Abstract
This chapter critically explains the concept of social service of general interest (SSGI), relating it to two central legal regimes: free movement and competition law. The asymmetries of relevance between these two legal regimes are carefully pointed out. The chapter considers whether it is advisable to understand and use the concept SSGI in a horizontal and universal manner across several areas of EU law, when knowing that there exist significant asymmetries between legal regimes.
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Notes
- 1.
The analyses are limited to primary law, the case law of the CJEU, GC, and to some ‘soft law’ as this source has a special importance when considering the concept of SSGI’s evolving character. Among others, public procurement, merger control and state aid law, as well as secondary law (such as the Services Directive and sector-specific legislation), is excluded from direct focus. Furthermore, in principle individuals’ rights to social benefits are not included (i.e. Union citizenship and free movement of workers). Also, it is of course not possible to come up with a full account of two such great areas of law, so the purpose is to look for the general trends in differences and what impact these may have. See for a different perspective Mortelmans 2001.
- 2.
This observation is based on a search in the database ‘EurLex’ carried out on 25 February 2011 and limited to ‘title and text’. Available at: http://eur-lex.europa.eu/en/index.htm. The search resulted in 79 hits.
- 3.
COM (2001) 598, 17 October 2991, p. 10.
- 4.
See Chap. 13 in this volume, by Szyszczak.
- 5.
Commission, Services of General Interest in Europe, 96/C281/03, OJ 1996 C 281/03.
- 6.
Ibid. Sect. 4.
- 7.
See for e.g. Commission, Communication from the Commission, Services of General Interest in Europe, COM (2000) 580, 20 September 2000, Annex II; COM (2001) 598, Annex; Commission, Green Paper on Services of General Interest, COM (2003) 270, 21 May 2003, Sect. 16; and Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, White Paper on Services of General Interest, COM (2004) 374, 12 May 2004, Annex 1.
- 8.
This provision has been altered since the entry into force of the Treaty in 1958.
- 9.
Directive 2006/123 of the European Parliament and of the Council of 12 December 2006 on Services in the Internal Market, OJ 2006 L 376/36, in particular Articles 2 and 17.
- 10.
In the same direction, see GC, Case T-289/03 BUPA [2008] ECR II-81, para 165. Also see GC, Case T-289/03 (Order) BUPA [2005] ECR II-741.
- 11.
Commission, Commission Staff Working Paper, The Application of EU State Aid Rules on Services of General Economic Interest since 2005 and the Outcome of the Public Consultation, SEC (2011) 397, 23 March 2011. The Commission includes in the latter category the following: long-term care, early childhood education and care services, employment services, social housing, other social services and services organised by local authorities, where the latter again may include: recreational activities (e.g. swimming pools, zoos, sport centres, youth clubs), educational and cultural activities for children and adults (e.g. child care, libraries, learning centres, museums), counselling for persons in difficult social situations, shelter for homeless persons, community centres and local town/concert halls.
- 12.
GC, Case T-289/03 BUPA [2008] ECR II-8.
- 13.
CJEU, Case C-437/09 AG2R [decided on 3 March 2011, nyr]. More generally about this case, see Sect. 9.3 below.
- 14.
Ibid. para 74. Concerning solidarity, also see paras 47–52.
- 15.
Ibid.
- 16.
It may be added that it is clearly stipulated in the Services Directive that it does not apply to this category of services. See the Services Directive, Article 2(2)(a).
- 17.
OJ 1996 C 281/03, Sect. 18.
- 18.
COM (2007) 725, 20 November 2007, p. 5.
- 19.
If NESGIs should be viewed as limited to only matters which are related to prerogatives of the state, then examples of activities belonging to the category could probably be found within fields such as the administration of taxation systems, justice, internal and external security, diplomacy and defence. At a more specific level, it could also be the issue of passports, the registration of births, deaths and marriages, as well as execution of punishment of citizens. See Scott 2000, p. 313.
- 20.
One example of the difficult distinctions may be found e.g. in Belgian Presidency of the Council, 3rd Forum on Social Services of General Interest, Social Services of General Interest: At the Heart of the European Social Model. General Background Note, 2010, p. 5, where it is stated that: ‘The Commission thus recalls that only the supply and organization of services of general economic interest (SGEI) are subject to the rules of the Treaty and a case-by-case analysis is needed to be able to distinguish a SSGI from a NESGI or in other words, a non-economic service of general interest.’ Further, see for e.g. Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Reform of the EU State Aid Rules on Services of General Economic Interest, COM (2011) 146, 23 March 2011, p. 4.
- 21.
It is indicated by the Commission that education and training are SGIs with a clear social function, which, however, are not covered by the Communication. See Commission, Communication from the Commission, Implementing the Community Lisbon Programme: Social Services of General Interest in the European Union, COM (2006) 177 final, 26 April 2006, p. 4, n. 7.
- 22.
See Hatzopoulos 2005b, p. 112 et seq, who views social policy besides health as including areas such as pensions, aid for economically disadvantaged, housing, employment, education and other. Also see Commission, Commission Staff Working Document, Annexes to the Communication from the Commission on Social Services of General interest in the European Union—Socio-Economic and Legal Overview, COM (2006) 177, 26 April 2006, Sect. 1.1.1., where it is stated that: ‘It is in this context very important to note that ‘social’ does not necessarily mean ‘non-economic’. The fact that the functioning is based on solidarity, that certain social objectives are pursued or the non-profit nature of the provider do not rule out that the activity in question is qualified as an economic activity. Some operators may agree to take aspects of solidarity into account in the light other benefits they may obtain from intervening in the sector under consideration. Conversely, non-profit-making entities may compete with profit-making undertakings and may, therefore, constitute undertakings within the meaning of Article 87 of the EC Treaty [now Article 107 TFEU]. As a general rule, EU case law classifies as an undertaking any entity engaged in an economic activity, regardless of its legal status in which it is financed [Footnote omitted]. It should also be noted that an entity carrying out primarily non-economic activities might be engaged in secondary activities of an economic nature. In such cases, classification as an undertaking within the meaning of the competition rules will be confined to the economic activities involved.’
- 23.
This point of view could seem supported in the following: ‘SSGI are not included as such in the two categories mentioned above of SGEI and NESGI, but they oscillate between the two, depending on whether or not the criterion of economic activity is identified within the social service in question.’ See the Belgian Presidency of the Council, 3rd Forum on Social Services of General Interest, p. 11.
- 24.
The difficulties in this regard seem recently acknowledged by the Council as it has stated in an invitation to the Commission: 1. Without prejudice to the Commission’s right of initiative, to further clarify, particularly through the Commission’s Guide, the Interactive Information Service and, if need be, other appropriate non- legislative instruments, its views on: (a) the way of identification of a social service as an economic or non-economic service of general interest… See the Council, Council Conclusions ‘Social Services of General Interest: at the Heart of the European Social Model’, 3053rd Employment, Social Policy Health and Consumer Affairs Council Meeting, Brussels, 6 December 2010, p. 5.
- 25.
Commission, Communication from the Commission, Implementing the Community Lisbon Programme: Social Services of General Interest in the European Union, COM (2006) 177.
- 26.
Ibid. p. 4.
- 27.
Ibid. p. 4. These definitions are repeated by the Commission in 2007 in its package of initiatives to turn its Citizens’ Agenda into a consistent set of actions; see Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee of the Regions, A Single Market for twenty-first century Europe, COM (2007) 724, 20 November 2011, p. 3. Social services are particularly mentioned by the Commission in the accompanying Communication; see COM (2007) 725, pp. 5–6. Also see Commission, Commission Staff Working Document, Guide to the Application of the European Union Rules on State Aid, Public Procurement and the Internal Market to Services of General Economic Interest, and in Particular to Social Services of General Interest, SEC (2010) 1545, 7 December 2010.
- 28.
Marcou and Wollmann 2010, p. 1. Along the same path, see for e.g. the historians Petersen and Petersen 2010, p. 28, who in principle view as central welfare state services education, health, housing, and culture, but end up in as many as six volumes ‘only’ analysing what probably could be considered as more core social security services.
- 29.
Belgian Presidency of the Council, 3rd Forum on Social Services of General Interest, p. 6.
- 30.
GC, Case T-289/03 BUPA [2008] ECR II-81, para 178.
- 31.
GC, Case T-289/03 BUPA [2008] ECR II-81.
- 32.
Ibid.
- 33.
Commission, Communication from the Commission, Implementing the Community Lisbon Programme: Social Services of General Interest in the European Union, COM (2006) 177, p. 4. SSGIs may in the alternative be classified pursuant to the objectives they intend to pursue. For instance, these have been described in the following manner: ‘These are services to persons, designed to meet people’s vital needs, particularly for users in vulnerable situations; they are key instruments for protecting the fundamental rights and human dignity; They play a preventive and social cohesion role, with regard to the entire population, independently of wealth and income; They contribute to fighting discrimination, to promoting gender equality, to protecting human health, to improving the level of health and quality of life and ensuring equal opportunities for all, thus reinforcing the individuals’ capacity to fully take part in society.’ See Belgian Presidency of the Council, 3rd Forum on Social Services of General Interest, p. 7.
- 34.
See Chap. 13 in this volume, by Szyszczak.
- 35.
- 36.
Council of Europe, Report Prepared by Brian Munday, University of Kent, European Social Services: A Map of Characteristics and Trends, pp. 6–7. In the literature, many other distinctions prevail. See in this regard, for e.g. Chap. 22 in this volume, by Koldinská. Of course, many other distinctions exist.
- 37.
The present paragraph and the following constitute a development from Neergaard and Nielsen 2010.
- 38.
- 39.
CJEU, Case 43/75 Defrenne II [1976] ECR 455.
- 40.
See Commission, European Social Policy—A Way Forward for the Union—A White Paper, COM (94) 333, 27 July 1994, Preface.
- 41.
Hatzopoulos 2005a, p. 1634.
- 42.
Semmelmann 2010, p. 521, where it is added that: ‘…the impact of the introduction of the concept of the ‘social market economy’ amounts to a rather cosmetic and rhetorical step and merely points to a stronger emphasis on the social element than has been the case thus far, without making any pronouncement on the specific implementing measures and its weight vis-à -vis other goals; it reflects a desire to address the social concerns whereas at the same time it recalls the need of not undermining the central objective of strengthening the single market. Even though it may be intended to create a social counterbalance to market considerations, its impact can be equated to and does not go beyond the recognition of the equal status of both a social and an economic objective of the European Union [Footnotes omitted].’ See also the explanation by Azoulai 2008, p. 1337: ‘This concept—in its German ordo-liberal inspiration not without strong liberal elements—in the new treaty clearly corresponds to the desire to create a social counterbalance to market considerations. It contains the idea that European integration should not be pursued to the detriment of the integrity of the social systems of the Member States. Economic benefits should not be obtained by sacrificing social benefits. The inclusion of the concept of a social market economy in the new Treaty confirms the desire to find a new equilibrium, and to combat the ‘social deficit’ of the Union… It is quite clear that this conception is based on a contradiction. The means for developing a social Europe are in fact limited. The ‘new’ Union—just like the Community—has not been granted a competence in matters of social harmonization. It only has instruments of coordination in relation to the social policies and social law of the Member States, which in their turn are based on very divergent economic and social models [Footnotes omitted].’ Further, see Joerges 2009, and Commission, Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions, Towards a Single Market Act, For a Highly Competitive Social Market Economy, 50 Proposals for Improving Our Work, Business and Exchanges With One Another, COM (2010) 608, 27 October 2010.
- 43.
CJEU, Case C-341/05 Laval [2007] ECR I-11767, para 105. Also see CJEU, Case C-438/05 Viking [2007] ECR I-10779, para 79.
- 44.
EP Report of 28 March 2011 on Delivering a Single Market to Consumers and Citizens, Committee on the Internal Market and Consumer Protection, Rapporteur: Louis Grech, 2010/2011(INI) paras 11–12. Also see EP, Amendments 1–285.
- 45.
Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Single Market Act, Twelve Levers to Boost Growth and Strengthen Confidence, ‘Working Together to Create New Growth’, COM (2011) 206/4, 13 April 2011, pp. 16–17.
- 46.
CJEU, Case 120/78 Cassis de Dijon [1979] ECR 646.
- 47.
See for instance the Norwegian Ph.D.thesis by Gjendemsjø 2011. Also see CJEU, Joined Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P GlaxoSmithKline Services Unlimited [2009] ECR I-9291, paras 62–63: ‘With respect to the Court of First Instance’s statement that, while it is accepted that an agreement intended to limit parallel trade must in principle be considered to have as its object the restriction of competition, that applies in so far as it may be presumed to deprive final consumers of the advantages of effective competition in terms of supply or price, the Court notes that neither the wording of Article 81(1) EC [now Article 101(1) TFEU] nor the case-law lend support to such a position. First of all, there is nothing in that provision to indicate that only those agreements which deprive consumers of certain advantages may have an anti-competitive object. Secondly, it must be borne in mind that the Court has held that, like other competition rules laid down in the Treaty, Article 81 EC [now Article 101 TFEU] aims to protect not only the interests of competitors or of consumers, but also the structure of the market and, in so doing, competition as such. Consequently, for a finding that an agreement has an anti-competitive object, it is not necessary that final consumers be deprived of the advantages of effective competition in terms of supply or price…’.
- 48.
Sánchez Graells 2011, p. 97.
- 49.
- 50.
See CJEU, Case C-67/96 Albany [1999] ECR I-5751, para 54: ‘Next, it is important to bear in mind that, under Article 3(g) and (i) of the EC Treaty, the activities of the Community are to include not only a `system ensuring that competition in the internal market is not distorted' but also ‘a policy in the social sphere’. Article 2 of the EC Treaty provides that a particular task of the Community is ‘to promote throughout the Community a harmonious and balanced development of economic activities’ and ‘a high level of employment and of social protection’.
- 51.
See in this regard Lavrijssen 2010, p. 637.
- 52.
Article 7 TFEU determines: ‘The Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers.’
- 53.
JoaquÃn Almunia, How Competition Policy Contributes to Competitiveness and Social Cohesion Europe 2011, Regulação e Competitividade Lisbon, 14 January 2011. Also see e.g. Weitbrecht 2008, p. 88, who states: ‘Operating a system ensuring that competition in the internal market is not distorted has been one of the fundamental activities of the European Union (Art. 3(g) Rome Treaty). Under the Lisbon Treaty, signed on December 13, 2007, Art. 2(3) dealing with the internal market does no longer refer to such a system. Undistorted competition is now only mentioned in a tersely-worded Protocol on the Internal Market and Competition. While the current Competition Commissioner has sought to downplay the significance of this change as one of mere semantics, this revision may well turn out to be the starting point for a different role of competition in the European Union over the next 50 years.’ Also see Semmelmann 2010, p. 521, who points out: ‘Article 3(3) TEU as amended compared to ex art. 3(1) EC no longer includes a system of undistorted competition. The current art. 3(3) TEU is yet to be read in conjunction with Protocol 27 on the Internal Market and Competition attached to the Lisbon Treaty which states that ‘the internal market as set out in Article 3 TEU includes a system ensuring that competition is not distorted’. What does the elimination of competition as a goal from the EU Treaty mean in legal terms (notwithstanding the chapter on competition which remains largely unaltered): the Protocol enjoys the rank of primary law so that there is no impact on the legal status of competition as a goal of the European Union. The fact that it will be made a part of the internal market as derived from the wording of the Protocol reflects the approach that considered competition rules and the free-movement rules as two sets of rules with the same overarching goal, namely to abolish obstacles to cross-border trade. Nonetheless, the step could be understood as a political weakening of competition as a value in itself. This would amount to a weakening of the economic element in the economic constitution as opposed to the interventionist pattern [Footnotes omitted].’
- 54.
CJEU, Case C-52/09 TeliaSonera [decided on 17 February 2011, nyr], paras 20–22.
- 55.
- 56.
CJEU, Case C-437/09 AG2R [decided on 3 March 2011, nyr], paras 28–39.
- 57.
See further e.g. Neergaard and Nielsen 2011.
- 58.
Other freedoms can also be of interest. See for instance CJEU, Case C-567/07 Sint Servatius [2009] ECR I-9021, regarding free movement of capital in the context of social housing.
- 59.
CJEU, Case C-490/09 Laboratory Analyses [decided on 17 January 2011, nyr], para 32.
- 60.
Ibid.
- 61.
See more generally on this subject (van de Gronden et al. 2011).
- 62.
CJEU, Case C-490/09 Laboratory Analyses [decided on 17 January 2011, nyr], paras 34–36. Reference could also be made to the older CJEU, Case C-157/99 Smits and Peerbooms [2001] ECR I-5473, which also concerns health services. Here, a number of the governments argues that hospital services cannot constitute an economic activity within the meaning of Article 57 TFEU, particularly when they are provided in kind and free of charge under the relevant sickness insurance scheme. Also, it is claimed that there is no remuneration within the meaning of Article 57 TFEU where the patient receives care in a hospital infrastructure without having to pay for it himself or where all or part of the amount he pays is reimbursed to him. Furthermore, the view is put forward that a further condition to be satisfied before a service can constitute an economic activity within the meaning of Article 57 TFEU is that the person providing the service must do so with a view to making a profit. Finally, the German Government claims that the structural principles governing the provision of medical care are inherent in the organisation of the social security systems and do not come within the sphere of the fundamental economic freedoms guaranteed by the EC Treaty, since the persons concerned are unable to decide for themselves the content, type and extent of a service and the price they will pay. All these arguments cannot be upheld and the CJEU hereby lays the foundation regarding health services followed in its subsequent case law and as expressed above in CJEU, Case C-490/09 Laboratory Analyses [decided on 17 January 2011, nyr].
- 63.
CJEU, Case C-350/07 Kattner Stahlbau [2009] ECR I-1513.
- 64.
Ibid. paras 74–76.
- 65.
CJEU, Case C-567/07 Sint Servatius [2009] ECR I-9021.
- 66.
See for instance CJEU, Case 293/83 Gravier [1985] ECR 593; CJEU, Case 263/86 Humbel [1988] ECR 5365; CJEU, Case 109/92 Wirth [1993] ECR I-6447; CJEU, Case C-281/06 Jundt [2007] ECR I-12231.
- 67.
CJEU, Case C-281/06 Jundt [2007] ECR I-12231, paras 29–30.
- 68.
CJEU, Case C-355/00 Freskot [2003] ECR I-5263, para 53. In this case, the CJEU in paras 56-59 holds that: ‘In the present case, it is clear that the payment of the contribution by the Greek farmers does not constitute economic consideration for the benefits provided by ELGA under the compulsory insurance scheme. The contribution is essentially in the nature of a charge imposed by the legislature and it is levied by the tax authority. The characteristics of that charge, including its rate, are also determined by the legislature. It is for the competent ministers to decide any variation of the rate. Similarly, the rate and detailed rules governing the benefits provided by ELGA under the compulsory insurance scheme are framed by the national legislature in such a way as to apply equally to all operators. Consequently, benefits such as those provided by ELGA under the compulsory insurance scheme cannot be classified as services within the meaning of Articles 59 and 60 [now Articles 56 and 57 TFEU] of the Treaty.’
- 69.
In the alternative, this criterion may be viewed as an exemption; see Sect. 9.3.4 below.
- 70.
CJEU, Case C-281/06 Jundt [2007] ECR I-12231, para 37.
- 71.
CJEU, Joined Cases C-372/09 and C-373/09 Peñarroja Fa [decided on 17 March 2011 nyr], para 42.
- 72.
Opinion of AG P Cruz Villalón of 14 September 2010 in CJEU, Case C-247/08 Notary Profession, [2009] ECR I-9225, para 80.
- 73.
Opinion of AG P Cruz Villalón of 14 September 2010 in CJEU, Case C-247/08 Notary Profession, [2009] ECR I-9225, paras 93–96. Also, he explains that: ‘In this sense, ‘official authority’ is, above all, ‘authority’, that is to say the capacity to impose a form of conduct consistent with an irresistible will. On the basis of a readily accepted understanding of the term, and in its fullest sense, that capacity is held exclusively by the State, that is to say by the institution that is the embodiment of the legal system as the instrument for the administration and organisation of legitimate force. Official authority is, therefore, sovereign power, qui superiorem non recognoscens in regno suo. This means that official authority is the supreme source of legitimate force in the State, which it administers either for the benefit of the existence of the State and the achievement of its aims (general interest) or in the service of legitimate expectations of conduct held by certain individuals in relation to others (private interest), in the latter case always in accordance with the conditions established previously. Of course, the purpose of the force monopolised and administered by the State is one of the first criteria to be taken into account when it comes to drawing the dividing line between official authority and individuals. Official authority must achieve those general objectives that underpin the legitimacy of the specific form of State adopted by the executive (in Europe, typically, a social and democratic State based on the rule of law). Individuals, on the other hand, in the exercise of their freedom as such, can dedicate themselves to the satisfaction of their private interests. What is more, they may do so, where appropriate and under the conditions laid down by the system, by recourse to the force administered by official authority, which, for those purposes, is, in principle, an instrument for the pursuit of non-general interests. However, the criterion most traditionally used to identify official authority is the capacity of the body exercising official authority to impose its will unilaterally, that is to say without requiring the consent of the person subject to the relevant obligation. An individual, on the other hand, may secure the acceptance of his will by another individual only with the latter’s consent. [Footnotes omitted]. Also see CJEU, Case C-247/08 Notary Profession [24 May 2011, nyr], para 124, where the CJEU decides that the nationality condition required by Belgian legislation for access to the profession of notary constitutes discrimination on grounds of nationality prohibited by Article 53 TFEU [then Article 43 EC].
- 74.
Odudu 2011, pp. 240–241.
- 75.
CJEU, Case C-437/09 AG2R [decided on 3 March 2011, nyr].
- 76.
- 77.
CJEU, Case C-437/09 AG2R [decided on 3 March 2011, nyr], para 23.
- 78.
Ibid. para 25.
- 79.
Ibid. para 26.
- 80.
Ibid. para 41.
- 81.
Ibid. para 42.
- 82.
Ibid. para 43.
- 83.
Ibid. para 44.
- 84.
Ibid. para 45.
- 85.
Ibid. paras 46–65.
- 86.
Ibid. para 65.
- 87.
The CJEU hereby seems to be in line with the Opinion of AG Mengozzi of 11 November 2010 in CJEU, Case C-437/09 AG2R [decided on 3 March 2011, nyr], para 78. For another, however older, case of relevance regarding the importance of ‘competition’, see CJEU, Joined Cases C-264/01, C-354/01, C-354/01 and C-355/01 AOK [2004] ECR I-2493.
- 88.
Also see Sect. 9.3.4 below about the argumentation in AG2R concerning especially Article 106(2) TFEU.
- 89.
CJEU, Case C-350/07 Kattner Stahlbau [2009] ECR I-1513, para 68. The finding in question is to be verified by the referring court.
- 90.
CJEU, Case C-205/03 P FENIN [2006] ECR I-6295, para 26. For a recent and seemingly much less controversial case, see GC, Cases T-443/08 and T-455/08 Flughafen Leipzig-Halle [decided on 24 March 2011, nyr].
- 91.
See, to that effect, e.g. CJEU, Case C-113/07 P SELEX [2009] ECR I-2207, para 70.
- 92.
CJEU, Case C-437/09 AG2R [decided on 3 March 2011, nyr], para 30.
- 93.
Ibid. para 31.
- 94.
Ibid. paras 32–36.
- 95.
Regarding the state action doctrine, the CJEU’s final conclusion is: ‘Accordingly, the answer to the first part of the question, as reformulated, is that Article 101 TFEU, read in conjunction with Article 4(3) EU, must be interpreted as not precluding the decision by the public authorities to make compulsory, at the request of the organisations representing employers and employees within a given occupational sector, an agreement which is the result of collective bargaining and which provides for compulsory affiliation to a scheme for supplementary reimbursement of healthcare costs for all undertakings within the sector concerned, without any possibility of exemption.’ See CJEU, Case C-437/09 AG2R [decided on 3 March 2011, nyr], para 39.
- 96.
See in this regard e.g. van de Gronden 2011, p. 139.
- 97.
CJEU, Case C-350/07 Kattner Stahlbau [2009] ECR I-1513.
- 98.
CJEU, Case C-490/09 Laboratory Analyses [decided on 17 January 2011, nyr], para 33. Other freedoms can also be of interest. See for instance CJEU, Case C-567/07 Sint Servatius [2009] ECR I-9021, regarding free movement of capital in the context of social housing.
- 99.
See further e.g. Snell 2010.
- 100.
CJEU, Case C-490/09 Laboratory Analyses [decided on 17 January 2011, nyr], para 41. In the same direction, see CJEU, Case C-350/07 Kattner Stahlbau [2009] ECR I-1513.
- 101.
CJEU, Case C-355/00 Freskot [2003] ECR I-5263.
- 102.
van de Gronden 2011, p. 126.
- 103.
CJEU, Case C-41/90 Höfner [1991] ECR I-1979, para 27.
- 104.
Buendia Sierra 1999, p. 189.
- 105.
Maillo 2007, p. 624. See also for the same perception e.g. de Vries, p. 158. Also see a possible support for this point of view, e.g. CJEU, Case C-209/98 Sydhavnens Sten & Grus [2000] ECR I-3743, paras 67–9.
- 106.
See further Neergaard 2007, p. 387. Regarding the related provisions, it is noteworthy that the CJEU has stated that: ‘… Article 86(1) EC [now Article 106 TFEU] precludes Member States, in the case of public undertakings and undertakings to which they grant special or exclusive rights, from maintaining in force national legislation contrary to Articles 43 EC and 49 EC [now Articles 49 and 56 TFEU]’, which pursuant to the judgement includes concessions granted without prior public procedure. See CJEU, Case C-347/06 Brescia [2008] ECR I-5641, para 61.
- 107.
CJEU, Case C-437/09 AG2R [decided on 3 March 2011, nyr], para 66.
- 108.
Ibid. para 66.
- 109.
Ibid. para 67.
- 110.
Ibid. paras 69, 71 and 72.
- 111.
That this is not more explicitly stated might have to do with the circumstance that the CJEU, in principle, intends to leave the final decision to the referring court.
- 112.
See for an alternative point of view Davies 2009, p. 574.
- 113.
Exercise of official authority has been dealt with above in Sect. 9.3.2.
- 114.
CJEU, Case C-490/09 Laboratory Analyses [decided on 17 January 2011, nyr], para 43.
- 115.
CJEU, Case C-567/07 Sint Servatius [2009] ECR I-9021, para 35.
- 116.
Ibid. para 35.
- 117.
See further the Sect. below concerning competition law.
- 118.
See among others Buendia Sierra 1999, pp. 297–298; van de Gronden 2004, pp. 87–94; Sauter 2008, p. 185; CJEU, Case 72/83 Campus Oil [1984] ECR 2727, para 19; Case C-179/90 Merci [1991] ECR I-5889; Opinion of AG Rozè of 26 April 1983 in CJEU, Case 78/82 Commission v. Italian Republic [1983] ECR I-1599; CJEU, Case C-157/94 Commission v. Kingdom of the Netherlands [1997] ECR I-5699; CJEU, Case C-159/94 Commission v. French Republic [1997] ECR I-5815; CJEU, Case C-158/94 Commission v. Italian Republic [1997] ECR I-5789; CJEU, Case C-438/02 Hanner [2005] ECR I-4551, para 48; Opinion of AG Tizzano of 8 May 2001 in CJEU, Case C-53/00 Ferring [2001] ECR I-9067, paras 33 and 56-59; CJEU, Case C-280/00 Altmark [2003] ECR I-7747; CJEU, Joined Cases C-34/01-C-38/01 Enirisorse [2003] ECR I-14243; CJEU, Case C-451/03 SADC [2006] ECR I-2941; CJEU, Case C-393/92 Almelo [1994] ECR I-1477. However, also see the Commission, Commission Staff Working Document, Annexes to the Communication from the Commission on Social Services of General Interest in the European Union—Socio-Economic and Legal Overview—COM (2006) 177 final, SEC (2006) 516, Sect. 1.1.1. Especially Bekkedal, who has been the defender of another point of view; see Bekkedal 2011.
- 119.
CJEU, Case C-567/07 Sint Servatius [2009] ECR I-9021. Among others, the national court asks: ‘4a. Besides, or in conjunction with, the overriding reasons in the public interest referred to in Article 58 EC [now Article 65 TFEU] and recognised in the case-law of the Court of Justice, can a Member State rely on Article 86(2) EC [now Article 106(2) TFEU] to justify a restriction on the free movement of capital, if special rights have been granted to the undertakings concerned and those undertakings are entrusted with the operation of services of general economic interest? 4b. Do the public interests referred to in Article 58 EC and the overriding reasons in the public interest recognised in the case-law of the Court of Justice have the same content as the general economic interest referred to in Article 86(2) EC? 4c. Does reliance by the Member State concerned on Article 86(2) EC, its contention being that the undertakings to which special rights have been granted perform tasks of general economic interest, have additional weight over and above reliance on public interests as referred to in Article 58 EC and the overriding reasons in the public interest recognised in the case-law of the Court of Justice?’ .
- 120.
CJEU, Case C-567/07 Sint Servatius [2009] ECR I-9021, para 47.
- 121.
Ibid. para 44.
- 122.
In support of this, see e.g. GC, Case T-289/03 BUPA [2008] ECR II-81.
- 123.
See in this regard also e.g. van de Gronden 2011.
- 124.
Hereby, an important exemption in competition law, namely Article 101(3) TFEU has been left out of the analysis. See in this regard, for e.g. Mortelmans 2001.
- 125.
See above in Sect. 9.3.3.
- 126.
As a condition for applying the test, it is inter alia assumed that an undertaking in the sense of Art. 106(2) TFEU is involved, see further above.
- 127.
See further e.g. Neergaard 2011b.
- 128.
In the Opinion of AG Mengozzi of 11 November 2010 in CJEU, Case C-437/09 AG2R [decided on 3 March 2011, nyr], para 104, the understanding is: ‘In like manner to the approach adopted by the Court with regard to the supplementary pension scheme at issue in Albany, I find that there is sufficient support for the view that the supplementary healthcare scheme managed by AG2R performs an essential social function and, as such, can come under the category of services of general economic interest within the meaning of Article 86(2) EC [now Article 106(2) TFEU].’
- 129.
CJEU, Case C-437/09 AG2R [decided on 3 March 2011, nyr], para 76.
- 130.
Ibid. paras 77–79.
- 131.
van de Gronden 2011, p. 150. See however Davies 2009, p. 572, who argues that: ‘The overlap between Article 86(2) [now Article 106(2) TFEU] and the existing derogations from free movement is complete. An undertaking that is honestly trying to achieve social goals within the framework of a state-imposed SGEI mission, rather than profiting from protectionism, has little to fear from free movement law in the first place.’
- 132.
See e.g. Mortelmans 2001, pp. 637 et seq.
- 133.
All results reached are of course to some extent limited due to the generalisations and estimations which have had to be made.
- 134.
See in the same direction, however regarding health care, for e.g. Szyszczak 2009, p. 192.
- 135.
See in the same direction e.g. Fiedziuk 2011, p. 235: ‘The existing qualification problem is compounded by the fact that an attempt to design a horizontal definition of non-economic services of general interest relying on the Court’s existing case law could be rather risky given the fact that the economic/non-economic distinction is understood differently by the Court in EU competition law and in EU internal market law. For instance, in the public health care services sector, Member States are afforded greater flexibility by the Court when it comes to the application of EU competition rules, whereas in the free movement disputes the Court endorses individual economic rights, even though they have many times been claimed to undermine the delivery of a universal service.’
- 136.
In the same direction, see van de Gronden 2011, p. 125.
- 137.
Also see e.g. SEC (2011) 397, p. 34, where it is stated that: ‘A number of Member States and many other stakeholders thus ask the Commission for further guidance on the general criteria for distinguishing between economic and non-economic activities for the purposes of applying the state aid rules and for concrete examples illustrating the application of these criteria’.
- 138.
- 139.
See in this regard for e.g. Fiedziuk 2011, p. 234, who states: ‘[F]rom an economist’s understanding, any service always and indistinguishably appears to be per se economic’.
- 140.
In the same direction, it has been expressed: ‘The real issue at stake that we feel will condition all the others, will be the place and the commitment of each player within… the ‘mixed economy of social services’ and the appropriate responses to be applied so that the values and principles at the heart of social services are fully respected.’ See Belgian Presidency of the Council of the European Union, 3rd Forum on Social Services of General Interest, p. 9.
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Neergaard, U. (2013). The Concept of SSGI and the Asymmetries Between Free Movement and Competition Law. In: Neergaard, U., Szyszczak, E., van de Gronden, J., Krajewski, M. (eds) Social Services of General Interest in the EU. Legal Issues of Services of General Interest. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-876-7_9
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