The Development of SGEIs

Whilst Article 106(2) TFEU has been part of EU law from the very beginning, (then Article 90 EEC), it gained in importance when public services were increasingly subjected to the competition law regime as mentioned above.[1] Neergaard thus describes the provision as being directly in the middle of the diverging interest of market rules and social objectives.[2] With the introduction of what is now Article 14 TFEU (then Article 16 EC) by the Treaty of Amsterdam 1997, the requirement that Member States and the Union ensure that SGEIs are enabled to ‘fulfil their missions’ has been inserted into the Treaty principles even though the scope seems to have been limited.[3] The Treaty of Lisbon broadened Article 14 TFEU by the insertion that the ‘economic and financial conditions’ for the provision of such services need to be ensured and a legislative competence in this respect was given to the EU legislator[4] in addition to the competence of the Commission to issue directives and decisions according to Article 106(3) TFEU.[5] Unlike the latter, which has been used for sectoral regulation and the Altmark package (discussed in Sect. 3.3.5 below), there seems to be a certain reluctance to use the new competence.[6] It is also stressed in Article 14 TFEU that the legislative competence is to be used ‘without prejudice to the competence of the Member States’ and Protocol 26 reiterates the wide discretion of the Member States regarding SGEIs (Article 1) and the exclusive competence regarding non-economic services (Article 2). In addition to the Treaties, SGEIs are also mentioned in Article 36 of the Charter of Fundamental Rights of the European Union (Charter), which became legally binding with the Treaty of Lisbon 2007.[7] Aside from the developments in primary law, there have been harmonisation efforts for certain fields of SGEIs in secondary law.[8]

  • [1] Neergaard 2011, p. 176.
  • [2] Neergaard 2009a, p. 17; Neergaard 2009b; p. 195, Neergaard 2011, p. 175. Similarly Sauter2008, p. 167.
  • [3] See Sauter 2008, p. 168 seq, 171 seq; Neergaard 2009b, p. 196 seq; Neergaard 2011, p. 177seq; Sauter 2015, p. 21.
  • [4] This competence is, however, limited to passing regulations, in contrast to the proposed provision in the Constitution, which, in Article III-122, referred to ‘European laws’ in general.
  • [5] See Sauter 2008, p. 169 seq, 172; Neergaard 2011, p. 179.
  • [6] See further Sauter 2015 pp. 23, 27, 222, 241.
  • [7] See Sauter 2008, p. 171 seq; Neergaard 2009b, p. 196 seq; Neergaard 2011, p. 178 seq;Chalmers et al. 2014, Chapter 25 (online resource), p. 26 seq.
  • [8] For more see Chalmers et al. 2014, Chapter 25 (online resource), p. 28 seq, 36 seq.
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