1. The European Commission published on 20th November 2007 the communication “Services of general interest, including social services of general interest: a new European commitment”, which presents its views on the further consolidation of the legal framework regarding provision, organisation and financing of public services within the European Internal market. The ETUC regrets that the Commission does not make any step further than simply reciting the new treaty provisions – the Commission has missed an opportunity to ensure that public services are sufficiently respected. The Commission should have seized the moment, and not have ducked it. The Commission will be accused of regarding public services as derogation from internal market rules and as a promoter of more liberalisation and privatisation. The ETUC has informed the Commission that it must make more substantial progress to remedy this perception and, not least, conduct the promised analysis of the effects of liberalisation, in particular the effects on employment.
2. The ETUC recognises that the Lisbon Treaty contains major innovations compared to the present situation, with Article 14 and a Protocol annexed to the treaties.
- Article 14 becomes a legal basis for adoption of secondary legislative instruments in the field of SGEIs which are subject to Council-Parliament co-decision.
- The protocol covers SGIs (services of general interest) as a whole and no longer only SGEIs (services of general economic interest) as was the case since 1957. It confirms “the essential role and the wide discretion of national, regional and local authorities in providing, commissioning and organising services of general economic interest as closely as possible to the needs of the users”. It defines the “shared values” in respect of SGEIs – “quality, safety, affordability, equal treatment and the promotion of universal access and of user rights” -, thereby giving them for the first time the value of primary legislation.
- The Charter of Fundamental Rights becomes legally binding including the article on SGEIs.
This is a major step in the right direction for at least two reasons: The ETUC always asked for a legal framework in secondary legislation, but the Council decided to put it into Primary Law and to make SGI formally exist in Community Law. The principle of subsidiarity and the responsibilities of the public authorities at all levels (both national and local) are reiterated in the Protocol. The replacement of the “open economy” by the “social market economy” and the replacement of undistorted competition as policy goal by competition as means have also to be taken into consideration.
3. While acknowledging the principle of subsidiarity and the responsibilities of the Member States with regard to organising and financing services of general (economic) interest, the ETUC remains convinced that a Community legal instrument is required. The ETUC and the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP) had already adopted the Joint Charter on Services of General Interest as early as 2000. In 2006 the ETUC and the CEEP drafted framework directives on services of general economic interest and the ETUC took position “Towards a framework directive on services of general (economic) interest” (Statement adopted by the ETUC Executive Committee Brussels on 06-07 June 2006). In November 2006 the ETUC launched a petition on public services calling for a directive on services of general interest and on 19 November 2007 presented the petition with 510,000 signatures to the President of the Commission. What is left open is to determine how these services will be provided, regardless of the status (specifically public) of the party providing those services.
4. The European Commission continues to launch sectoral (Communication on Social Services of General Interest, on Health etc.) and horizontal (e.g. on public-private partnerships) initiatives without defining a general framework within which to anchor services of general interest. The Commission has no coherent approach designed to meet the challenge of maintaining and modernising public services. The ETUC has asked on several occasions for the European Commission and the Member States to pursue a proactive strategy of negotiated modernisation of these services that aims to enhance them and help them to evolve and that is based on general principles such as equal access, high-quality service, fair prices, universality, high-quality work and jobs, security and social justice. Developing a balanced European Union is based, in particular, on high-quality services of general interest which contribute to regional and social cohesion within the framework of a social market economy.
5. The ETUC has to take act of the important changes in Primary Law and will undertake the exercise to review its strategy on public services. The establishment of a legal basis for regulations and the provisions of the protocol does not make a legal framework superfluous, nevertheless it has to be determined which parts of a framework directive can be taken over for one or more regulations and what should be the political priorities. The ETUC undertakes a conference beginning of April 2008 to have an internal debate and to come to policy conclusions.
6. The lack of initiative of the Commission forces the ECJ to fill the gap with its judgements. This is not the task of the court. In the absence of clear legislative rules, the case law of the European Court of Justice comes into play in this field in order to resolve conflicts between the commitments associated with public missions and the freedoms enjoyed within the single market. Case law is subject to change and is applied to individual cases and as a result, legal uncertainty persists. This is why it is even more important for the Commission to adopt a coherent approach in its various initiatives in this field.