Opinion of the Committee of the Regions on the Communication from the Commission — Implementing the Community Lisbon programme — Social services of general interest in the European Union
Date: 2006-12-06
Institutions: European Committee of the Regions
Subjects: EU programme, European social policy, services of general interest, social security, social services

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Opinion of the Committee of the Regions on the Communication from the Commission — Imple-
menting the Community Lisbon programme — Social services of general interest in the European
Union

THE COMMITTEE OF THE REGIONS,

(2007/C 57/08)

Having regard to the Communication from the Commission — Implementing the Community Lisbon
programme: Social services of general interest in the European Union (COM(2006) 177 final);

Having regard to the decision of the European Commission of 26 April 2006 to consult it on this subject,
under the first paragraph of Article 265 of the Treaty establishing the European Community;

Having regard to its Bureau's decision of 13 June 2006 to instruct the Commission for Economic and
Social Policy to draw up an opinion on this subject;

Having regard to Article 16 of the Treaty establishing the European Community, concerning services of
general economic interest, as well as Articles 2, 5, 73, 81, 86, 87, 88 and 295 of the EC Treaty;

Having regard to Article 36 of the European Charter of Fundamental Rights, concerning access to services
of general economic interest;

Having regard to Article III-122 of the Treaty establishing a Constitution for Europe, signed by the Heads
of State and Government in Rome on 29 October 2004;

Having regard to its opinion on the Green Paper on services of general interest (CdR 149/2003 fin) (1);

Having regard to its opinion on the Communication from the European Commission on Services of
General Interest in Europe (CdR 470/2000 fin) (2);

Having regard to its opinion on the Draft Commission decision on the application of Article 86 of the
Treaty to state aid in the form of public service compensation, the draft directive amending Commission
Directive 80/723/EEC on the transparency of financial relations between Member States and public under-
takings and the Community framework for state aid in the form of public service compensation (CdR 155/
2004 fin) (3);

Having regard to its opinion on the Proposal for a Directive of the European Parliament and of the
Council on services in the internal market (CdR 154/2004 fin) (4);

Having regard to its opinion on the European Commission's Green Paper on public-private partnerships
and Community law on public contracts and concessions (CdR 239/2004 fin) (5);

Having regard to its opinion on the European Commission's White Paper on services of general interest
(CdR 327/2004) (6);

Having regard to the draft opinion (CdR 181/2006 rev. 1), adopted on 20 October 2006 by its Commis-
sion for Economic and Social Policy (Rapporteur: Mr Jean Louis Destans, President of the General Council
of Eure (FR/PES);

Whereas:

1.

social services of general interest (SSGI), although developed differently in the Member States, are an
essential element of the European social model (7);

(1) OJ C 73, 23.3.2004.
(2) OJ C 19, 22.1.2002.
(3) OJ C 43, 18.2.2005.
(4) OJ C 43, 18.2.2005.
(5) OJ C 71, 22.3.2005.
(6) OJ C 164, 05.7.2005.
(7) Draft Report of the European Parliament on a European Social Model for the future, 13.7.2006, in particular points 23

and 24.

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2.

3.

4.

5.

6.

7.

8.

9.

a stable, transparent legal framework at EU level is therefore required to develop SSGI in strict accord-
ance with the principle of subsidiarity, and in particular the responsibilities of the local and regional
authorities in defining the missions, management and financing of these services;

in this context, local administrative freedom and the principle of the Member States' freedom to
define the missions and organisation of SSGI must be reaffirmed, especially since the local authorities
often have primary responsibility for managing these services in their capacity as solidarity players in
local life;

it is important to recall that SSGI are an integral part of the family of services of general interest
(SGI) and, as such, play an essential role in ensuring social and human solidarity and protection
throughout the European Union;

a link must be established with Article 16 of the Treaty, which stresses the role played by services of
in the EU, and, conse-
general economic interest (SGEI) ‘in promoting social and territorial cohesion’
quently, the citizens' right to access SSGI must be recognised and guaranteed as a fundamental right
to access SGEI under Article 36 of the European Charter of Fundamental Rights;

SSGI, like other SGEI, are also effective tools for implementing the Lisbon Strategy for growth and
competitiveness in the EU;

it would therefore be appropriate to establish clearer distinctions between the concepts of SGI and
SGEI in order to better identify the specific features of SSGI;

the purpose of this distinction is in particular to highlight the legal consequences of the two concepts
and to give local actors legal and financial certainty as to the application of Community law to SSGI
and to give them more scope. This should enable the Union to further strengthen the role of local
actors in supporting SSGI;

to this end, the Commission should work to support the existing law applicable to SSGI in order to
secure greater clarity in relation to these services and avoid any uncertainty with regard to EU law
applicable in this area;

10.

it is appropriate to look ahead in order to ensure the necessary consistency between the EU's position
when adopting legislation for SSGI and the position it will adopt during WTO negotiations on trade
in services (GATS) for social and health policy;

adopted the following opinion at its 67th plenary session, held on 6 and 7 December 2006 (meeting
of 6 December):

1. Views of the Committee of the Regions

The Committee of the Regions

the Social Agenda insofar as SSGI, like SGEI, are a source of
solidarity and competitiveness for the EU economy as well as a
potential source of community-based jobs, a component of the
European social model and national social protection and inclu-
sion schemes;

1.1 welcomes the Commission's initiative, following up on
to the White Paper on services of general interest, which had
announced a systematic approach that focuses on ‘the specific
characteristics of social and health services of general interest’ in order
to clarify ‘the framework in which they operate’;

approves the fact that this specific measure is included
1.2
in the framework for implementing the Lisbon Strategy and

1.3
supports the Communication's approach of recognising
social services as services of general interest. Indeed, these essen-
tial and vital services fulfil a specific social protection and soli-
darity mission and are provided directly by the local and
regional authorities or delegated to specific operators with
responsibility for them. They therefore depend on the Member
States' regulatory process regarding the social public policy
objectives entrusted to them. The requirement
their
missions be fulfilled properly, as set out in Articles 16 and 86
(2) of the EC Treaty, should apply to them a priori;

that

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emphasises,

in this context, that SSGI should not be
1.4
considered as residual services to the population but can, on the
contrary, be agents for universal access to quality social services
for all citizens;

1.5
recalls that SSGI are meant to guarantee the fulfilment
of social policy objectives which are the responsibility of
Member States such as social protection, meeting fundamental
social needs,
i.e. health care, housing, education, care of the
elderly and people with disabilities, training and jobs, not to
mention solidarity with the vulnerable and the dependent, who
rely on the social services;

1.6
recalls that SSGI play an active part in the effective
application of human rights and respect for human dignity, as
defined in the European Charter of Fundamental Rights, and
arising from the common constitutional
traditions of all
Member States and their international obligations under the
Revised Social Charter of
the Council of Europe and the
Universal Declaration of Human Rights;

1.7
considers that SSGI contribute to the implementation of
the Community's mission, as defined under Articles 2 and 3 of
the Treaty, and in particular to a high level of social protection,
raising the quality of
life, the attainment of a high level of
health protection, and strengthening economic and social cohe-
sion;

1.8
affirms, in this context, that it is in the interest of the
Community that SSGI are developed and modernised in a stable
economic and legal framework and regulated by the relevant
public authorities at local and regional levels;

1.9 welcomes the steps taken by the Commission to identify
the specific characteristics of SSGI and the measures required to
modernise them in the light of the stakes involved in meeting
existing and future social needs inherent to an ageing popula-
tion and the exigencies of social cohesion and inclusion in daily
life at local and regional levels;

1.10
shares the Commission's views regarding the specific
characteristics of these services, especially with regard to the fact
that they operate on the basis of the solidarity principle and are
personalised. These specificities must be taken into considera-
tion in the application of Community legislation for the internal
market and competition, bearing in mind that they have little
impact on intra-Community trade and that their development is
in the interest of the Community;

latter tend to fall under the general competition and internal
market rules, which may not be appropriate for the specific
missions delegated to them by the local and regional authorities.
This legal uncertainty became clear during the debate on
whether they should be covered by the proposal for a directive
on services in the internal market and led to their being
excluded from its sphere of application;

1.12
is particularly satisfied that specific reference is made
to the principle of subsidiarity, recognising the exclusive respon-
sibility of Member States and their local and regional authorities
financing
for identifying the scope, organisational principles,
methods and regulation of SSGI;

1.13
considers, moreover, that SSGI should in principle be
undertaken by the best suited provider. The core values of
universality, accessibility, quality and regional programming
cannot be met unaided by the market and require structured
public intervention, especially for the delivery and payment
schemes of the local and regional authorities closest to the citi-
zens;

jobs),

(housing, health,

1.14
considers that the existential nature of the needs to be
met
information
in numerous
between SSGI providers and beneficiaries and,
cases, their extreme vulnerability, requires and justifies a service
delivery framework that exempts these services from ‘normal’
supplier/customer relations;

the asymmetry of

rather

interest missions, but

1.15
considers that it is not a matter of bringing funda-
mental internal market freedoms into conflict with the applica-
tion of EU fundamental rights or even the obligation to fulfil
general
to reconcile them by
adopting a suitable Community Framework for the specific
features of these services and the specific missions of public and
private operators, always bearing in mind that these grassroots
social services generally have little impact on intra-Community
trade. This spirit of conciliation should apply to the internal
market as well as EU external policy, especially regarding the
social and health services aspects of the international negotia-
tions on trade in services (GATS);

1.16
assumes that the Member States and, within them, the
relevant public authorities are to retain full responsibility for
regulating these services; considers that the conditions for the
application of Community rules for the practical implementa-
tion of SSGI need to be clarified in the following areas:

1.11
is convinced of the need to overcome existing legal
uncertainty regarding the conditions for the application of Com-
munity law to arrangements for implementing SSGI. All to
often, in the absence of legal certainty in relation to SSGI, the

— the required conditions to authorise providers in the light of
the status of general services of interest and as conditions
for a priori compatibility of aid in the form of compensation;

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— special and exclusive rights granted in particular to not-for-

profit organisations and charities;

— the clear and transparent definition of authorisation schemes
for organising external service providers in order to correct
asymmetries of information between beneficiaries and provi-
ders;

approves of the Commission's reference to the general
1.22
need for modernisation and quality in the SSGI sector, a need
which is being met by the ongoing decentralisation of services
to regional and local levels; in particular with a view to quality,
it should be ensured that in future providers of social services
continue to be subject to the quality standards and legal condi-
tions of the Member State in which the service is provided;

— solidarity-based funding for these services, especially under
conditions for compatibility between the provisions of the
Treaties and funding schemes and public authority subsidies
for service providers in order to ensure reliable access to
social and health services for the community and develop
new services for emerging needs.

In this context, the Committee of the Regions would recall that
the fulfilment of SSGI missions should in no way be hindered
by the application of the rules of the Treaty;

1.23
toring of
interest and is willing to be fully involved in this process;

shares the Commission's concern to arrange moni-
the situation regarding social services of general

1.24 welcomes the link established by the Commission
between SSGI and the examination of national action plans for
inclusion, bearing in mind the local dimension of this
social
objective (8), but nevertheless asks the Commission to be more
specific about how the open method of coordination,
its
preferred option, will be applied to the follow-up of its Commu-
nication, particularly with regard to what it expects from the
various stakeholders in this process;

1.17
stresses that when implementing management princi-
ples and procedures for SSGI, the Member States and local and
regional authorities must respect the general principles of the
EC Treaty,
free
including the principles of equal
movement, free competition and transparency;

treatment,

1.18
observes, in this context, that respecting the principle
of subsidiarity should not prevent the EC from exercising the
responsibility it shares with the Member States to monitor the
proper functioning of SSGI in compliance with Article 16 of
the Treaty;

supports the Commission's commitment

to giving
1.25
consideration ‘to the need and legal possibility for a legislative
proposal’ for SSGI, whereby the Commission aligns itself with
the broader position adopted by the Committee of the Regions
regarding ‘a proposal
framework which should make
possible a definition of positive principles’ for all SGEI (9), whilst
affirming that these two initiatives must be complementary and
consistent.

for a legal

2. Recommendations of the Committee of the Regions

1.19
questions the decision not to include health services in
the Communication whilst noting the Commission's intention
to deal with them in a separate initiative; clear and distinct defi-
nitions of social and health services should be put forward;

The Committee of the Regions

1.20
regrets that the Commission restricts itself to drawing
up a list of ‘organisational characteristics’ for SSGI but does not
take this opportunity to define these concepts more precisely,
especially with regard to the underlying policy orientations for
defining these services in Member States;

1.21
believes that under no circumstance can this list of
organisational characteristics be considered exhaustive or restric-
tive,
in deference to the recognised freedom of the Member
States and their local authorities to define the organisation of
SSGI;

2.1
asks the Commission to clarify the nature of the legisla-
tive proposals on SSGI as soon as possible and to establish the
important monitoring and dialogue procedure and the biennial
reports;

2.2
urges the Commission to deliver on its commitment to
give consideration to the need and legal possibility for a legisla-
tive proposal on SSGI at the end of the open process of consul-
tation;

(8) CoR opinion No ECOS-027 of 22.4.2004 on the Joint report on social
inclusion summarising the results of the examination of the National
Action Plans for Social Inclusion, in particular points 2.5 and 2.6.

(9) CoR opinion No ECOS/040 of 23.2.2005 on the Commission's White

Paper on services of general interest, in particular point 1.18.

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also reiterates its recommendation to the Commis-
2.3
sion (10) to draw up a proposal for legislative regulation which
should make possible a definition of certain positive principles
for all SGEI, as an ‘umbrella’ initiative for other complementary
legislative proposals, and due to their specific features, for SSGI
in particular, with a view to providing greater legal certainty for
local and regional authorities and service providers;

2.4
asks the Commission to develop more specific and strin-
gent classifications (categories) and definitions (concepts) for the
relevant SSGI and to take account of the general interest require-
ments identified by Member States, and to recognise them as
distinct aspects of the definition of these services;

the Member States' freedom to define the principles, missions,
financing methods and organisation of SSGI;

2.6
suggests that the Commission involve the Committee of
the Regions in a permanent monitoring and evaluation process
for SSGI (particularly in order to monitor compliance with the
right of access to all services, the financial sustainability of
services and achieved performance objectives);

2.7
approves the Commission's undertaking to deliver the
first biennial report on SSGI by mid-2007 giving the results of
its study on the functioning of the sector, its socio-economic
importance, as well as the implications of the application of
Community law; and finally

therefore urges the Commission not

to draw up a
2.5
restrictive list of SSGI concepts, missions and organisational
characteristics, in deference to the principle of subsidiarity and

calls for consistency between the Communication's
2.8
orientations and the EU's external policy for international nego-
tiations on trade in services (GATS).

Brussels, 6 December 2006.

The President

of the Committee of the Regions

Michel DELEBARRE

(10) CoR opinion No ECOS/040 of 23.2.2005 on the Commission's White
Paper on services of general interest, and in particular point 1.18.