Social Services of General Interest (SSGI)

Social Services of General Interest
assessment (no more actual infringement is required) conducted by the Member States and
then reviewed by the Commission and the ECJ.
1.3.2. Scope of the Directive
The derogations from the scope of the Directive, which were heatedly debated during
the decision-making procedure and resulted in a widening of permitted derogations, are thus
only of contingent significance in terms of substantive law. They only release the Member
States from their ex ante control and reporting requirements, but they do not release them
from applying primary Community law. In the latter instance individual cases will continue to
be examined ex post.
Areas not covered by the SD are first the non-economic services. The abovementioned
distinction between economic and non-economic services is thus also of direct
relevance for the application of the SD. What is unclear in this context is the meaning of Art
2(2)(a). It expressly excludes non-economic services of general interest from the scope of the
Directive. But anyway, services within the meaning of the SD are only those provided for
remuneration under Art 50 EC. 86 Services qualified as non-economic according to case-law
have thus, in analogy to primary law, never been covered by the SD. The derogation under
Art 2 is therefore only a clarification.
The situation is different for certain types of health and social services. As a rule, they
will have to be seen as services of an economic nature and will thus be subject to primary law.
However, they are expressly exempted from the SD. First and foremost, they include
healthcare services irrespective of their private or public form of organisation and their type
of funding. In the opinion of the Commission 87 healthcare covers healthcare and
pharmaceutical services provided by health professionals to patients to assess, maintain or
restore their state of health. This means that services which are provided in Austria in the
form of nursing care or social-medical services are provided outside the classical healthcare
sector. Certain forms of social services are also excluded, such as those related to social
housing, childcare and support of families and persons permanently or temporarily in need.
They are, however, only excluded to the extent that they are provided by the State itself, by
providers which are mandated by the State, or by charities recognised as such by the State.
The Commission goes on to explain that the notion of charities recognised as such by the
State includes churches and church organisations 88 . This, however, should not be seen as final
restrictions. Profit-making entities definitely fall within the scope of the SD. This makes
distinction very difficult, whenever a Member State does not distinguish between public
services and profit-making services, while subjecting the service as such to specific rules. In
such a case adjustments to SD requirements under Community law would only be necessary
for profit-making providers. If this is bound to favour non-profit providers, the Member State
concerned could use constitutional arguments unless there are factual grounds for
differentiation.
85 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in
the internal market, OJ 2006 L 376/36 (hereinafter SD)
86 see definitions in Art 4(1).
87 see Handbook on implementation of the services directive, retrievable from: http://ec.europa.eu/internal_market/services/docs/services-dir/guides/handbook_en.pdf
(10-06-2007) 13.
88 Handbook (FN 87) 14.
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