Social Services of General Interest (SSGI)

Eilmansberger/Herzig
examined the problem in the recent BUPA 180 case. A new legal act could appropriately
address this special constellation, which will be of great significance, also and in particular,
for social services.
The option of introducing special threshold levels within the meaning of a de minimis
rule has already been mentioned above.
2.5. Public procurement issues
As explained, social services are subject to only a very lean public procurement
regime. Nevertheless the question arises whether the rules on awarding public contracts take
sufficient account of the specificities of the social sector. The ‘in-house’ option of providing
such services appears to be too restrictive in scope. Rigid jurisprudence in this area makes it
almost impossible for public contracting bodies to have services provided by divested entities
if the latter are supposed to get contracts from other public authorities as well. This may well
result in major rationalisation predictions failing to materialise. The problem has caused a
revision of rules for in-house procurement in the Regulation on public passenger transport
services 181 . 182 A similar thrust could be given to a legal act under Art 16 EC by introducing
general rules for the provision of social services by ‘in-house’ entities. In addition, the above
Regulation on public passenger transport services has also widened the scope for direct
awards of contracts without competition. A similar approach might be considered for social
services. Last but not least enhanced tendering requirements for social services run the risk of
giving highly profitable services to the private sector, while the non-profit bidders will have
to make do with unprofitable services. This problem is exacerbated by the fact that public
procurement law does not provide any option, save under the special rule for sheltered
workshops, to restrict contract awarding to non-profit entities. 183
2.6. Definition of universal-service obligations
2.6.1. Definition of contents
Based on its genesis Art 16 EC is closely connected with the definition of universalservice
obligations. Already under Declaration no. 13 on the Treaty of Amsterdam the
provisions of Article 7d (now Art 16 EC) are to be implemented with full respect for the
jurisprudence of the Court of Justice, inter alia as regards the principles of equality of
treatment, quality and continuity of public services.
This stipulation is now reaffirmed – with legally binding force – in the Treaty of
Lisbon under the annexed Protocol on services of general interest. This Protocol sets out the
common values underpinning Union policies for SGIs; such values also include a high level
of quality, safety and affordability of such services, while ensuring equal treatment, universal
access and upholding user rights. This appears to express a general legal thought which is also
found in Art 36 of the Charter of Fundamental Rights. Under this provision the European
Union respects the access to services of general interest in order to promote social and
180 Case T-289/03, BUPA, judgment of 12-2-2008, not yet published in ECR.
181 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 2007 L 315/1.
182 see also Kahl, Die neue Public Service Obligations (PSO)-Verordnung, ZVR 2008, 83, 85 f.
183 see section I.4.2.3 above.
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