The Constitutional and the Lisbon Treaties as Empty Shells
After the adoption of the Treaty of Amsterdam, the pro-regulation coalition kept up the level of mobilization inside as well as outside institutional arenas. The political momentum seemed favourable towards a more socially minded agenda. In December 1997, the EP adopted a new resolution calling on the Commission to adopt a charter laying down the principles for SGI in Europe and to put forward a green and a white paper envisioning the type of legislation which would be necessary to breathe life into the principles and values enshrined in the Treaty of Amsterdam. At the same time, the Commission started to conduct a systematic evaluation of the functioning of SGI in the EU from a market and consumer point of view, as well as at a sectoral and cross-sectoral level. The evaluation tools were designed in conjunction with the CEEP and the Initiative for Public Utilities in Europe, another French-based interest group advocating EU regulation in this realm (Clifton et al. 2005, p. 430). From 1997 onwards, the Commission also made extensive use of the Eurobarometer to evaluate consumers’ satisfaction with the access, quality, price, information and so on of welfare services. While significant sectoral and national differences can be observed, the data provide evidence of an overall convergence of satisfaction levels across the EU, including candidate countries of Central and Eastern Europe (ibid.).
Against this backdrop, CEEP and ETUC sustained their action advocating the adoption of a charter for SGI. They issued a proposal in 2000. The text reflects a broad approach since it covers the consumer rights aspect of SGI, their organization, as well as the issue of democratic participation.
I n parallel with the proposition of the charter, both organizations, together with France and Belgium, proposed to include an article dedicated to welfare services in the Charter of Fundamental Rights. After the unsatisfactory intergovernmental process which led to the adoption of the Treaty of Nice, the Union was occupied with a constitutional process aimed at settling a number of dilemmas prior to the foreseen Eastern enlargement. In 1999, a gathering of representatives of the Member States, members of the national parliaments, MEPs and one representative of the
European Commission was convened to draft a Charter of Fundamental Rights. In spite of strong divisions on the issue, the representative of the French government, Guy Braibant, used his position as a member of the praesidium to obtain the introduction of an article on SGI (Deloche- Gaudez 2001). Article 36 of the Charter stipulates that:
The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaty establishing the European Community, in order to promote the social and territorial cohesion of the Union.
Though SGI seemed to be making their way into EU law, the actual provisions agreed upon foresaw the recognition of welfare services mainly at the discursive level. In fact, the legal power of the Charter of Fundamental Rights remained uncertain for many years as, although adopted in 2000, it did not become legally binding until its attachment to the Treaty of Lisbon which entered into force in 2009. Throughout these years, ETUC (and CEEP) have consistently advocated that the Charter should be incorporated into EU primary law.
The question of an explicit legal basis for the EU to regulate SGI therefore remained a loophole in EU law and a claim from the pro-regulation coalition. The same alliance between civil society groups, ETUC, France and Belgium, and the same logic of influence prevailed during the work of the European Convention on the Future of Europe empowered to elaborate a draft constitution for the EU. An Article III-122 in the European Constitutional Treaty was to replace Article 16 EC with a crucial addition, specifying that ‘European laws’ should determine the principles enabling SGI to ‘fulfil their mission’.
However, the iterations of the doomed European Constitution did not result in such a clear victory on the side of the advocates of SGI regulation at the EU level. The provisions which were finally agreed upon and introduced in the Treaty of Lisbon reflect once again the endless struggle between pro and anti-EU regulation. Two points in particular deserve to be mentioned. First, the term ‘European law’ did not survive the constitutional debacle. In the Lisbon Treaty (or TFEU), Article 16 on SGI stipulates that:
The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall establish these principles and set these conditions without prejudice to the competence of Member States, in compliance with the Treaties, to provide, to commission and to fund such services.
On the one hand, the article now provides, as did the Constitutional Treaty, the long demanded legal basis allowing the EU to legislate and regulate SGI. But the political meaning of the article is more difficult to interpret. While the issue of introducing a legal basis has been contentious among European decision makers, the legal instrument eventually selected is that of regulations. Unlike directives, regulations do not require transposition acts in national law and are directly enforceable. Insofar, regulations are more constraining and prevent national legislative debates. This seems to be very much at odds with the ten-year-long debate on a possible Framework Directive (see Sect. 2) which would have left ample leeway for the Member States to interpret and transpose EU enacted principles into their national legal order. Whereas ETUC and other civil society actors have viewed this article as a victory to their cause, more critical unions are sceptical that the mention of a regulation (and not a directive) will make the use of the legal basis impossible in prac- tice. The second novel aspect in the Treaty of Lisbon is Protocol 26 on SGI. While, at first sight, the protocol seems to strengthen the status of SGI in the Treaty, a careful reading shows that the stress is clearly on subsidiarity. The protocol mentions ‘the wide discretion of national, regional and local authorities’, ‘the diversity between various services of general economic interest and the differences in the needs and preferences of users that may result from different geographical, social or cultural situations’, and claims that ‘the provisions of the treaties do not affect in any way the competence of Member States on SGI’. Again, from a political point of view, the protocol thus seems to counterbalance the introduction of a legal basis by making any direct legislative action or regulatory policy of the EU very contestable. Overall, the Treaty of Lisbon reflects that, compared to the constitutional debates of 1999-2000, the political balance of power has tilted to the side of those defending the status quo, that is the absence of positive integration in the realm of welfare services. In fact, this is completely consistent with the controversy over a Framework Directive on SGI which went on from 2000 to 2007 and ended in deadlock.
-  I nterview with a representative of the Belgian Confederation Generale des Services Publics(CGSP), Brussels, February 2008.