Abstract
Terms such as ‘services in the general interest’ and ‘services of general economic interest’ have received a lot of attention from legal scholars and other practitioners of law during the course of the last decade. The same amount of attention has not been paid to the term ‘public service obligations’, which represents a common mechanism for the realisation of services of general economic interest throughout the Member States of the European Union. However, the term ‘public service obligation’ is not a thoroughly defined concept of law within the European Union and its legal framework. In this chapter, the term is traced back to its origins in French and Anglo-Saxon public administrative law and it is explained, how it is interpreted and applied in the context of EU law. Special focus is placed on the single provision dealing explicitly with public service obligations which can be found in the Treaty on the Functioning of the European Union namely Article 93 on State aid in EU transport law.
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Notes
- 1.
- 2.
Malaret Garcia 1998, p. 57.
- 3.
Freedland 1998, pp. 2–5.
- 4.
See for example, Article 1(e) and para 17 of the Preamble to Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road, and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70, OJ L 315/1 and similar provisions both in Article 3 of the Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC, OJ L 176/37 and Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC, OJ L 176/57.
- 5.
Defeuilley 1999, pp. 25–27.
- 6.
Ibid., p. 26.
- 7.
Ibid., p. 28.
- 8.
Prosser 2005, at p. 96.
- 9.
Ibid., addressing the situation among UK public utilities, p. 30.
- 10.
Prosser 2005 at p. 96.
- 11.
- 12.
Fournier 1993, pp. 13–61.
- 13.
See Fournier 2010 Public Services available at Embassy of France in Washington, available at http://www.info-france-usa.org/spip.php?article641, last accessed 30 November 2010.
- 14.
Ibid.
- 15.
Malaret Garcia 1998, p. 64, see in particular fn. 27.
- 16.
Ibid.
- 17.
Prosser 2005 at p. 103.
- 18.
- 19.
Scott 2000, p. 312.
- 20.
Malaret Garcia 1998, pp. 62–63.
- 21.
Ibid., p. 63.
- 22.
See generally, Freedland 1998, pp. 2–5.
- 23.
- 24.
Prosser 2005, pp. 41–42.
- 25.
Ibid., pp. 44–45.
- 26.
Ibid., pp. 68–69.
- 27.
- 28.
COM(2007) 725, p. 10.
- 29.
Ibid.
- 30.
Defeuilley 1999, pp. 27–28.
- 31.
Ibid., p. 28.
- 32.
Ibid., p. 34.
- 33.
Ibid., p. 35.
- 34.
For a particularly interesting discussion of what constitutes ‘economic activity’ and the scope of application of the rules on free movement and competition, see Odudu 2006, pp. 23–56.
- 35.
Article 106(1) TFEU cf. Articles 101 and 102 TFEU, for an extensive analysis see Buendia Sierra 1999.
- 36.
See COM(96) 443, 2 and COM(2003) 270, Green Paper on Services of General Interest, pp. 6–7. The term’services of general economic interest’ can be found in TFEU Articles 106(3), 14, and in the Charter of Fundamental Rights of the European Union Article 36, see Neergaard 2009 who explains thoroughly how these terms are used in a EU law context. In the Protocol on services of general interest, both the terms ‘services of general interest’ and ‘services of general economic interest’ are employed, for a particularly interesting discussion of the this protocol, see D. Damjanovic and De Witte 2009 at p. 53.
- 37.
Supiot 1998, p. 161.
- 38.
Buendia Sierra 1999, pp. 279–280.
- 39.
Morris 2000, p. 171.
- 40.
See ECJ, Case 149/79 Commission v. Belgium [1980] ECR 3881, concerning the ambit of Member State discretion to reserve certain posts within the public service sector to nationals. The Court of Justice limited the scope of the ‘public service exception’ in Article 45(4) TFEU (ex Article 39(4) EC) to those posts which involved ‘direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities’, para 10. By focusing on the nature of the disputed posts, the approach of the Court can be described as ‘functional’ as opposed to an ‘institutional’ or ‘organic’ test, which would depend on the way in which posts were classified under national law, see Arnull 1999, p. 372.
- 41.
In ECJ, Case C-41/1990 Klaus Höfner and Fritz Elser v. Macrotron GmbH [1991] ECR I-1979, the Court displayed its affinity for efficient application of Union competition law by defining the concept of ‘undertakings’ in Article 101(1) TFEU in functional terms. The functionality of the test is apparent in paragraph 21 where the Court defines undertakings as ‘every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed’, see also Odudu 2006, p. 24.
- 42.
ECJ Case 127/73 BRT II [1974] ECR 318, paras 20 and 21.
- 43.
See Supiot, who compares the European concept of ‘services of general economic interest’ to traditional ‘industrial and commercial public services’ performed by private law organisations in France, Supiot 1998, p. 161.
- 44.
White Paper on Services of General Interest, COM(2004) 374 final, p. 23.
- 45.
European Parliament Resolution on the Green Paper on services of general interest, 14.01.2004, (T5-0018/2004).
- 46.
COM(2003) 270, paras 49–63.
- 47.
However, it must be pointed out that Article 14 TFEU and Article 36 of the Charter on Fundamental Rights refer to ‘services of general economic interest’, whereas the concept ‘services of general interest’ was for the first time mentioned in Protocol 26 on Services of General Interest which entered into force 1 December 2009.
- 48.
Article 45(4) TFEU includes derogation from the freedom of movement of workers, providing that Member States in certain cases may reserve ‘employment in the public service’ to its own nationals. It is clear from the wording of Article 45(4) that this derogation provides a possibility for Member States to subject entire public sectors to a nationality criterion. However, a purely structural interpretation of the term would enable Member States to determine at will, the post covered by the exception. For this reason, the institutional approach to this derogation was rejected and instead a functional approach limitation to the exception was adopted, taking into account the tasks and responsibilities of each post (ECJ, Case C-173/93 Commission v. Belgium [1997] ECR I-3207, para 27). The rejection of an institutional approach to this provision by the Court of Justice has fittingly been described by Sauter and Schepel as ‘… functionalism within the institutional category of State-employed workers’, Sauter and Schepel 2009, pp. 62–63.
- 49.
The European Courts have not defined precisely what aids meeting ‘the needs if coordination of transport’ means, see Greaves 2000, p. 20.
- 50.
Ibid.
- 51.
The European Federation of Public Service Unions (EPSU) abstains from the use of the terms ‘service of general interest’ and ‘services of general economic interest’ referring to such constructions as ‘Eurospeak’, see http://www.epsu.org/spip.php?page=recherche&recherche=eurospeak&x=0&y=0. The ECJ has also demonstrated its fondness for the term ‘public service obligations’, see ECJ, Case C-280/00 Altmark [2003] ECR I-7747. Notice should be taken that the term ‘service of general interest obligation' has indeed been used by the Commission, see Commission of the European Communities, Communication from the Commission, Services of general interest in Europe, 20.09.2000, COM(2000) 580 (2001/C17/04), 19 January 2001, Section 14.
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Acknowledgment
I would especially like to thank my colleagues at the University of Tromsø for their insightful comments on an early draft of this chapter.
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Hennig, M. (2011). Public Service Obligations: Protection of Public Service Values in a National and European Context. 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_8
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