The legal framework of services of general economic interest in the ...

to carry on their activity by a simple authorization. The renewed competitive organization of public
services makes Member States less willing to bear the associated management risks. The European
law, through the public tender, ensures the society the efficiency of this delivery by private
operators. The current model of the economic system also gives to Member States the role of
regulators through the establishment of independent authority, rather than holders of enterprises.
In conclusion, privatization of public enterprises not only comes from the will of the
Member States but, rather, is the result of a real imposition made by the European Union. European
law, in many cases, controls, even slavishly, the manner and timing of its implementation,
providing very detailed information about the guarantees needed to detect the undertaking. The
purpose is to achieve transparency and effectiveness of competitive comparison between potential
buyers.
However, the achievement of the latter must be contextualized within the ambit of the
renewed purpose of a social order in the European Union. The promoting of a high degree of
competitiveness of enterprises, based on the principles of free competition, has to be opposed to the
objectives of social progress and high level of employment that acquire their own importance and
whose accomplishment has been introduced in primary law. In this regard, one must observe the
relevant estimation assigned to services of general economic interest. Art. 14 TFEU includes them
between the common values of the European Union and recognizes them as having an essential role
in promoting social and territorial cohesion.
3. Definition of services of general economic interest
Services of general economic interest are mentioned in arts. 14 and 106, para. 2 TFEU.
However, both primary sources and secondary legislation do not contain a full definition of them 4 .
They could be identified as services which citizenship should be eligible even if their providers do
not receive economic benefits 5 .
Their first essential feature is the public service obligation. National and European
authorities impose it on their provider to ensure the achievement of specific objectives of general
interest, such as transports, supply and distribution of energy, postal services and
telecommunications 6 .
Their second characteristic is the universality of service, which could be interpreted in two
ways. Under the jurisprudential profile it is the instrument through which the European Union limits
the State’s freedom to define public service obligations. Under the normative profile it is a device to
guarantee the rights of citizens-consumer. In the latter valence, one must observe art. 36 of the
Charter of fundamental rights of the European Union, i.e. Charter of Nice. It provides that the
European Union must recognize and respect the access to services of general economic interest in
order to promote its social territorial cohesion. As a result, public service obligations are not only
the guarantee of accessibility of the related services to all citizens but also the additional obligations
arising from the need to protect the users, the environment and the public order 7 .
4 Art. 14 TFEU may be interpreted as an instrument for the interpretation of art. 106, para. 2 TFEU which allows
providers of services of general economic interest to escape the full rigour of the competition rules of the common
market. See, WYATT, D. AND DASHWOOD, A. (2006) European Union Law. London: Sweet & Maxwell.
5 ‟Communication on Services of General Interest in Europe”, COM (2000) 580 final, para. 14.
6 ‟Green Paper on Services of General Interest”, COM (2003) 270 final, para. 20.
7 ROSS, M. (2000) “Art. 16 E.C. and Services of General Interest: from Derogation to Obligation”, European Law
Review, 25: 22-38.
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