Social Services of General Interest (SSGI)

2. Competition law
Social Services of General Interest
Another important gate where Community law enters national law is that of
competition rules laid down by the EC Treaty. The provision of social services is frequently
organised, coordinated or otherwise influenced by government entities or by entities for
which the state traditionally takes particular responsibility. As far as this may affect
competition in the social sector, such conduct might, under certain circumstances, be subject
to antitrust rules under Art 81 EC.
Another typical characteristic of the social sector is that certain social services, such as
probation services, assistance services to refugees, etc., are basically only required by public
entities. If these service-demanding entities act as entities which control the markets (markets
that need to be appropriately defined), the requirements of Art 82 EC need to be observed
which prohibit any abuse of a dominant market position. However, invoking Art 82 EC vis-àvis
public entities is not possible whenever their activities are of a non-economic nature.
According to more recent ECJ case-law this also applies to the demand-side behaviour of
public entities if they engage in non-economic activity on the supply side.
However, competition rules basically need to be considered for and against social
entities that engage in economic activity. Owing to the usually small-scale organisation and
local nature of social sector services it will frequently not be possible to prove the necessary
implications for the internal market. Similarly, this also applies to State aid and public
procurement rules. Related case-law rulings and the requirements they entail are summarised
in a separate horizontal chapter (section I.5).
Finally, there is also the option of using Art 86(2) EC to account for the specificities of
social services. This provision exempts, under certain circumstances, services of general
economic interest from the scope of competition rules. Exclusive or special rights granted to
social entities to enable them to fulfil their missions can thus be justified invoking this
provision (section I.2.3).
The substantive contents of Art 86(2) EC are not changed by the general provisions of
Art 16 EC, nor by its new wording under the Treaty of Lisbon, nor by the new Lisbon
Protocol on services of general interest. But the above legal acts underline the special
importance attributed by Community law to services of general interest (section I.2.4). The
same applies to Art 36 of the Charter of Fundamental Rights concerning access to services of
general economic interest, which should be given legally binding force by the Lisbon Treaty.
3. Rules on State aid
Social services are largely funded by public authorities either in full or in part. Such
flows of funding are potentially subject to European State aid monitoring requirements. Here,
too, the de minimis rules and the need for intra-Community implications provide guidance for
exempting social services from the scope of State aid under specific circumstances.
Community law requirements for compensation paid for services of general economic
interest have been defined in greater detail by the ECJ in its Altmark Trans decision and have
then been the subject matter of legislative action by the Commission in the so-called ‘Monti
package’. According to these definitions compensation will escape classification as State aid
and thus will not be subject to notification if four cumulative conditions are satisfied: The
recipient undertaking must actually have public service obligations to discharge, and the
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