Social Services of General Interest (SSGI)

Eilmansberger/Herzig
approach is that services of general interest are services of an economic nature. Also the
Services Directive distinguishes between economic and non-economic activities. 20
Although we cannot expect the Court or the Commission to provide an exhaustive list
and authoritative clarification, more recent Commission documents include a number of hints
on where the Commission draws the boundary line. The Communication from the
Commission on services of general interest 21 explains that activities conducted by
organisations performing largely social functions, which are not profit-oriented and which are
not meant to engage in industrial or commercial activity, will normally be excluded from the
Community competition and internal market rules. In the opinion of the Commission, this
takes into account several non-economic activities of organisations such as trade unions,
political parties, churches and religious societies, consumer associations, learned societies,
charities as well as relief and aid organisations. 22
Basically, one has to concur with this view. However, inclusion in this listing is no
carte blanche, i.e. it does not mean that the activity of an entity mentioned here will never be
measured against the yardstick of Community law provisions. 23 Exemptions only refer to the
non-economic core activity of the entity in question. Whenever it also engages in gainful
activities outside its political, scientific or social remit, these commercial activities will
definitely be subject to Community rules. In the said Communication the Commission makes
express reference to this fact, but adds that application of Community rules would respect in
particular the social and cultural environment in which the relevant economic activities take
place.
As a rule, this would be based on Art 86(2) EC, which states that undertakings
entrusted with the operation of services of general economic interest are only subject to
competition rules insofar as the application of such rules does not obstruct the performance, in
law or in fact, of the particular tasks assigned to them. 24
20 for details see section I.1.3 below.
21 Communication from the Commission on services of general interest, OJ 2001 C 17/4; see also the
Commission Services’ Explanatory Note for deliberations on the Services Directive, Council Document
10865/04 of 26-6-2004, retrievable from http://ec.europa.eu/internal_market/services/docs/servicesdir/notes/explan-note-activities_en.pdf
22 Communication on services of general interest (FN 21) par. 30.
23 as already argued by Herzig (FN 13) 102.
24 for details see section I.2.4 below.
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