A step towards recognition. Political forces, especially in France, which are in favour of a European legal framework for Services of General Interest (SGI) feel that the time has come for new initiatives. The European Parliament's adoption last month of the Herzog resolution, coming alongside the Charter of Fundamental Rights, Court of Justice rulings and other precedent acts, is seen as a new step towards the recognition of the essential nature of these services for the Union. Misunderstandings and differences of opinion subsist, but observers and political forces believe that Parliament's vote represents a significant stage in a long line of attempts at clarification and understanding. Immediately after the vote, rapporteur Philippe Herzog described the result as "positive overall", despite the changes he allowed to be made to his initial draft in order to ensure its adoption. Mr Herzog, a member of the French United Left, the German and Luxembourg socialists Bernhard Rapkay and Robert Goebbels had managed to get several amendments in favour of specific treatment of SGIs in the Union through the plenary. The centre-right was in principle opposed, but these amendments got enough EPP and Liberal votes to be approved, especially from the French, sometimes quite close: 266 votes against 253 for the Goebbels amendment reversing the fundamental principle which had been retained by the Parliament's economic committee. This means that the text states that it is the competition rules that must be compatible with public service obligations, and not the other way round.
The institutional dimension is essential. The scope of the resolution was then clarified and completed by the "Lettre de Confrontation Europe", a publication written by Philippe Herzog himself. The editorial, signed by Claude Fischer, the association's Secretary General, stresses the institutional dimension. By its vote, he argues, the Parliament is opposing the Commission's continuing to decide alone on measures to apply general principles valid for SGIs: "it is the legislator [Council and Parliament] which will take the decision. MEPs refused to give full powers to Mario Monti, Competition Commissioner, who had hoped, after the Court of Justice's Altmark ruling, to be able to decide alone on rules governing SGI funding". In reality, the Competition Commissioner decides nothing on his own, the Commission decides as a College. But it is clear that Parliament's left has got article 60, paragraph 3 in its sights, which gives the Commission the responsibility for adopting directives or decisions on observation of competition rules by companies managing services of general economic interest. He feels that this matter should follow normal legislative procedure, whereby the Commission proposes, and Parliament and Council decide: this is the principle of co-decision. It is not just a question of principle (which caused heated debates between the Council and the Commission, not too many years ago, on the liberalisation of telecoms), but also one of topicality.
The draft being discussed by the Commission is contested. Why topicality? Because the Commission is putting together the directive which could be described, somewhat freely, as the "application text" of the Court of Justice's Altmark ruling. This ruling, from 24 July, has reaffirmed the legitimacy of State aid to the cost of public service obligations; but at the same time condemned paying too much towards it. The operating modalities need to be quite clear: how can the limit of allowable aid be determined? The Competition services, under Commissioner Mario Monti, drew up the draft directive currently under discussion between the various directorates general. The Commission's initial timetable planned its approval by College on 4 February; this has slid back to 18 February, and could be postponed again. Even though this is not an official draft, part of it has been contested by the Parliament both on the principles behind it and its content. The Herzog resolution, which was adopted by the EP with a clear majority (383 votes in favour against 123) "calls upon the Commission not to use article 86 paragraph 3" to define which State aid is allowable and which is not, as it feels that the Commission should be looking for a "provisional derogation" to the ban on aid, and that the general rules should be defined by Parliament/Council co-decision at some point. The Parliamentary resolution explicitly calls upon the Commission to take position on a European legal framework for SGIs, to be established "under the co-decision procedure", no later than April. However, if the Commission is to speak about the overall legal framework in two or three months time, is it logical that it adopts beforehand, a binding directive on the essential aspect of financial compensation for public service obligations? Does this not exceed it remit insofar as it is seeking to interpret the jurisprudence of the Court itself?
To this general remark can be added specific criticism to the draft directive being discussed. Its starting point is that companies (public or private) that have a general economic service commitment should not cost any more than ordinary companies working without state subsidies. This principle is difficult to argue against: over-compensation, which costs the public dearly, should be avoided, public enterprises should not be blatantly over-staffed, paid for by the tax payer and so forth. Arguments against the principle begin with the application of criteria. I'll give two examples of what comes in for some opposition: a) the project allows for services to be provided uniquely or largely by companies (and not for the public) are not to be considered as services of general economic interest; b) given that "compensation" for the management of minor services will be automatically authorised, the study project sets a ceiling on the annual turnover that is less than EUR 40 million and a subsidy that does not exceed 15 million. Limits which are so low, added to certain supplementary conditions to those indicated in the Altmark ruling, expand the notion of over-compensation to the detriment of social, educational and environmental providers.
Elisabeth Guigou's contribution. At this point in the debate and when there are still uncertainties about the attitude of the Commission (will the directive effectively be approved on 18 February? Will the initial draft be amended?), the French Europartenaires association presented, during a demonstration organised by the German Friedrich-Ebert foundation in Brussels, its report, "In Europe, public service is general interest". Established by a work group chaired by Christian Vigoroux, this document is the result of intense reflection of I will just touch on its conclusion: the SGI could be among the driving forces for economic growth and effectively contribute to improving competitiveness in Europe.
In presenting this document, Elisabeth Guigou, founding president of Europartenaires said that she thought that the moment had come for pursuing full and entire recognition of the services of general interest at a European level. The road has been long, because at the beginning, the term "public service" was incomprehensible to a significant part of Europe. Today, the expression "services of general interest is now part of Europe and is gradually gaining ground. Member States which rejected the concept noticed that in reality they were carrying it out. During negotiations over the Amsterdam Treaty, "We got our foot in the door". Then came the Charter of Fundamental Rights, European Commission documents (including last year's "Green Paper"), several Court rulings from the Court of Justice and the Herzog resolution laid down the foundations for a legal framework. We're moving forward slowly in the right direction, notably within the EP and the European Commission remains open (but it should not be given a blank cheque). Ms Guigou considers that the draft constitution contains a sufficient basis. The legal framework should evolve as demands will change (the health risks at an international level is a recent concept). Work should continue and allies should be found. Ms Guigou also vigorously underlined that French demands on SGI do not at all contradict commitments on opening up the markets (with reservations for rail passengers) or competition with public and private SGI providers: France will respect its commitments.
The chairperson of the work group, Christian Vigouroux reckoned that the approach to a European legal framework should not be "defensive" but should actively come up with proposals. Approaches from Member States are still quite different but in Vigouroux's opinion, they are not that far removed because "the essential exists in all countries, the reality is there". It is difficult to translate this reality into words but it is possible: the EU has succeeded in defining concepts that are much more complex. The numerous papers have to be put together to get them to coincide, to sort through them and translate them in legal terms. MEP Bernhard Rapkay (German Socialist group) highlighted the unity of Germany and France's goals: the German demand for safeguarding the autonomy of the regional and local authorities when providing services of general interest is not incompatible, in his opinion, with the European legal framework. What counts, is the model of society being pursued. Bart Ouvry, plenipotentiary minister to the Belgian Embassy in Paris, asserted that Belgium was on France's side.
I have tried to provide a basis for understanding what's at stake - essential for the European model of society and the accompanying theses. Our readers have the full text for the Herzog resolution (published in N.2345 of our EUROPE Document series 23 January) and the reports of the debate (bulletin 14 January) and the parliamentary vote (15 January), as well as the different reactions from the political groups at the EP and the business community (20 January). I will soon be trying to draw some conclusions from the Community point of view.
(FR)