European Parliament resolution on the Commission White Paper on services of general interest (2006/2101(INI))
Date: 2006-09-27
Institutions: Committee on Economic and Monetary Affairs, European Parliament
Subjects: citizens' Europe, competitiveness, economic and social cohesion, liability, public authorities, public service, services of general interest, social security, social services

15.12.2006

EN

Official Journal of the European Union

C 306 E/277

Wednesday 27 September 2006

P6_TA(2006)0380

Services of general interest

European Parliament resolution on the Commission White Paper on services of general interest
(2006/2101(INI))

The European Parliament,

— having regard to the Commission communication entitled ‘White Paper on services of general interest’

(COM(2004)0374),

— having regard to the Commission communication entitled ‘Implementing the Community Lisbon pro-

gramme: Social services of general interest in the European Union’ (COM(2006)0177),

— having regard to Commission Decision 2005/842/EC of 28 November 2005 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 (1),

— having regard to Article 36 of the Charter of Fundamental Rights of the European Union, which con-

cerns access to services of general economic interest,

— having regard to Articles 2, 5, 16, 73, 86, 87, 88 and 295 of the EC Treaty,

— having regard to its resolutions on services of general interest, in particular its resolution of 13 Novem-
ber 2001 on the Commission communication ‘Services of General Interest in Europe’ (2), its resolution
of 14 January 2004 on the Commission Green Paper on services of general interest (3) and its resolution
of 22 February 2005 on State aid in the form of public service compensation (4),

— having regard to its position of 16 February 2006 on the proposal for a directive of the European

Parliament and of the Council on services in the internal market (5),

— having regard to the Conclusions of the Presidency of the Lisbon European Council of 15 and 16 March
2000, the Nice European Council of 7, 8 and 9 December 2000, the Laeken European Council of
14 and 15 December 2001 and the Barcelona European Council of 15 and 16 March 2002 on services
of general interest,

— having regard to the case law of the Court of Justice of the European Communities in the field of
services of general interest, in particular its judgments of 19 May 1993 in Case 320/91, Corbeau (6), of
27 April 1994 in Case C-393/92, Almelo (7), of 18 November 1999 in Case C-107/98 Teckal (8), of 3 July
2003 in Joined Cases C-83/01 P, C-93/01 P and C-94/01 P, Chronopost (9), of 24 July 2003 in Case C-
280/00, Altmark (10), of 27 November 2003 in Joined Cases C-34/01 to C-38/01, Enirisorse (11), and of
11 January 2005 in Case C-26/03, Stadt Halle (12),

— having regard to Rule 45 of its Rules of Procedure,

— having regard to the report of the Committee on Economic and Monetary Affairs and the opinions of
the Committee on Internal Market and Consumer Protection, the Committee on Culture and Education,
the Committee on Legal Affairs, the Committee on Employment and Social Affairs, the Committee on
Transport and Tourism, the Committee on International Trade, the Committee on Industry, Research
and Energy, and Committee on Regional Development (A6-0275/2006),

(1) OJ L 312, 29.11.2005, p. 67.
(2) OJ C 140 E, 13.6.2002, p. 153.
(3) OJ C 92 E, 16.4.2004, p. 294.
(4) OJ C 304 E, 1.12.2005, p. 117.
(5) Texts Adopted, P6_TA(2006)0061.
(6)
(7)
(8)
(9)
(10)
(11)
(12)

[1993] ECR I-2533.
[1994] ECR I-1477.
[1999] ECR I-8121.
[2003] ECR I-6993.
[2003] ECR I-7747.
[2003] ECR I-14243.
[2005] ECR I-1.

C 306 E/278

Official Journal of the European Union

EN

15.12.2006

Wednesday 27 September 2006

A. whereas the Treaties provide for an open social market economy and whereas the following principles,

inter alia, constitute terms of reference and are important in this context:

— solidarity, bringing people together on the basis of the objectives of social, economic and territorial

cohesion and sustainable development,

— cooperation, enabling the realisation of transnational and European aspirations in the Treaties and

programmes,

— open borders and an internal market with the freedom of movement for persons, goods, services
and capital, in order to integrate economies and societies and increase the wealth and social well-
being of European citizens,

— competition, enabling the completion of the internal market on the basis of social market economy
rules and governed by competition law, which is an essential area of democratic law and, above all,
to avoid the abuse of monopolies and economic power and to guarantee innovation, high quality
at an affordable price, diversification of consumer choices and legal protection for consumers,

— subsidiarity, based on Article 5 of the EC Treaty, ensuring the plurality of the Member States and
the different traditions in the EU and that the EU acts as efficiently and closely as possible to the
citizens, when, but only when, this will achieve a better result than actions on the national or sub-
national level,

— proportionality, according to which any action by the Community shall not go beyond what is

necessary to achieve the objectives of the Treaty, and

— democracy, according to which universal suffrage is the source of legitimacy for the national and
regional public authorities which determine and organise the aims, service provision and funding
of services of general interest (SGIs).

B. whereas, SGIs are not only an important element of social and economic cohesion, but also contribute

considerably to the competitiveness of the European economy,

C. whereas competition, which is intended to facilitate the completion of the single market based on social
market economy rules and which is regulated by antitrust rules, is a substantive democratic right, which
limits not only state power but also, and above all, abuses of dominant market positions and protects
consumer rights,

D. whereas the case law of the Court of Justice of the European Communities is now extensive, is con-
tinually developing and concerns various aspects of SGIs, including State aids, equal treatment and/or
the distortion of competition,

E.

having regard to the development in the cases brought before the Court of Justice relating to the
compatibility of SGIs with the internal market rules and European competition rules, and having regard
to the need to respond to this by clarifying positive European law in this area,

F. whereas because the evolution of markets and the way in which societies organise themselves is subject
to dynamic development, which is different in each Member State, the application of rigid rules and
definitions would constitute an obstacle to achieving optimal economic and social results,

G. whereas it is impossible to define SGIs uniformly, in a social and economic environment as diverse as

that of the EU,

H. whereas the availability of efficient SGIs is an integral part of the economic, societal and social systems
of all Member States; whereas this availability varies considerably from Member State to Member State
and whereas the objective of successfully completing the internal market should enable Member States
to introduce effective and efficient SGIs that fully respect the interest of the citizen in his dual role of
consumer of services and taxpayer as well as the Member States' responsibilities, without unduly inter-
fering in the freedom of local and regional authorities to establish and ensure the high quality, fre-
quency, affordability and accessibility of those services,

15.12.2006

EN

Official Journal of the European Union

C 306 E/279

I. whereas SGIs and services of general economic interest (SGEIs) should be provided uniformly through-
out the EU; whereas economic and social cohesion has as its objective the reduction of disparities
between the levels of development of the various regions and the promotion of the overall harmonious
development of the EU, especially in the new Member States,

Wednesday 27 September 2006

J. whereas, taking into account the principle of subsidiarity pursuant to Article 5(2) of the EC Treaty, it is
for the Member States and their regional and/or local authorities to define their SGIs and to decide
which services should be covered and how they should be organised, financed, delivered, evaluated and
controlled, and this should be fully respected when drafting further legislation,

K. whereas, in the matter of compatibility between internal market and competition rules, and the smooth
operation of SGIs, legal certainty must be established in order to give the relevant national, regional and
local authorities the necessary room for manoeuvre, to take decisions, and to avoid conflicts and legal
proceedings, with due respect for the internal market and the Parliament's above-mentioned position on
services in the internal market as well as clear implementation of internal market and competition
rules,

L. whereas sectoral EC directives on SGEIs in network industries and other sectors in which market open-
ing has been achieved or begun have been successful in providing better services at lower prices and
provide a reliable framework,

M. whereas the multitude of sector-specific initiatives relating to the opening of the internal market in the
area of services and the Parliament's above-mentioned position on services in the internal market
enlarges the opportunities for competition and better operation also in the areas of SGEIs, which under-
lines the need for legal clarity regarding SGIs,

N. whereas SGEIs have a direct effect on the internal market for services, and a number of sectors which
provide SGEIs have been successfully modernised and integrated into their respective service markets;
whereas this integration was achieved in a controlled way and accompanied by measures to protect the
general interest, in particular the concept of universal services,

O. whereas Article 16 of the EC Treaty recognises the importance of SGEIs; whereas Articles 43 to 49 of
the EC Treaty provide a legal basis for the formulation of Community action with regard to the free
provision of services; whereas Articles 86 and 87 of the EC Treaty and the case law of the Court of
Justice provide a clear framework for dealing with State aid as well as the modalities and levels of
funding of SGEIs; whereas Article 95 of the EC Treaty is the appropriate legal basis for dealing with
issues related to public procurement procedures and related matters;

P. whereas, while Articles 16 and 86(2) of the EC Treaty refer to SGEIs, they are not defined in the EC
Treaty; whereas SGIs are not referred to in the EC Treaty but were introduced as a concept in a
Commission communication; and whereas, pursuant to the Parliament's above-mentioned position on
services in the internal market, SGEIs should be exempt from the scope of Article 16 of the proposed
services directive and SGIs should be wholly exempt from the directive,

Q. whereas different forms of administration and partnership between economic operators carrying out
SGIs and SGEIs are being encouraged, and whereas this should occur in compliance with the responsi-
bilities of the Member States regarding the provision and procurement of those services in the interests
of effectiveness and high quality,

R. whereas the Community objective of a high level of consumer protection together with strict compli-

ance with the principle of subsidiarity should be brought into sharper focus,

S. whereas the Charter of Fundamental Rights of the European Union recognises and respects access to

SGEIs with a view to promoting social and territorial cohesion in the Union,

C 306 E/280

Official Journal of the European Union

EN

15.12.2006

Wednesday 27 September 2006

Considers that its resolutions on SGIs of 13 November 2001, 14 January 2004 and 22 February 2005

1.
remain pertinent, particularly in view of

— the principle of subsidiarity,

— deregulation, and

— the achievement of the internal market and the need to provide services of high quality;

recalls it is not important who provides SGIs, but rather that high-quality standards and an equitable social
balance be maintained in their provision and that the criteria be based on reliability and continuity of
supply; recalls that the Parliament considers that SGEIs cover a very broad range of industries;

Notes that it is particularly important, so as to exploit fully the opportunities offered by the internal
2.
market, for the conditions and provisions regulating the modernisation of markets to guarantee fair, trans-
parent and efficient competition, while maintaining social cohesion and universal service accessibility, and
avoid abuses of dominant position and the formation of new monopolies, which hamper access to the
market by new participants;

3.
Stresses that SGIs should be of high quality, should encompass comprehensive coverage, should be
provided at optimum cost, should respect social balance and should be provided on the basis of lasting
security of supply; and emphasises that the majority of SGIs can be provided under conditions of fair
competition, according to the principle that private and public undertakings must receive equal treatment;

Requests that the Commission submit to Parliament a comprehensive analysis of the effects of liberal-

4.
isation to date, in particular on the situation of the consumers and employees concerned;

5.
Emphasises that most SGEIs are supplied in the internal market and are therefore, as a matter of
principle, subject to internal market, public procurement, competition and State aid rules and Commission
supervision as regards any abuses, without prejudice to the fact that the application of the rules must not
obstruct the performance, in law or in fact, of the particular tasks assigned to the SGEIs, as provided in
Article 86(2) of the EC Treaty; emphasises that, in accordance with Article 16 of the EC Treaty, which con-
cerns SGEIs, the Community and Member States are responsible, within their respective competence, for
ensuring that they operate on the basis of principles and conditions that enable them to fulfil their missions;

Considers that the legitimate requirements of the general interest must not be used as a pretext for the
6.
improper closure of services markets as regards international providers who undertake to respect the legit-
imate requirements and are capable of so doing;

Underlines that especially after the enlargement of the European Union, cohesion must be ensured in
7.
the field of SGEIs and that, in the framework of structural policy, Member States' infrastructures for net-
work-based SGEIs must be interlinked and cross-border cooperation enhanced in order to create a real
internal market and to facilitate standardisation;

Takes into consideration the economic weight of these services and their importance for the produc-
8.
tion of other goods and the provision of other services; underlines that the way in which SGEIs are orga-
nised can affect the internal market, for example by prohibiting establishment in the country in which the
service is provided;

9.
Considers that the objective of competition rules should be to improve the quality of service provision,
consumer choice and affordable prices and to realise other public-interest objectives, including sustainable
development;

10.
Calls on the Commission to clarify the distinction between SGIs and SGEIs by developing operational
criteria, taking into account Member States' national traditions, based on the nature of collective goods and
public funding or by solidarity mechanisms of SGIs; underlines that for many SGIs making the distinction
between economic and non-economic aspects is extremely difficult due to the dynamic character of these
services and their rapid development; welcomes, therefore, the fact that, in its White Paper on SGIs, the
Commission indicates that ‘the effective performance of a general interest task prevails, in case of tension,
over the application of Treaty rules’; recognises that broad areas of SGIs must not be withdrawn from the
scope of the rules of the internal market and competition through an attempt to define SGIs; notes that a
precise definition of SGIs and SGEIs would run counter to the freedom of Member States to define their
SGIs;

15.12.2006

EN

Official Journal of the European Union

C 306 E/281

Wednesday 27 September 2006

11.
Considers that Article 86(2) of the EC Treaty provides guarantees for the Member States to ensure
that SGEIs are provided in accordance with the universal service obligations established by Community law
or by the Member States; follows the interpretation of the Court of Justice that there is a parallel between
this evaluation and the examination of proportionality in the framework of Article 49 of the EC Treaty;

12.
Recalls the fact that the rules in force in this area are defined by the case law of the Court of Justice
and by the Commission's interpretation of individual cases, and that, thus, neither the necessary legal cer-
tainty nor adequate transparency has yet been achieved;

13.
Requests furthermore clarification from the Commission in particular on two major questions: con-
sequences of the jurisprudence of the Court of Justice based on a sectoral approach and application of
competition law to SGIs and SGEIs, especially with regard to the financing of these services;

14.
Notes that local and regional authorities have proved to be the appropriate level, close to the citizen,
for providing SGIs, and that they remain the appropriate level for guaranteeing the right of involvement,
consumer protection and public welfare in respect of such services; notes that the European level of govern-
ment must help ensure that the capacity of the local and regional level of government to provide such
services is not jeopardised;

15.

Is of the opinion, therefore, that, in the interests of:

— local, regional and national authorities, in order that, where necessary, they might provide and guaran-
tee appropriate services in the interests of all citizens with due respect for the internal market and
Parliament's above-mentioned position on services in the internal market,

— the companies that provide or offer these services, whether public, profit-making, or non-profit-mak-
ing, in order that they might be aware what conditions and obligations can be imposed on them by the
authorities under the internal market and the legislation in force, given the general interest missions
that are entrusted to them, and

— service users, in order that they can be certain that the services defined and developed by Member
States and their local authorities in accordance with local conditions can be provided subject to proper
conditions on competition, where possible, accessibility, quality, affordability, innovation, adaptability,
continuity, durability, equality of treatment, long-term planning, safety, universality, etc.,

the Commission should formulate legal clarifications, guidelines and principles on a number of problematic
topics, in particular including the application of internal market and competition rules in the field of SGIs
and SGEIs while ensuring democratic accountability for the application of rules to SGIs and SGEIs to the
Member States, regional, and local authorities; notes that there is a need to clarify how responsibilities are
shared between the EU and Member States and considers that the sectoral approach which takes into
account the specific situation in the relevant sectors should be an important element in this respect; under-
lines in this context, that after a due evaluation of the Treaty and the jurisprudence of the Court of Justice
SGIs, remain to be defined by the Member States; notes, moreover, that there is no legal basis for a proposal
seeking the non-application of the relevant EC Treaty provisions to particular services;

Emphasises the need for existing or future sector-specific regulations based on internal market rules
16.
and respect for the principle of subsidiarity and stresses that sector-specific rules should not be called into
question; recalls the success of these sector-specific regulations and recommends that the sectoral approach
be expanded into other sectors;

17.
Calls on the Commission to create more legal certainty in the area of social and health-care SGIs and
to formulate a proposal for a sector-specific directive of the Council and the Parliament in those fields in
which it is appropriate to do so;

18.
Urges the Council, therefore, to adopt a common position as soon as possible on the revision of
Regulation (EEC) No 1191/69 of 26 June 1969 on action by Member States concerning the obligations
inherent in the concept of a public service in transport by rail, road and inland waterway (1);

(1) OJ L 156, 28.6.1969, p. 1.

C 306 E/282

Official Journal of the European Union

EN

15.12.2006

Wednesday 27 September 2006

19.
Recommends that when a competent authority identifies the supply of a service as an SGEI, the
public service obligation should be assigned either by way of a fair and transparent tendering procedure,
based on equal conditions for all competitors, or by way of a suitable legal act which must satisfy the
transparency criteria;

20. Welcomes the proposed Community legal framework for State aid in the form of compensation for
public service obligations and the Commission's plan to revise its Directive 80/723/EEC of 25 June 1980 on
the transparency of financial relations between Member States and public undertakings as well as on finan-
cial transparency within certain undertakings (1);

21.
Recommends that when a competent authority intends to finance SGEIs other than through direct
funding from its general budget, the authority in question should choose a form of funding that is in
compliance with the provisions of the EC Treaty, in particular Article 86(2), especially when granting exclu-
sive and special rights or compensation for the supply of public services or when setting up a fund for the
supply of public services; notes that in all cases this will require a transparent tariff system as well as
appropriate and transparent financing;

Recommends that when a competent authority intends to grant compensation for the supply of
22.
public services in order to ensure the funding of an SGI, such compensation should not be considered to
constitute State aid in the meaning of Article 87 of the EC Treaty, provided that:

— the beneficiary is entrusted with a clearly defined public service mission;

— the parameters for calculating the compensation payments are established in advance in an objective

and transparent manner;

— the level of compensation does not exceed the costs incurred in the discharge of the public service

obligations, allowing a reasonable profit;

— the beneficiary is chosen in a public tender procedure or is compensated to an amount not exceeding
the costs of a well-run undertaking that is adequately equipped with the means to provide the public
service; and

— a transparent procedure has been followed;

stresses, however, that the amount of compensation may not exceed what is necessary for the operation of
the service and must not be used to finance activities outside the scope of the service in question, in the
form of cross-subsidies; points out that compensation must be available to all operators entrusted with
providing SGIs, irrespective of their legal status;

Points to the importance of applying clearly the provisions of

the above-mentioned Decision
23.
2005/842/EC; emphasises, however, that the payment of pure compensation for public service obligations
should not be deemed to be State aid, and that the law should be amended accordingly;

Emphasises that it is for the competent authority to decide whether to supply an SGI directly or to
24.
entrust supply to external profit or non-profit service providers, while exercising the same control as that
provided for directly supplied services; in the event that the competent authority decides to outsource the
provision of SGIs, a call for tenders must be issued; moreover the principle of local and regional self-
government should be respected, which gives the competent authority the right to choose, taking into
account the public interest, how best each service should be delivered;

25.
Is of the opinion that outsourcing the supply of SGIs normally imposes on the authority in question
the obligation to assign the service on the basis of a public service contract, following a public tender
procedure; notes that the principle of awarding a public service contract should allow the competent auth-
ority the opportunity to transfer a public service contract in emergencies; calls on the Commission, together
with the Member States and the Parliament, to clarify the relevant criteria in the procurement directives or
in the form of a regulation; in this context, affirms that local authorities should be able to assign service
tasks directly to inter-communal companies or similar forms of joint arrangements, or to companies that
they own or control, provided that such bodies carry out the essential part of their activities for the con-
trolling authority or authorities, and do not compete on external markets but constitute only a domestic
organisational practice and an arrangement must be found which does not categorically exclude private
participation from the outset;

(1) OJ L 195, 29.7.1980, p. 35. Directive as last amended by Directive 2005/81/EC (OJ L 312, 29.11.2005, p. 47).

15.12.2006

EN

Official Journal of the European Union

C 306 E/283

Wednesday 27 September 2006

26.
Calls in this connection, and in the interests of possible improvements in efficiency through the
involvement of new operators and ways of providing SGIs, for more legal certainty as a matter of urgency
as regards the different forms of inter-authority organisations (cooperation between local authorities, public-
private partnership, awarding concessions) and the clarification of European law on competition the award
of contracts and State aid and of the general criteria applicable throughout Europe; stresses that there should
be legal clarification concerning the outsourcing of public services, which is distinct from the award of
public contracts; calls on the Commission to spell out the rules for awarding such outsourced services and
to make a clear distinction between those rules and the rules governing public contracts;

27.
Is of the opinion that the competent authority should ensure that in the sectors in which it has laid
down rules for public universal service obligations or particular objectives, the types of regulation and
instruments appropriate to each sector should be applied on the basis of transparent rules;

Is also of the opinion that guidelines at national and local level are necessary in the following areas,

28.
in the interests of transparency and consumer protection:

— to define the procedures for access to existing networks where access is necessary for the provision of a

service;

— to define the price and/or tariff conditions for the supply of services;

— to secure competition and opportunities for new entrepreneurs where possible;

— to establish rules on out-of-court settlements between suppliers and users of services, regardless of the

possibility of legal action; and

— to consult and, as appropriate, make referrals to the competition authorities regarding any element that
might point to a breach of the national competition rules or of those laid down in the EC Treaty;

29.
Recommends, in the interests of high-quality and efficient SGIs, encouraging voluntary benchmarking
and quality measurement mechanisms at national and European level; also recommends the exchange of
experience and the promotion of best practices be supported and involve all stakeholders concerned; sug-
gests that such measures address the following aspects:

— the development of comprehensive evaluation methods, including economic, social and environmental

criteria;

— the protection and safety of service users;

— the appropriateness and proportionality of the standard in relation to the cost of the service;

— the widest possible dissemination and publication of the standard; and

— simple and effective monitoring of adherence to the standard, which could be laid down on the basis of

a charter or of a code of conduct;

Stresses the importance of strengthening Member States' supervisory capacities in order to ensure
30.
that public policy objectives, including affordability and quality standards, are effectively achieved; stresses
further that it is necessary for the relevant public authorities to have adequate instruments and expertise at
their disposal to be able to enforce competition and to ensure consumer protection;

31.
Calls on the Commission, on the basis of the present resolution as well as its above-mentioned
resolution of 14 January 2004 and its resolution of 9 March 2005 on the mid-review of the Lisbon Strat-
egy (1) to propose appropriate legal initiatives, as referred to in this resolution, and recalls that codecision
rights, where foreseen by the Treaty, should be fully exercised by all parties involved in the field of SGIs and
SGEIs;

Points out that international agreements concluded by the Community and the obligations attaching

32.
thereto must be compatible with internal Community policies and rules;

33.

Instructs its President to forward this resolution to the Council and the Commission.

(1) OJ C 320 E, 15.12.2005, p. 164.