.
Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other, signed in Cotonou on 23 June 2000, OJ L 317/3. On the general policy changes see Desta 2006, p. 1346 et seq.
- 38.
Economic Partnership Agreement between the CARIFORUM States, of the one part, and the European Community and its Member States, of the other, [2008] OJ L 289, 3.
- 39.
Sauvé and Ward 2009, p. 39.
- 40.
Schloemann and Pitschas 2009, p. 101(114).
- 41.
See Sect. 10.3.3 supra.
- 42.
Schloemann and Pitschas 2009, p. 101(117).
- 43.
Sauvé and Ward 2009, p. 40.
- 44.
See Sect. 10.2 supra.
- 45.
I would like to thank Olga Batura for this observation.
- 46.
Schloemann and Pitschas 2009, p. 101(122). See also the decision of the British Postal Regulator, the Postal Services Commission (POSTCOMM), which concluded in 2001 that the universal service did not represent a significant burden in the market at that time, see POSTCOMM, Cost and benefit of the universal service, available at http://www.psc.gov.uk/universal-service/cost-of-the-universal-service.html (last accessed 31 May 2010).
- 47.
On this problem see Sect. 10.3.2 supra.
- 48.
The draft text is available from webpage of the European Commission's Directorate General on External Trade, http://trade.ec.europa.eu/doclib/press/index.cfm?id=443 (last visited 31 May 2010).
- 49.
The draft text is available from the webpage www.bilaterals.org, http://www.bilaterals.org/spip.php?article17138&lang=en (accessed 31 May 2010).
- 50.
The Draft is available from the website of the Canadian Trade Justice Network: http://www.tradejustice.ca/tiki-download_wiki_attachment.php?attId=14 (31 May 2010).
References
Adlung R (2006) Public Services and the GATS, 9 JIEL, 455
Batura O (forthcoming) Embedded transnational markets in telecommunications. In: Joerges C, Falke J (eds) Karl Polanyi, globalisation and the potential of law in transnational markets. Hart Publishing, p 245
Bronckers M, Larouche P (2008) A review of the WTO regime for telecommunications services. In: Alexander K, Andenas M (eds) The World Trade Organization and trade in services. Nijhoff, Leiden, pp 319–379
Desta M (2006) EC-ACP economic partnership agreements and WTO compatibility, CML Rev 43:1343
Dimopoulos A (2010) The effects of the Lisbon Treaty on the Principles and Objectives of the Common Commercial Policy. Eur Foreign Affairs Rev 15:150
European Commission (2006) Global Europe—competing in the world, a contribution to the EU’s growth and jobs strategy, p 5
Houben I (2008) Public service obligations: Moral counterbalance of technical liberalization legislation? Eur Rev Private Law 16:7
Krajewski M (2008a) Comment: Quis custodiet necessitatem? Adjudicating necessity in multilevel systems and the importance of judicial dialogue. In: Panizzon M, Pohl N, Sauve P (eds) GATS and the regulation of international trade in services, CUP, Cambridge, pp 397–404
Krajewski M (2008b) Protecting a shared value of the union in a globalized world: services of general economic interest and external trade. In: Van de Gronden JW (ed) The EU and WTO law on services. Kluwer Law International, Alphen aan den Rijn, pp 173–213
Krajewski M (2003) National Regulation and Trade Liberalization in Services—the legal impact of the General Agreement on Trade in Services (GATS) on National Regulatory Autonomy. Kluwer Law International, London
Neergaard U (2009) Services of general economic interest: the nature of the beast. In: Krajewski M, Neergaard U, Van de Gronden J (eds) The changing legal framework of services of general interest in Europe. TMC Asser Press, The Hague, pp 17–50
OECD (2001) Working party on telecommunication and information services policies: interconnection and local competition, 7 February, DSTI/ICCP/TISP(2000)3/FINAL
Peha J (1999) Tradable universal service obligations. Telecommun Policy 23:369–373
Regan D (2007) The meaning of ‘necessary’ in GATT Article XX and GATS Article XIV: the myth of cost–benefit balancing. World Trade Rev 6:347–369
Roseman D (2003) Domestic regulation and trade in telecommunications services: experience and prospects under the GATS. In: Mattoo A, Sauvé P (eds) Domestic regulation and service trade liberalization. Oxford University Press, Washington, DC
Ross M (2000) Article 16 E.C. and services of general interest: from derogation to obligation? EL Rev 25:22–37
Sauvé P, Ward N (2009) The EC-CARIFORUM economic partnership agreement: assessing the outcome on services and investment. European Centre for International Political Economy (ECIPE)’, Brussels, January http://www.ecipe.org, 39
Schloemann H, Pitschas C (2009) Cutting the regulatory edge? In: Zusammenarbeit (ed) How to ensure development friendly economic partnership agreements, Gesellschaft für technische p 101
Acknowledgement
I would like to thank Olga Batura for helpful comments on an earlier version of this contribution.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2011 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the authors
About this chapter
Cite this chapter
Krajewski, M. (2011). Universal Service Provisions in International Agreements of the EU: From Derogation to Obligation?. In: Szyszczak, E., Davies, J., Andenæs, M., Bekkedal, T. (eds) Developments in Services of General Interest. Legal Issues of Services of General Interest. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-734-0_10
Download citation
DOI: https://doi.org/10.1007/978-90-6704-734-0_10
Published:
Publisher Name: T.M.C. Asser Press
Print ISBN: 978-90-6704-733-3
Online ISBN: 978-90-6704-734-0
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)
