Opinion of the Economic and Social Committee on "Services of general interest"

(1999/C 368/17)

On 29 April 1999 the Economic and Social Committee decided, under the third paragraph of Rule 23 of its Rules of Procedure, to draw up an opinion on "Services of general interest".

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 5 October 1999. The rapporteur was Mr Hernández Bataller.

At its 369th plenary session on 20 and 21 October 1999 (meeting of 21 October), the Economic and Social Committee adopted the following opinion by 78 votes for, one against, with three abstentions.

1. Introduction

1.1. Clearly the concept of services of general interest is understood differently across the European Union, with perceptions varying between German-speaking, Nordic, Latin and Anglo-Saxon countries. In fact, in some EU Member States the very concept of the public service does not exist. There are, however, some quite similar ideas and closely corresponding situations. (Examples include, "beheer van diensten" in the Netherlands, "gestione di pubblica utilità" in Italy, "public utilities" in the United Kingdom, "Daseinvorsorge" in Germany, and the "service public" in France.)

1.2. A distinction is drawn between "services of general interest" which cover both commercial and non-commercial or "extracomercium" activities, and "services of general economic interest" which cover commercial activities alone, in other words, activities performed or likely to be performed in the marketplace and which constitute a company's main pursuit. This second category of services is subject to competition rules and Article 86 of the Treaty may be applied(1). This is the case for network services in the transport, energy and communications sectors.

1.3. Services of general interest are defined essentially by the purpose of the activity performed. The activity should satisfy a "generalised"(2) and "basic" need among members of the community, for a group of people linked by ties of equality and solidarity. Member States are given considerable freedom to assess the needs of the community so that they may define for themselves the objectives of national policy. European Court of Justice case law has recognised security, defence, the protection and/or the social cohesion of the community as examples of such needs.

1.4. Services of general interest should satisfy needs such as education, health, communications, information, the supply of drinking water and transport, which are crucial to safeguarding the basic freedoms of individuals and improving quality of life for everyone. These are economic and social activities which are not usually left entirely open to market forces as there is generally some form of regulation and monitoring input from public authorities.

1.4.1. "Market failings" are one of the main reasons for the existence of public enterprises or the adoption of regulations by the state. These failings, where the market does not allocate services and goods efficiently, mean that many people on very low incomes depend on such services if they are to consume products which are not accessible for them solely through commercial channels. Indeed it is one of the basic postulates of the European social model that social cohesion is threatened in the medium or longer term if the needs of a sizeable section of the population are not properly satisfied.

1.4.2. This opinion is designed to provide - after a short summary of the Commission Communication on services of general interest - an account of the rules currently governing the various types of service, followed by the situation in the wake of the Amsterdam Treaty. A key section of the opinion asserts certain principles which the Committee believes should underpin services of general interest, and discusses some general and specific aspects of these services.

2. Commission Communication of 11 September 1996 on services of general interest in Europe(3)

2.1. The Commission clarifies the existing terminology in the field and provides the following definitions:

- Services of general interest, this term covers market and non-market services which the public authorities class as being of general interest and subject to specific public service obligations.

- Services of general economic interest, this term refers to market services which the Member States subject to specific public service obligations by virtue of a general interest criterion.

- Public service, this is an ambiguous term since it may refer either to the actual body providing the service or to the general interest activity or role assigned to the body concerned. Specific public service obligations may be imposed by the public authorities on the body rendering the service in order to facilitate or enable provision of the service.

- Universal service(4), this concept refers to a set of general interest requirements which should be satisfied by specific activities throughout the Community. The object of the resulting obligations is to make sure that everyone has access to certain essential services of high quality at prices they can afford.

2.2. The communication takes the view that services of general interest contribute to European competitiveness and social solidarity, as well as to quality of life in the EU. In many cases, such services even constitute genuine social rights.

2.3. It is acknowledged that the aim of the Community is to boost the competitiveness of the European economy in an increasingly competitive world and to offer consumers wider options, with better quality and lower prices, contributing at the same time, through its policies, to strengthening the economic and social cohesion of the Member States and to reducing certain inequalities.

3. Regulations in the transport, energy, infrastructure and information society sectors

3.1. With regard to transport by rail, road and inland waterway, Council Regulation (EEC) No 1191/69 of 26 June 1969 stipulates that in order to guarantee the provision of adequate transport services, taking into account social, environmental and spatial planning considerations in particular, or to offer special pricing arrangements for specific categories of passengers, Member States may enter into public service contracts with transport undertakings. This should ensure guaranteed regularity, capacity, routes, prices, timetables and continuity of service.

There are also other practical considerations which argue for the continued existence of public service contracts. For instance, an efficient and passenger-friendly public bus and coach service can solve the problem of congestion on some of the EU's roads - problems created by the increase in the number of private cars in circulation.

3.1.1. Previous ESC opinions on transport(5) consider that in accordance with the subsidiarity principle, it should continue to be possible for the competent local authorities to take decisions on matters such as the type of organisation or qualitative and quantitative requirements to be met by operators, acting in the light of local requirements.

3.1.2. Applying the subsidiarity principle means preserving the Community acquis and the institutional balance, without prejudice to the principles developed by the Court of Justice with regard to the relationship between Community and national law. In all cases, the measures adopted need to be consistent with the satisfactory attainment of the objective in mind and the need for effective implementation, leaving it up to national or local authorities to decide on the ways and means, since it is the responsibility of these authorities to develop the strategic planning of services of general interest.

3.1.3. In air transport, Council Regulation (EEC) No 2408/92 of 23 July 1992 regulates access for Community air carriers to intra-Community routes and the public service obligations imposed on scheduled air services, as regards minimum frequency, timetables, types of aircraft used and capacity(6).

3.1.4. In maritime transport, Article 4 of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) allows a Member State to conclude public service contracts or impose public service obligations limited to requirements concerning ports to be served, regularity, continuity, frequency, capacity to provide the service, rates to be charged and manning of the vessel(7).

3.1.5. Safety is an important aspect of Community transport policy. Transparency, quality and worker protection are interlinked, and it is in the public interest to strike a balance between rural and urban areas, for which public resources must be used.

In the case of services of general interest, any limitation imposed with respect to competition must be necessary and proportionate to the objectives pursued. The public authorities should assess the restriction on competition necessary to enable enterprises to offer public services, taking into account the economic conditions under which these enterprises operate, the costs they must bear and the legislation with which they must comply.

3.2. With regard to the energy markets, liberalised in Directive 96/92/EC on electricity and Directive 98/30/EC on gas, the markets are opening up, and rules have been introduced for access to the network, separate accounting, the calculation of tariffs, the supply obligation and the possibility of imposing public service obligations.

3.2.1. The electricity directive establishes a mechanism enabling Member States to take into account public policy considerations without, in the normal course of events, restricting the liberalisation process. Member States may establish five categories of public service obligations, namely environmental protection, safety, regularity, quality of supply and pricing policy, and adopt the measures necessary to comply with these obligations.

3.2.2. The gas directive stipulates that Member States may impose public service obligations on natural gas undertakings, provided that such obligations are justified by the general economic interest. The obligations must fall into five specific categories, namely security of supply, regularity, quality, price of supply and environmental protection.

3.3. In the field of telecommunications, Directive 97/33/EC of 30 June 1997(8). imposes the obligation to provide a universal service, and the licensing directives adopted in 1997(9). and Directive 98/10/EC on voice telephony make it possible to impose public service obligations on operators in order to meet a clearly-define series of "essential requirements"(10).

3.4. Common rules have also been introduced for developing the postal sector and improving the quality of its service, with the gradual and measures opening of markets to competition. The basis of the measure proposed is to safeguard the universal postal service in the long term. The universal postal service means providing high-quality service countrywide, with regular guaranteed deliveries at prices everyone can afford. This involves the collection, transport, sorting and delivery of letters, as well as printed matter, catalogues and parcels within certain weight and price limits.

3.5. Exclusive or special rights must be awarded to undertakings through tendering procedures based on objective, non-discriminatory and transparent criteria and the awarding of tenders should mostly be limited in time.

4. The situation following the Amsterdam Treaty

4.1. The Community's objectives include promoting harmonious and balanced economic development throughout the Community, sustainable and non-inflationary growth that is respectful of the environment, a high degree of convergence of economic performance, enhancing the standard of living and the quality of life, competitiveness, and achieving economic and social cohesion and solidarity among Member States.

4.1.1. These aims will be served by the establishment of a common market and of an economic and monetary union and by the implementation of the policies and joint actions provided for in the Treaty, including arrangements for ensuring that competition within the internal market will not be distorted.

4.2. Article 86(1) of the Treaty establishing the European Community (ex Article 90) states that in the case of public undertakings and undertakings to which Member States grant special or exclusive rights(11), Member States will neither enact nor maintain in force any measure contrary to the rules contained in the Treaty, in particular to those rules provided for in Article 12 (discrimination) and Articles 81 to 89 (practices restricting competition and state aids). Other Treaty provisions are generally invoked in conjunction with Article 86, such as Article 28 (free movement of goods), Article 49 (freedom to provide services) and Article 43 (right of establishment).

4.2.1. Article 86(2) states that undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly will be subject to the rules contained in the Treaty, in particular to the rules on competition, insofar as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Community. Moreover, Article 86(3) states that the Commission will ensure the application of the provisions of the article and will, where appropriate, address appropriate directives or decisions to Member States.

4.3. Article 16 of the EC Treaty - added by the Treaty of Amsterdam - incorporates a specific reference to services of general economic interest. The article highlights their importance as a "shared value" of the EU and their role in promoting social and territorial cohesion. This precept should be judged as an effort to strike a balance between competition rules and the need to provide public services while complying with the provisions of Article 86.

4.4. Furthermore, a protocol on the system of public broadcasting has been incorporated, emphasising the specific nature of the system in relation to social and cultural requirements. Specifically, it enables Member States to finance television channels "insofar as such funding is granted to broadcasting organisations for the fulfilment of the public service remit as conferred, defined and organised by each Member State, and insofar as such funding does not affect trading conditions and competition in the Community to an extent which would be contrary to the common interest". The protocol aims to strike a balance between the enforcement of competition rules and the need to guarantee a public television broadcasting service.

4.5. There has also been a declaration on German public credit institutions acknowledging that Community competition rules may take into account services of general economic interest provided by public credit institutions in Germany and the facilities granted to them to compensate for the costs connected with such services.

4.6. The Cologne European Council held on 3 and 4 June 1999(12) takes the view that, at the present stage of development of the European Union, the fundamental rights applicable at Union level should be consolidated and highlighted in a charter which would contain: the fundamental rights and freedoms as well as basic procedural rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and derived from the constitutional traditions common to the Member States, as general principles of Community law. The Charter should also include the fundamental rights that pertain only to the Union's citizens. In drawing up such a Charter account should furthermore be taken of economic and social rights.

5. Guidelines which services of general economic interest should adhere to

5.1. Drawing on various publications and communications concerning resolutions issued by the Council, Commission and European Parliament and on other sources, as well as some ideas of its own, the Committee has prepared a list of guidelines which general interest services should respect.

5.2. The Committee considers that these guidelines will be very useful for the provision of these services and presents this preliminary list for public debate.

5.3. As a citizens' right, services of general economic interest should operate according to the following guidelines:

5.3.1. Equality: all citizens are entitled to equal access to services of general interest. The term equality is to be understood not as an obligation of uniformity, rather as prevention of any unjustified discrimination based on social or personal status in relation to service provision.

5.3.2. Universality: for services supplied, basic services should be universally provided.

5.3.3. Reliability: the provision of services of general interest should be continuous, regular and uninterrupted. Irregular operation or suspension of services will be restricted to specific cases laid down in the regulation governing the sector.

5.3.4. Participation: users should participate actively in the development of services of general interest. The purpose of such participation is to protect citizens' rights with regard to the adequate provision of services and to promote the cooperation of the service-providers.

5.3.5. Transparency: service-providers will ensure that users receive full information on the service provision, especially on the public service obligations and tariffs.

5.3.5.1. To this end, service-providers will inform the users of the financial and technical arrangements for the provision of services and of any changes affecting the service, publishing the texts containing the relevant regulation.

5.3.6. Simplification of procedures: as far as possible service-providers will simplify the procedures to be followed by users and will supply the appropriate explanations.

5.3.6.1. Moreover, where possible they will use standard forms, striving to simplify and explain the methods of subscribing to and paying for the services.

5.3.6.2. In all cases, service-providers will introduce internal procedures for addressing complaints made by users. These procedures will be accessible, easy to understand and implement, ultimately ensuring that the service-providers take account of the complaints made by users and consumers' associations, and will facilitate the right to bring a complaint before the regulator and, generally speaking, access to the legal system(13).

5.3.7. Profitability and efficiency: services of general economic interest will be supplied efficiently and profitably. Providers will adopt the measures necessary to achieve these objectives.

5.3.8. Quality of services: service-providers will identify the factors influencing the quality of services and, on this basis, publish quality and quantity standards which they will pledge to observe.

5.3.8.1. Compliance with these standards will not be negotiable. Exceptions to these standards will only be granted if it is advantageous to users and will be monitored by users in periodic meetings.

5.3.9. Adequate provision of services: services of general economic interest will be adapted to changes in the needs of the community and to technical and economic progress.

5.3.10. Evaluation of results: the arrangements for providing public services will be periodically reviewed by the service-provider. To do so, service-providers will collect information on, inter alia, user-satisfaction.

5.3.11. Cooperation between service-providers: even if the service is provided in a competitive environment, service-providers will strive to cooperate to ensure compliance with these principles.

5.3.12. Affordable price: the conditions for access to these services should be at a price citizens can afford. The guiding principle should be "reasonable cost".

5.3.13. Environmental protection: the definition and operation of services of general economic interest should take account of environmental protection requirements as a key component of social and territorial cohesion.

6. General comments

6.1. The Committee takes the view that a balance should be struck between competition law and services of general interest in the transport, energy and telecommunications sectors, especially as Article 86 (ex Article 90) is worded "negatively", in that it allows non-application of Treaty rules when their application would obstruct the provision of the services of general interest assigned to these sectors.

6.2. However, the new Article 16 imposes a "positive" obligation on the Community and the Member States, each within their respective powers, to take care that such services operate on the basis of principles and conditions which enable them to fulfil their missions. To this end the Committee considers that a balance should be struck between the profitability of operators in the marketplace and the obligations ensuing from social, labour, market economy, safety and environmental criteria and from the basic objectives of sustainable development.

6.2.1. On the other hand - in the road transport sector for instance - when operators provide a service of general interest certain aspects should be guaranteed by the authorities, including a description of the objective pursued by the service, financial compensation, incentives, a description of exclusivity rights, duration and geographical scope, and the facilities made available by the various parties.

6.3. The Committee takes the view that services of general economic interest occupy a place in the shared values of the Union. They encourage a balanced European integration policy by facilitating a better political and legal framework for people and businesses.

6.4. It also places importance on their role in promoting the EU's economic and territorial cohesion. In particular, land management and spatial planning will have to be taken into account in future; moreover, the "networks" should not only follow economic dictates, but also take other social considerations into account.

6.5. The Committee would like these services defined and delivered according to the principles of subsidiarity and proportionality.

6.6. With regard to the public broadcasting system, the Committee takes the view that:

6.6.1. cultural considerations should be taken into account when defining the public broadcasting service;

6.6.2. the public service role of the broadcasting sector involves specific requirements in terms of programming and other obligations which the operators, irrespective of their public or private ownership, should not have to bear alone;

6.6.3. the public service role of broadcasting is linked to promoting the democratic, social and cultural needs of each society and minority groups, and the need to preserve pluralism in the media, guarantee high-quality content, safeguard linguistic and cultural diversity, and protect minors;

6.6.4. the funding of public service broadcasting should take into account the principles of proportionality and transparency, and should not affect market conditions or free competition in the Community to the detriment of the common interest;

6.6.5. when an operator also engages in purely commercial activities, i.e. over and above its public service duties, there should be separate accounting to ensure that public funds are not channelled into commercial activities.

6.7. Information society

6.7.1. All aspects of the so-called "information society" are capable of revolutionising the relationship between businesses and consumers, as well as the very nature of consumption.

6.7.2. The Committee considers that services of general economic interest should be made to play a crucial role in the information society, and since the establishment of the information society should not generate further social exclusion, the concept of universal service and its adaptability to technological innovations should play a prime role.

6.7.3. The Committee considers that the information society(14):

- may serve as an instrument of regional policy;

- should encourage the development of a network of IT centres;

- facilitates the integration into the mainstream of European society of people at risk of exclusion (the disabled, inhabitants of isolated or particularly remote regions);

- means that the European Union must develop a cultural identity which, while respecting the wealth of national and regional variations, will serve to underpin the information society in philosophical and ideological terms;

- by seizing the opportunities offered by the licensing system, and while maintaining balanced tariffs, encourages lower charges for accessing and using the Internet, at the same time ensuring security and privacy for users.

6.8. Transport and energy networks

6.8.1. While it is a fact that universal service in the transport and energy sectors need not necessarily be on the same scale as other economic services of general interest, the Committee considers that liberalisation so far has not taken adequate account of the crucial components of economic, social and territorial cohesion, as up to now the criteria of economic efficiency have taken precedence.

6.8.2. The Committee takes the view that measures adopted in the future should consider not only economic criteria but also those based on the need to maintain employment, quality of service and the level of satisfaction among users, given that the ultimate aim should be to attain and strengthen social well-being. Thus, for instance, environmentally-friendly energy production, from combined power plants, should be taken into account so as to avoid what is happening in Germany where this form of energy is at a disadvantage because it is not competitive compared with energy obtained under less safe conditions.

7. Conclusions

7.1. Services of general economic interest will play a crucial role in promoting economic and social cohesion and territorial solidarity, establishing "shared values" which the EU should preserve and encourage.

7.2. The Committee takes the view that promoting economic and social cohesion in the provision of services of general economic interest means that people should always have access to such services or benefits irrespective of their social situation or place of residence, since the objective of these services is to attain and preserve social and territorial cohesion.

7.3. With regard to the service-users, the aim should be to guarantee the right balance between liberalisation - which requires more competition - and appropriate measures based on the guidelines already described (affordability, quality of service, transparency of information, etc.).

7.4. At all events, there is a need to ensure that the economic and legal interests of consumers, who through their associations form part of "civil society", are taken into account in a more consistent and sustained fashion across the spectrum of EU policies.

Account must also be taken of the situation of the operators who help to provide these general interest services, specifically the economic conditions under which they operate, the costs that enterprises must bear and the legislation with which they must comply.

7.4.1. The Committee considers that in a competitive system all the participants should contribute proportionally to the cost of the universal service.

7.5. The Committee considers that every citizen has the right to equal access to the provision of services of general economic interest, the purpose of which is to boost the general well-being. At all events, to maintain the European social model a balance should be found between services of general interest and the rules of the single market, free competition especially.

7.6. The Committee therefore urges the Council, the European Parliament and Commission to include the citizens' right to equal access to the provision of these services in the Charter of Fundamental Rights which the Cologne European Council agreed to draw up.

7.7. The Committee urges the Council, the European Parliament and the Commission to ensure, as far as possible, that these services continue to be provided after the conclusion of the next round of WTO negotiations.

Brussels, 21 October 1999.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI

(1) Judgments of the European Court of Justice: of 15.2.1993, Poucet et Pistre (C-159 and 160/91, European Court Reports, p. 1-637); of 27.10.1993, Lagauche e.a. (C-46/90 and 93/91, European Court Reports, p. 1-5267); of 19.1.1994, SAT- Fluggesellschaft (C-364/92, European Court Reports, p. 1-143); of 18.3.1997, Diego Cali & Figli (C-343/95, European Court Reports, p. 1-1547)

(2) Conclusions of Advocate-General Tesauro of 9 February 1993 in relation to the Corbeau case, judgment of 19 May 1993, C-320/91, European Court Reports, p. 1-2533, point 19.

(3) OJ C 281, 26.9.1996, p. 3.

(4) The universal service in the telecommunications sector is defined by Article 2(1) (g) of Directive 97/33 as "a defined minimum set of services of specified quality which is available to all users independent of their geographical location and, in the light of specific national conditions, at an affordable price".

(5) OJ C 138, 18.5.1999, p. 7.

(6) OJ L 240, 24.8.1992, p. 8.

(7) OJ L 364, 12.12.1992, p. 7.

(8) OJ L 199, 26.7.1997, p. 32

(9) OJ L 117, 7.5.1997, p. 15

(10) Essential requirements: economic or non-economic reasons which may cause a Member State to impose conditions on the provision of services.

(11) These terms are to be understood as follows:

- exclusive rights: rights guaranteed by a Member State restricting the provision of certain services to a single undertaking through legal, regulatory or administrative provisions, granting the undertaking the exclusive right to provide a service or perform an activity in a specific geographical area.

- special rights: rights awarded by a Member State to a limited number of undertakings through legal, regulatory or administrative provisions which, in a specific geographical area:

- grant exclusive authorisation - without using objective, proportional or non-discriminatory criteria - to two or more undertakings, to provide a service or perform an activity,

- designate (without using the above criteria) several competing undertakings to provide a service or perform an activity,

- award the undertaking(s) (without using the above criteria) legal or regulatory advantages which substantially affect other undertakings' ability to provide the same service or perform the same activity in the same geographical area under practically identical conditions.

(12) Conclusions: points 44 and 45 and Annex IV.

(13) These procedures should be based on the principles laid down in the Commission recommendation on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes (COM(1998) 198 final of 30 March 1998), and, as far as possible, will encourage the use of the European claims form for consumers.

(14) "Oulu declaration" of 7.9.1999.