«Services of general economic interest» after the Lisbon Treaty: from exception to positive regulation
Keywords:
EU law, the Treaty of Lisbon, services of general economic interest, competition law, state aid, legal basis, Altmark case-lawAbstract
Public services have been initially considered in a limited way in the EU through the notion of services of general economic interest (SGEI). In the first part of this paper, we examine the case-law of the CJEU to show the application of the exception regarding the SGEI set up in article 106.2 TFEU, where the prioritization of competition law over SGEI predominates. The analysis of its scope of application and also of the very notion of SGEI turns out to be extremely relevant from the point of view of the division of competences between the EU and the Member States. Moreover, the SGEI’s legal regime has been subjected to a double scrutiny; on the one hand, one based on the application of articles 101 and 102 TFEU in the first phase, whereas its application with respect to article 107 TFEU has subsequently generated more cases. In addition to the case-law, EU secondary legislation on services provided by network industries has brought in competition and liberalization in these sectors, while regulating the universal service, which in turn has been arranged as a compulsory minimum on the part of the providers and as a functionally equivalent to the SGEI.In the second part of this paper, we assess how EU Primary Law has evolved towards a higher valuation of the SGEI. The Treaty of Amsterdam first, the Charter of Fundamental Rights secondly, and finally the modifications set up by the Treaty of Lisbon (already announced by the Constitutional Treaty), all together point to a new horizon, much more promising regarding the appraisal of SGEI in EU Law, in particular, with respect of its elevation to the rank of a constitutional value. In addition, we analyze the proposition of a horizontal legislation in the field of SGEI. This legislation may serve to incorporate positive regulation of a transversal character, perhaps with great reach for these services, although some problematic legal issues need to be solved before this possibility takes shape.
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Segura Serrano, A. (2015). «Services of general economic interest» after the Lisbon Treaty: from exception to positive regulation. Revista De Derecho Comunitario Europeo, (38), 59–96. Retrieved from https://recyt.fecyt.es/index.php/RDCE/article/view/39426
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