EN Official Journal of the European Union C 248/149

Opinion of the European Economic and Social Committee on the ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions — Reform of the EU State aid Rules on Services of General Economic Interest’

COM(2011) 146 final

2011/C 248/26

Rapporteur-General: Mr Raymond HENCKS

On 23 March 2011 the European Commission decided to consult the European Economic and Social Committee, under Article 304 of the Treaty on the Functioning of the European Union, on the

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Reform of the EU State Aid Rules on Services of General Economic Interest

COM(2011) 146 final.

On 3 May 2011 the Committee Bureau instructed the Section for Transport, Energy, Infrastructure and the Information Society to prepare the Committee's work on the subject.

Given the urgent nature of the work (Rule 59 of the Rules of Procedure), the European Economic and Social Committee appointed Mr HENCKS as rapporteur-general at its 472nd plenary session, held on 15 and 16 June 2011 (meeting of 15 June), and adopted the following opinion by 136 votes to 6, with 16 abstentions.

1. Recommendations

1.1 The EESC is pleased that, as part of its dialogue with stakeholders, the Commission has begun to discuss reviewing and clarifying the rules governing the financing of services of general economic interest.

1.2 The EESC fully supports a new, more diversified and proportionate approach to the different types of public service and agrees with the notification exemption for small-scale public services and certain social services.

1.3 In this regard, the EESC urges the Commission to clarify, for each of the methods for financing compensation for public service obligations, whether they come under the Altmark criteria and in consequence are not subject to the ‘State aid’ rules.

1.4 With a view to no longer having to depend on an exclusive case-by-case approach, whether legislative or judicial, the Commission's intention to clarify the distinction between services of general economic interest (SGEI) and non-economic services of general interest is to be welcomed. It should however be understood that the EESC remains convinced that, in view of the difficulty of defining the concept of economic/non-economic services of general interest, the focus should be placed not on their economic or non-economic nature, but rather on the particular tasks of the services concerned and on the public service obligations.

1.5 The EESC therefore considers that, in this context, the rules on compensation for public service obligations in connection with state aid could be more democratic for the tens of thousands of public authorities who will have to implement them if they were subject to the application of the ordinary legislative procedure under Article 14, providing this complies with the Treaty.

1.6 While the call to the Member States to gives greater weight to considerations of efficiency is highly laudable, it must not however focus on economic criteria alone, but also take account of the social, territorial and environmental aspects and consider criteria such as quality, results and sustainability.

1.7 Indeed, the EESC is concerned that introducing the efficiency concept might amount to bringing the assessment criteria of the decision and the framework into line with the fourth criterion of the Altmark judgment. This could apply to all compensation, including that paid for public services which are exempt from notification.

1.8 With regard to the Commission's intention to clarify the limits imposed on Member States when defining an activity as an SGEI, the EESC points out that for years it has been calling for clarification of the implementing conditions of Article 106(2), which is subject to divergent interpretations.

2. Introduction

2.1 A diverse patchwork of public financial aids exists across the various Member States, ranging from State aids for employment, training, investment, research, environmental protection, small and medium-sized enterprises, rescue and restructuring of companies in trouble, families, individuals experiencing difficulties, right through to services of general interest (SGI).

2.2 With regard to the rules governing competition and the internal market, the Treaty on the Functioning of the European Union considers State aid to be an advantage, of any form whatsoever, selectively granted to one or more undertaking by the national authorities.

2.3 State aid is only considered as such if it meets all the following criteria: — it entails a transfer of public resources by national, regional or local authorities, either directly or indirectly through a public or private body, of whatever form (aids, subsidies, loan guarantees, inputs of capital, other contributions, etc.); — it does not fall within the scope of general measures, but remains selective and is discriminatory with regard to other undertakings or bodies; — provides the recipient (private undertaking or public body, non-profit or otherwise) with an economic advantage that it would not have received in the normal scope of its economic activities; — it has a potential effect on competition and trade between Member States.

2.4 The State aids indicated above are, in principle, forbidden by the Treaty (TFEU Articles 107 and 108); some of them are nevertheless allowed when justified by objectives of common interest (services of general interest, social and regional cohesion, employment, research and development, sustainable development, promotion of cultural diversity, etc.) and in order to correct market failures, provided that they do not distort competition to an extent contrary to the EU interest.

2.5 The possibility left to the Member States of allocating State aid has been hedged in by a series of legislative acts and a rich and developing body of European Court of Justice case-law, which have put in place strict rules for Member States wishing to introduce provisions of this kind.

2.6 As a general rule, therefore, the Member States must, subject to certain exceptions (de minimis aid, aid below a given threshold, aid for specific sectors), follow a procedure for notifying the Commission of the aid they intend to grant. The aid can only be applied following official approval from the Commission.

2.7 The Commission alone is empowered to judge whether State aid is compatible with the Treaty (although appeals may be lodged with the European Court of Justice), and consequently holds substantial powers to investigate, decide and impose penalties.

2.8 Non-economic services of general interest are not affected by legislation on State aids.

2.9 The question that arises for the public authorities regarding SGEI is to know if compensation for a public service obligation constitutes State aid that is compatible with the Treaty under the competition and internal market rules.

2.10 According to a judgment of the European Court of Justice (Case C-280/00 Altmark Trans GmbH), there is no State aid for a SGEI when the following conditions are met: 1. the public service obligations have been clearly defined; 2. the parameters used to calculate the compensation have been established beforehand; 3. compensation for the public service merely covers costs and a reasonable profit; 4. either the undertaking is chosen by a public procurement procedure allowing for the selection of the tenderer capable of providing those services at the least cost to the community, or the compensation is determined on the basis of an analysis of the costs of an average ‘well-run’ and adequately provided undertaking in the sector concerned.

2.11 Following the Altmark judgment, the Commission realised that few instances of compensation met these four conditions, and that in consequence all other compensation fell within the scope of ‘State aids’. It subsequently adopted the Monti-Kroes package, which specifies: 1. with a decision, what constitutes State aid, but for which notification is not however required (Decision 2005/842/EC on the application of Article 86(2) of the EC Treaty to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest); 2. and with a framework, the methods for assessing notified cases (Community framework 2005/C/297/4 for State aid in the form of public service compensation); 3. a new approach to the fourth Altmark criterion, under which the compensation is calculated on the basis of the additional costs generated by the particular tasks and not by comparison with an average well-run and adequately provided undertaking.

2.12 This framework, which sets out to establish the rules and principles determining the conditions under which compensation for public service is compatible with the ‘common market’, on the basis of TFEU Article 106(2), will expire in November 2011.

2.13 Since, moreover, both the framework and the decision provide for an evaluation of the rules laid down by them, the Commission has commenced a review of the Monti-Kroes package. More specifically, in 2008/2009 it called on the Member States to submit a report on the application of the current package, and in 2010 it launched a public consultation on the question.

2.14 On the basis of these two actions, the Commission has drawn up some general guidelines set out in the present communication. The aim is to open a preliminary discussion with the European institutions and other stakeholders by this coming July, prior to drawing up new draft texts.

3. Content of the communication

3.1 With a view to the objective of drawing up clearer, simpler and more proportionate instruments, the communication sets out to: — clarify — the distinction between economic and non-economic activities, — the limits imposed on Member States under State aid rules when defining an economic activity as an SGEI, — their provision at the least cost , — their interplay with sector-specific SGEI rules; — adopt a more diversified and proportionate approach to the different types of public services; — simplify the application of the rules for certain types of small-scale public services of a local nature with a limited impact on trade between Member States, and for certain types of social services; — give greater weight to considerations of efficiency and competition regarding large-scale commercial services with a clear EU-wide dimension.

4. General comments

4.1 The EESC backs the Member States and other direct stakeholders who have, either in the report on the application of the existing Monti-Kroes package, or during the public consultation on the question, called for the rules governing State aid applicable to SGEI to be reviewed, in order to remove legal uncertainties and strike a more harmonious balance between economic, social and environmental interests.

4.2 The EESC fully supports a more diversified and proportionate approach to the different types of public service, that also seeks to clarify the financing rules. Similarly, it welcomes the exemption from notification for small-scale public services and certain social services which, however, are still to be defined. It is particularly important that existing exemptions in certain areas (i.e. employment of vulnerable groups such as people with disabilities) are maintained.

4.3 The EESC wonders, in this regard, why the Commission has limited the notification exemption for small-scale services to those of a local nature: the condition of not affecting trade between Member States should be enough at local, regional and even national level.

4.4 According to the communication, the review of the package fits into the Commission's wider objectives in the field of public services, and in particular of its Communication Towards a Single Market Act, as well as the EU 2020 strategy.

4.5 In this context, the EESC recalls that, in its opinion on the Single Market Act (INT/548 of 15.3.2011), it maintained that ‘the aim of the Communication and other measures on public services should be to support Member States develop and improve their public services in line with the SGI protocol’.

4.6 The EESC therefore urges the Commission to clarify, for each of the methods for financing compensation for public service obligations, whether they come under the Altmark criteria and in consequence do not come under ‘State aid’. Currently there is a residual lack of awareness about the notification procedures and the various exemptions. This results in a reduced market, as organisations reliant on compensation to provide an effective service are unable to compete, directly impacting the lives of EU citizens who are deprived of quality and accessible services.

4.7 In the EESC's view, the fact that a distinction between economic and non-economic services is mentioned in the SGI protocol – without however resolving the problem of how to distinguish between them – points clearly to the need to clarify the concepts and arrangements in question, including the role of non-profit organisations and the concept of a ‘reasonable profit’, so as no longer to have to depend on an exclusive case-by-case approach, whether legislative or judicial. Due to dual social and competition policy objectives there is a need for a clearer concept of ‘reasonable profit’. Therefore it would be more helpful if the European level could provide regulatory guidance and interpretation on relevant considerations.

4.8 The Commission's intention to clarify the distinction between SGEIs and non-economic services of general interest is therefore to be welcomed. As the EESC pointed out earlier in its opinion on The future of services of general interest (CESE 976/2006), the distinction between economic and non-economic services remains vague and uncertain.

4.9 The EESC remains convinced that in view, firstly, of the difficulty of defining the concept of economic/non-economic services of general interest exhaustively and, secondly, of the risk involved in a restrictive approach, the focus should be placed not on their economic or non-economic nature, but rather on the particular tasks of the services concerned and on the requirements (public service obligations) imposed upon them by a public authority in order to fulfil their mission and which must be clearly established.

4.10 With the SGI protocol, the Lisbon Treaty introduced a guide to the rules governing SGI, both economic and non-economic, but in Article 14 it also introduced a new legal basis for services of general economic interest, handing the Council and the European Parliament the responsibility for establishing the principles and conditions, particularly economic and financial conditions, which enable them to fulfil their missions, by means of regulations in accordance with the ordinary legislative procedure.

4.11 The EESC therefore considers that, in this context, the rules on compensation for public service obligations in connection with state aid could be more democratic for the tens of thousands of public authorities who will have to implement them if they were subject to the application of the ordinary legislative procedure under Article 14, providing this complies with the Treaty.

4.12 The EESC endorses the Commission's intention to urge the Member States to give greater weight to considerations of efficiency. The Commission should not focus on economic criteria alone, but should take account of the social, territorial and environmental aspects, regarding the particular tasks of each SGEI that have been defined by the public authorities. The Commission should not restrict ‘efficiency’ criteria to short-term considerations but also consider the quality, results and sustainability of services, especially when providing social and health care services. In addition, the specificities of social economy enterprises (cooperatives, mutualities, associations and foundations) should also be taken into account.

4.13 A large proportion of services of general interest such as social or health services are therefore characterised by an asymmetric relation between providers and recipients, unlike a commercial relation of the supplier-consumer type. Services of general interest often provide individually-determined solutions reflecting the specific features of the situation and users' needs; they can only operate in accordance with the principle of solidarity and are highly dependent on public funding. The EESC would like to call on the Commission to launch a consultation to review which public services in the area of SSGI may qualify for block exemption since they do not significantly affect competition or offer cross-border opportunities.

4.14 With the efficiency criterion, the evaluation criteria of the decision and the framework would effectively be brought into line with the fourth criterion of the Altmark judgment. Moreover, this could be applied to all compensation, including compensation paid for small-scale public services provided at local level and with a limited impact on trade between Member States, and for certain social services of general interest, that the Commission nevertheless wishes to exempt from notification and consider as compatible with the internal market. This means in effect that these services remain subject to ex post control, or to further legal uncertainty.

4.15 Similar uncertainty also affects the Commission's self-attributed competence to evaluate efficiency, whereas the court, in the M6/TF1 case (T-568/08 and T-573/08), does not allow it this competence.

4.16 With regard to the Commission's intention to clarify the limits imposed on Member States when defining an activity as an SGEI, the EESC has been calling for years for clarification of the implementing conditions of Article 106(2): this is subject to divergent interpretations insofar as, on the one hand, it is presented as a derogation or exception from the general Treaty rules (see the communication of 20 November 2007), while on the other, the 2004 white paper considers that ‘the effective performance of a general interest task prevails, in case of tension, over the application of Treaty rules’.