COMMISSION STAFF WORKING DOCUMENT EVALUATION Evaluation of the State subsidy rules for health and social services of general economic interest (“SGEIs”) and of the SGEI de minimis Regulation.
Date: 2023-02-22
Institutions: Directorate-General for Competition, European Commission
Subjects: State aid, application of EU law, control of State aid, health service, provision of services, services of general interest, social services

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 1.12.2022  SWD(2022) 388 final  COMMISSION STAFF WORKING DOCUMENT  EVALUATION  Evaluation of the State subsidy rules for health and social services of general economic interest (“SGEIs”) and of the SGEI de minimis Regulation.  {SWD(2022) 389 final}  
 
 
Table of contents 

1. 

INTRODUCTION ....................................................................................................... 4 

1.1.  The 2012 SGEI Package ...................................................................................... 4 

1.2.  Purpose of the evaluation ..................................................................................... 5 

1.3.  Scope of the evaluation ........................................................................................ 5 

1.3.1. 

Sectors covered ............................................................................................. 5 

1.3.2.  Timeframe and geographical scope .............................................................. 6 

1.4.  Data sources used for the evaluation ................................................................... 6 

2.  WHAT WAS THE EXPECTED OUTCOME OF THE INTERVENTION? ............. 7 

2.1.  Description of the intervention and its objectives ............................................... 7 

2.1.1.  Notion of State aid ........................................................................................ 7 

2.1.2. 

Procedural aspects ........................................................................................ 9 

2.1.3.  Notion of Services of General Economic Interest ...................................... 11 

2.1.4.  The 2011 review ......................................................................................... 14 

2.1.5.  Objectives of the 2012 SGEI Package........................................................ 14 

2.1.6.  Main changes between the 2005 SGEI Package and the 2012 SGEI Package

15 

The SGEI Communication .................................................................................... 15 

The SGEI Decision ................................................................................................ 16 

The SGEI Framework............................................................................................ 17 

The SGEI de minimis Regulation.......................................................................... 17 

2.1.7. 

Points of comparison .................................................................................. 18 

3.  HOW  HAS  THE  SITUATION  EVOLVED  OVER  THE  EVALUATION 

PERIOD? ................................................................................................................... 19 

3.1.  Health sector ...................................................................................................... 19 

3.1.1. 

Importance, organisation and development of the health sector ................ 19 

3.1.2.  Key figures and State aid expenditure related to the health sector............. 21 

3.1.3.  Case practice of the Commission and relevant case law ............................ 23 

3.2.  Social services.................................................................................................... 24 

3.2.1.  Key figures and State aid expenditure ........................................................ 24 

3.2.2.  Case practice of the Commission and relevant case law ............................ 26 

3.3.  Recent events: the COVID-19 pandemic and the Russian war of aggression 
against Ukraine ............................................................................................................. 27 

3.3.1.  COVID-19 pandemic.................................................................................. 27 

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3.3.2.  Russian war of aggression against Ukraine ................................................ 28 

4.  EVALUATION FINDINGS ..................................................................................... 28 

4.1.  To what extent was the intervention successful and why? ................................ 28 

4.1.1.  Effectiveness............................................................................................... 29 

SGEI Decision ....................................................................................................... 30 

SGEI Framework ................................................................................................... 34 

SGEI Communication ........................................................................................... 34 

SGEI de minimis Regulation ................................................................................. 39 

Conclusion ............................................................................................................. 41 

4.1.2.  Efficiency ................................................................................................... 41 

Findings of the analysis ......................................................................................... 41 

Conclusion ............................................................................................................. 43 

4.1.3.  Coherence ................................................................................................... 43 

Findings of the analysis ......................................................................................... 44 

Conclusion ............................................................................................................. 46 

4.2.  How did the EU intervention make a difference? .............................................. 46 

4.2.1. 

Findings of the evaluation .......................................................................... 47 

4.2.2.  Conclusion .................................................................................................. 49 

4.3. 

Is the EU intervention still relevant? ................................................................. 49 

4.3.1. 

Findings of the analysis .............................................................................. 49 

4.3.2.  Conclusion .................................................................................................. 52 

5.  WHAT ARE THE CONCLUSIONS AND LESSONS LEARNED? ....................... 52 

5.1.  Conclusions ........................................................................................................ 52 

5.2.  Lessons learned .................................................................................................. 53 

ANNEX I.   PROCEDURAL INFORMATION ............................................................... 54 

ANNEX II. METHODOLOGY AND ANALYTICAL MODELS USED ....................... 56 

ANNEX III. EVALUATION MATRIX ........................................................................... 61 

ANNEX IV. OVERVIEW OF BENEFITS AND COSTS ................................................ 63 

ANNEX V. STAKEHOLDERS CONSULTATION ........................................................ 67 

ANNEX  VI.  OVERVIEW  OF  THE  STATE  AID  RULES  SUBJECT  TO  THE 

SGEI EVALUATION ............................................................................................... 80 

ANNEX VII. RELEVANT LEGAL PROVISIONS IN THE TFEU ................................ 81 

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Glossary 

Term or acronym 

Meaning or definition 

COVID-19 

The COVID-19 outbreak / pandemic 

DG 

EU 

GBER 

GDP 

OECD 

RSB 

SGEI 

SWD 

TFEU 

Directorate-General 

European Union 

General Block Exemption Regulation: Commission Regulation 
(EU) No 651/2014 of 17 June 2014 declaring certain categories of 
aid compatible with the internal market in application of 
Articles 107 and 108 of the Treaty, OJ L 187, 26.6.2014, p. 1, as 
amended 

Gross Domestic Product 

Organisation for Economic Co-operation and Development 

Regulatory Scrutiny Board 

Services of General Economic Interest 

Staff Working Document 

Treaty on the Functioning of the European Union 

3 

 
 
 
1. 

INTRODUCTION 

This Staff Working Document (“SWD”) summarizes the results of the evaluation of the 
State subsidy rules for health and social services of general economic interest (“SGEI”) 
as well as the SGEI de minimis Regulation1, launched in June 2019.  

1.1.  The 2012 SGEI Package 

The 2012 SGEI Package, which entered into force in 2012, consists of: 

  The  SGEI  Communication2,  which  clarifies  basic  concepts  of  State  aid 
relevant  to  SGEIs  (e.g.  notions  of  aid,  SGEI,  economic  activity,  the 
relation between public procurement and State aid rules, etc.); 

  The  SGEI  Decision3,  which  provides  the  conditions  under  which  the 
Member States are exempted from the obligation to notify public service 
compensation to the Commission; 

  The  SGEI  Framework4,  which  sets  out  the  rules  for  assessing  SGEI 
compensations  that  constitute  State  aid  and  are  not  exempted  from 
notification by the SGEI Decision; and 

  The  SGEI  de  minimis  Regulation,  which  provides 

that  SGEI 
compensation not exceeding EUR 500 000 over any period of three fiscal 
years does not fall under State aid scrutiny. 

The  overall  objective  of  the  2012  SGEI  Package  was  to  support  Member  States  in 
funding SGEIs that are of key importance to  citizens and the society as a whole, while 
preserving the key aspects of State aid control. 

The 2012 SGEI Package, as regards health and social services, aimed at simplifying the 
compatibility  criteria  and  reducing  the  administrative  burden  for  Member  States  which 
compensate  undertakings  entrusted  to  provide  SGEI  to  the  (vulnerable  part  of  the) 
population  at  affordable  conditions.  In  this  context,  the  2012  SGEI  Decision 
acknowledged that health and social services have specific characteristics that need to be 
taken into consideration and it did not necessarily consider that a larger compensation for 
these services produced a greater risk of distortions of competition. Accordingly, under 
certain  conditions,  such  compensation  was  exempted  from  the  notification  obligation 
under Article 108(3) TFEU, irrespective of the amounts. 

1.2. 

Purpose of the evaluation 

The goal of the evaluation is to verify to which extent the rules applicable to health and 
social services reached these objectives and whether the rules are still appropriate, also in 

1   Commission  Regulation  (EU)  No 360/2012  of  25 April  2012  on  the  application  of  Articles  107  and  108  of  the 
Treaty on the Functioning of the European Union to de minimis aid granted to undertakings providing services of 
general economic interest (OJ L 114, 26.4.2012, p. 8). 

2   Communication from the Commission on the application of the European Union State aid rules to compensation 

granted for the provision of services of general economic interest (OJ C 8, 11.1.2012, p. 4). 

3   Commission Decision of 20 December 2011 on the application of Article 106(2) of the Treaty on the Functioning 
of  the  European  Union  to  State  aid  in  the  form  of  public  service  compensation  granted  to  certain  undertakings 
entrusted with the operation of services of general economic interest (notified under document C(2011) 9380) (OJ 
L 7, 11.1.2012, p. 3). 

4   Communication  from  the  Commission  –  European  Union  framework  for  State  aid  in  the  form  of  public  service 

compensation (2011) (OJ C 8, 11.1.2012, p. 15). 

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view  of  the  latest  jurisprudence  of  the  Union  Courts  and  sectoral  developments  in  the 
internal  and  global  markets.  It  seeks  to  analyse  the  relevance,  effectiveness,  efficiency, 
coherence  and  EU-added  value  of  SGEI  rules  applicable  to  health  and  social  services. 
The  evaluation  also  seeks  to  assess  how  the  SGEI  de  minimis  Regulation  has  been 
applied. 

Indeed,  the  current  rules  applicable  to  health  and  social  SGEIs  have  been  in  place  for 
more than 10 years but have not been evaluated so far. The objective of the evaluation is 
to get a detailed understanding of the potential issues that Member States may have had 
in  implementing  the  SGEI  rules  applicable  to  health  and  social  services  and  whether, 
why and to what extent the current rules have encouraged and/or deterred Member States 
from  designing  new  or  adapting  existing  SGEI  compensation  measures  for  health  and 
social services in line with the currently applicable SGEI rules. 

In addition, the evaluation should provide a better understanding of the application of the 
SGEI de minimis Regulation and possible difficulties encountered by stakeholders, also 
in the light of possible amendments of the SGEI de minimis Regulation after its current 
expiry date of 31 December 2023. 

The  evaluation  informs  the  Commission  on  the  need  or  not  to  revise  the  SGEI  rules 
applicable to health and social services and/or whether there is need to prolong or revise 
the SGEI de minimis Regulation. 

1.3. 

Scope of the evaluation 

1.3.1.  Sectors covered 

The evaluation concentrates on the health and social services sectors. For the purposes of 
the  present  evaluation,  the  health  and  social  services  sectors  are  to  be  understood  as 
hospitals  providing  medical  care  (including,  where  applicable,  emergency  services)  as 
well  as  services  meeting  social  needs  as  regards  health  and  long  term  care,  childcare, 
access to and reintegration into the labour market, social housing and the care and social 
inclusion of vulnerable groups5. 

Several reasons underpinned the need to concentrate the evaluation on these health and 
social  services  sectors.  First,  they  are  of  crucial  importance  for  citizens  and  form  an 
essential part of the welfare system of each Member State.  

Second,  it  results  from  the  SGEI  Reports6  that  the  SGEI  rules  applicable  to  health  and 
social services have been frequently used, but that Member States are facing conceptual 
and methodological challenges in their implementation (see section 4).  

Third, challenges in relation to health and social SGEI have recently increased in light of 
several  judgments  of  the  Union  Courts  and  the  overall  legal  uncertainty  around  the 
existence of State aid in certain cases.7  

5   See Article 2(1) of the SGEI  Decision. Other social services, such as for instance social security schemes, would 

6  

also be considered for the purposes of this evaluation where applicable. 
Pursuant  to  Article  9  of  the  SGEI  Decision and paragraph 62 of the SGEI Framework, Member States shall submit a report on 
their  compliance  with 
reports  are  available  online: 
the  SGEI 
https://ec.europa.eu/competition-policy/state-aid/legislation/sgei_en.  

two  years.  The 

rules  every 

7   For instance, as regards the criterion of economic activity, the Court of Justice clarified in which circumstances a 
scheme may be considered to be applying the principle of solidarity. See Judgment of the Court of 11 June 2020, 
Commission and Slovak Republic v Dôvera zdravotná poistʼovňa, a.s., Joined Cases C-262/18 P and C-271/18 P, 
EU:C:2020:450) where the Court of Justice noted that the existence of a certain amount of competition as regards 
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Finally, both sectors have evolved significantly over the years and it appeared necessary 
to consider the impact of those changes in the use and application of SGEI rules. 

Therefore,  the  evaluation  covers  the  SGEI  Communication  and  the  SGEI  Decision 
insofar  as  they  are  applicable  to  health  and  social  services.  It  also  covers  the  SGEI 
Framework, although to a lesser extent since it is rarely applied to the sectors concerned. 
In  addition,  the  evaluation  covers  the  SGEI  de  minimis  Regulation,  regardless  of  the 
sectors covered.  

1.3.2.  Timeframe and geographical scope 

The evaluation covers the period from the entry into force of the 2012 SGEI Package (i.e. 
31 January 2012) until the present, to the extent that the relevant information and data are 
available8.  The  consequences  of  the  COVID-19  pandemic  and  the  Russian  war  of 
aggression against Ukraine on the 2012 SGEI Package are not analysed in this SWD9, but 
they are taken into account where relevant (see also section 3.3). 

Geographically, the evaluation covers all Member States. 

1.4.  Data sources used for the evaluation 

The  evaluation  was  launched  in  June  2019  with  a  roadmap,  informing  citizens  and 
stakeholders  about  the  exercise,  and  involved  a  public  consultation,  a  targeted 
consultation, an expert study prepared by an external consultant (“the expert study”) and 
internal analyses by the Commission services. 

The  public  and  targeted  consultation  were  conducted  between  31  July  2019  and  4 
December  2019.  The  expert  study  was  carried  out  between  June  2020  and  May  2021. 
The expert study, covering 10 Member States, focused on healthcare (and in particular on 
hospitals) and social housing in the period 31 January 2012 to 31 December 2019. 

In  addition,  one  of  the  important  data  sources  used  in  the  evaluation  are  the  Member 
States’ biennial SGEI reports, monitoring results and interpretation questions by Member 
States. DG Competition’s case practice is also a major source of insight.  

Court judgments, desk research, literature review and internal statistics have in addition 
played  a  role  in  data  gathering.  DG  Competition  used  as  well  several  other  publicly 
available  reports  and  data  such  as  data  from  EUROSTAT  and  the  OECD.  Finally, 
bilateral meetings were held with stakeholders at their request. 

the quality and scope of services provided in the Slovak compulsory health insurance scheme, such as the ability of 
insurers  to  offer  insured  persons  additional  services  on  a  free  of  charge  basis  and  the  freedom  of  the  insured  to 
choose their insurer and to switch once a year, is not such as to call into question the social and solidarity-based 
nature  of  the  activity  carried  out  by  the  insurance  bodies  in  the  context  of  a  scheme  applying  the  principle  of 
solidarity  under  State  supervision.  See  also  Judgment  of  the  General  Court  of  2  June  2021,  Casa  Regina 
Apostolorum della Pia Società delle Figlie di San Paolo v Commission, T-223/18, EU:T:2021:315 (currently under 
appeal in case C-492/21 P - Casa Regina Apostolorum della Pia Società delle Figlie di San Paolo v Commission) 
where the General Court considered that the fact that, following certain reforms, also private healthcare providers 
operated within the public healthcare system and patients had - to some extent - a free choice between public and 
private providers, did not alter the principle of solidarity and the principle of universality. 

8   For  example,  due  to  the  fact  that  all  SGEI  reports  for  2020  and 2021  were  only  submitted  in  Q3  2022  and  that 
translation  and  analysis  of  those  reports  could  only  be  finished  in  Q4  2022,  most  data  available  for  this  staff 
working document only relate to SGEI compensation granted until 2019. 

9   As indicated in Annex II, section 2, the public and targeted consultations were conducted between 31 July 2019 
and 4 December 2019, i.e. before the COVID-19 crisis and the Russian war of aggression against Ukraine. As for 
the expert study, it was carried out between June 2020 and May 2021. However, the study was backward looking 
and focused on the period 31 January 2012 to 31 December 2019. Both the consultations and the external study did 
not relate to the COVID-19 crisis and the Russian war of aggression against Ukraine. 

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Annex 2 provides a detailed explanation of the process and the method of the evaluation. 

2.  WHAT WAS THE EXPECTED OUTCOME OF THE INTERVENTION? 

2.1.  Description of the intervention and its objectives 

2.1.1.  Notion of State aid 

Competition is a major driver of growth. It incentivises enterprises, including new ones, 
to  enter  markets  and  innovate,  improving  productivity  and  competitiveness  in  a  global 
context. 

State  aid  control  is  part  of  competition  policy  enshrined  in  the  Treaty  and  its  basic 
rationale is to avoid undue market distortions and subsidy races, as well as to safeguard 
the internal market and create a competitive landscape with a level playing field. 

Box 1 

Article 107(1) TFEU – Definition of State aid 

“…[a]ny  aid  granted  by  a  Member  state  or  through  State  resources  in  any  form 
whatsoever  which  distorts  or  threatens  to  distort  competition  by  favouring  certain 
undertakings or the production of certain goods shall, insofar as it affects trade between 
Member States, be incompatible within the internal market”. 

Consequently, the cumulative requirements that have to be met in order for a measure to 
be  considered  as  State  aid  and  to  fall  under  the  State  aid  general  prohibition  are  the 
following: (i) the aid must be granted by a Member State or through State resources; (ii) 
there must  be a selective advantage to  an undertaking;  (iii) there must be a  (threat  of) 
distortion  of  competition;  and  (iv)  there  must  be  affectation  of  trade  between  Member 
States.  

State aid is a form of support given by a Member State that provides an undertaking or 
specific  undertakings  with  an  advantage  over  its/their  competitors.  State  aid  can  be 
granted in a variety of ways, such as through the allocation of subsidies, the provision of 
interest  and  tax  relief,  state  guarantees,  the  purchasing  of  goods  and  services  on 
preferential terms, etc. 

In  its  Notice  on  the  notion  of  State  aid  from  201610,  the  Commission  provided 
clarifications  on  the  key  concepts  relating  to  the  notion  of  State  aid  as  referred  to  in 
Article 107(1) TFEU, with a view to contributing to an easier, more transparent and more 
consistent  application  of  this  notion  across  the  Union.  It  clarifies  the  Commission's 
understanding  of  Article  107(1)  TFEU,  as  interpreted  by  the  Court  of  Justice  and  the 
General  Court  (‘the  Union  Courts’).  In  addition,  the  Commission  clarified  the  key 
concepts underlying the application of the State aid rules to public service compensation 
in  its  SGEI  Communication,  which  clarifies  the  basic  concepts  of  State  aid  relevant  to 
SGEIs  (e.g.  notions  of  advantage,  notion  of  aid,  SGEI,  economic  activity,  the  relation 
between public procurement and State aid rules, etc.). 

While  Article 107(1)  TFEU  lays  down  a  general  prohibition  of  State  aid  granted  by 
Member  States  to  undertakings,  other  Treaty  provisions  allow  for  a  number  of 
exceptions: 

10   Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of 

the European Union  (OJ C 262, 19.7.2016, p. 1).  

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  Article  107(2)  TFEU  lists  a  number  of  categories  of  State  aids  that  are 
automatically  compatible  with  the  internal  market,  without  discretion  of  the 
Commission.  

  Article 107(3) TFEU allows State aids that can be considered compatible with the 

internal market, under the discretion of the Commission. 

  Article 106(2) TFEU allows State aid in the form of compensations for services 
of  general  economic  interest  that  can  be  deemed  compatible  with  the  internal 
market, under the discretion of the Commission. 

To ensure predictability and legal certainty for Member States and stakeholders on how 
the  Commission  applies  its  margin  of  discretion  in  interpreting  the  compatibility 
provisions in Article 107(3) and Article 106(2) TFEU, the Commission has adopted rules 
in the form of “soft law” such as guidelines and frameworks. The adopted rules aim at 
laying  down  the  compatibility  conditions  of  aid  measures  and  help  Member  States  to 
notify their mesures accordingly.  

As an example, the SGEI Framework lays down the conditions under which certain types 
of public service compensation are deemed compatible with the internal market pursuant 
to  Article  106(2)  TFEU,  while  being  subject  to  the  requirement  of  prior  notification 
under Article 108(3) TFEU. 

The  Commission  has  no  legal  obligation  to  adopt  guidelines  and  frameworks  –  their 
adoption is an instance of the exercise of the Commission’s discretion. They are not and 
must  not  necessarily  be  exhaustive  –  the  Commission  cannot  be  regarded  as  having 
deprived itself of the power to recognise State aid as compatible with the internal market 
directly on the basis of Articles 107(3) or 106(2) TFEU if it has not explicitly adopted a 
position on the question at issue in the relevant communication, guidelines or framework. 
Where  the  relevant  rules  do  not  expressly  prohibit  a  certain  type  of  State  aid  to  be 
granted, the Commission can assess the measure directly on the basis of Article 107(3) 
TFEU.  However,  the  Commission  will  make  sure  that  the  common  compatibility 
principles  are  applied  to  the  extent  possible  when  aid  is  directly  assessed  under  the 
TFEU.  

It results from the above that State aid control thus does not prevent Member States from 
supporting  businesses.  State  aid  control  ensures  that  any  detriment  arising  from 
distortions of competition is outweighed by the public purpose pursued by the aid.  

While  the  abovementioned  rules  set  out  how  the  Commission  will  assess  aid  measures 
and allow Member States to grant support, they do not oblige Member States to grant aid; 
this  remains  in  their  discretion.  Indeed,  Member  States  are  free  to  choose  other  policy 
instruments  to  reach  a  certain  goal.  Member  States,  on  the  basis  of  their  policy 
considerations, are (to a certain extent) also free to decide which undertakings or sectors 
they choose to support with State aid. 

The purpose of State aid control is not to ensure that Member States grant proportionally 
equal amount of aid, but rather to ensure that a level playing field is maintained when aid 
is granted.  

The role of State aid control is to define what types of State aid can be accepted, but it is 
up to the Member States, and taking into account their budget priorities, whether and to 
what extent they use those possibilities for granting State aid.  

8 

 
 
 
Furthermore,  Article  107  TFEU  confers  power  on  the  Commission  to  control  State  aid 
measures.  It  is  outside  the  remit  of  State  aid  control  to  assess  or  compare  the  overall 
spending  levels  of  individual  Member  States.  There  are  other  tools  of  economic 
governance 
the  broad 
looking 
developments of public finances.  

investment  or  reform  needs  and 

into  possible 

2.1.2.  Procedural aspects 

Member States can grant State aid either in the form of a “scheme” or as “individual aid”. 
An aid scheme is a measure which defines beneficiaries in a general and abstract manner; 
the authorities in charge of applying that scheme do not have any margin of discretion in 
its application.11 On the contrary, individual aid means (i) aid that is either not awarded 
on the basis of an aid scheme or (ii) notifiable individual awards on the basis of an aid 
scheme. 

The  Commission  has  exclusive  ex  ante  control  power:  under  Article  108(3)  TFEU, 
Member  States  are  obliged  to  notify  their  intentions  to  grant  State  aid  and  cannot 
implement the measure before the Commission's approval. The Commission’s approval 
takes  the  form  of  a  Commission  decision.  Such  decisions  can  be  challenged  and  are 
subject to scrutiny before the Union Courts. Any aid put into effect in contravention of 
Article 108(3) TFEU constitutes “unlawful aid”.12 

In  State  aid  procedures,  the  counterpart  of  the  Commission  is  the  Member  State.  The 
beneficiary  or  beneficiaries  are  third  parties.  Once  a  measure  is  approved  by  way  of  a 
Commission Decision (or block-exempted, see below), the Member State is authorised to 
grant  the  aid  to  the  beneficiary  or  beneficiaries.  This  may  be  done  according  to  its 
national  administrative  set-up  (at  national  or  regional  level  for  instance,  or  through 
specific aid granting bodies) and depending on the type of the aid measure.  

For small  amounts of aid  and/or less distortive aid  measures however, the Commission 
can  issue  block  exemption  regulations  or  decisions  of  exemption,  laying  down  the 
conditions13 that have to be fulfilled in order to deem the State aid measure compatible 
with the internal market without the necessity of an ex ante notification and approval. As 
an example, the Commission has adopted the the General Block Exemption Regulation14 
(“GBER”)  and  the  SGEI  Decision.  Member  States  thus  may  implement  under  certain 
conditions measures without prior Commission scrutiny. On the other hand, the fact that 
a  State  aid  measure  is  not  covered  by  block  exemption  regulations/decisions  of 
exemption does not imply that it is incompatible and cannot be granted; it merely means 
that the measure needs to be notified to the Commission, which will then assess it under 
the relevant compatibility rules (i.e. guidelines or frameworks or even directly under one 
of  the  Treaty  provisions)  before  it  is  actually  granted.  Figure  1  depicts  how  State  aid 
control works.  

11   See Article 1(d) of the Procedural Regulation. 
12   See  Article  1(f)  of  the  Procedural  Regulation.  Lawfulness  (or  “legality”)  of  an  aid  measure  is  thus  a  different 

concept than “compatibility”. 

13   The  criteria  of  the  GBER  determine,  in  particular,  eligible  beneficiaries,  maximum  aid  intensities  (i.e.  the 

maximum proportion of the eligible costs of a project that can benefit from State aid) and eligible expenses. 

14    Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the 

internal market in application of Articles 107 and 108 of the Treaty (OJ L 187, 26.6.2014, p. 1), as amended. 

9 

 
 
 
 
 
                                                           
Figure 1 – The State aid universe 

In addition, the Commission, in the so-called de minimis Regulations, provides ceilings 
below  which  measures  are  deemed  not  to  constitute  State  aid  within  the  meaning  of 
Article 107(1) TFEU, and are exempted from the notification procedure, because they are 
considered not to have any effect on trade between Member States and not to distort or 
threaten  to  distort  competition.  As  a  result,  there  is  no  compatibility  assessment  by  the 
Commission.  Among  the  different  de  minimis  Regulations  adopted15  is  the  SGEI  de 
minimis Regulation. This Regulation recognises the importance of the SGEI activities by 
setting a higher ceiling for providers of SGEIs than for providers of other services 16. 

15   See Commission Regulation (EU) No 1407/2013 of 18 December 2013 on the application of Articles 107 and 108 
of  the  Treaty  on  the  Functioning  of  the  European  Union  to  de  minimis  aid  (OJ  L  352,  24.12.2013,  p.  1), 
Commission Regulation (EU) No 1408/2013 of 18 December 2013 on the application of Articles 107 and 108 of 
the  Treaty  on  the  Functioning  of  the  European  Union  to  de  minimis  aid  in  the  agriculture  sector  (OJ  L  352, 
24.12.2013 p. 9), Commission Regulation (EU) No 717/2014 of 27 June 2014 on the application of Articles 107 
and 108 of the Treaty on the Functioning of the European Union to de minimis aid in the fishery and aquaculture 
sector  (OJ  L  190,  28.6.2014,  p.  45),  Commission  Regulation  (EU)  No 360/2012  of  25 April  2012  on  the 
application  of  Articles  107  and  108  of  the  Treaty  on  the  Functioning  of  the  European  Union  to  de  minimis  aid 
granted to undertakings providing services of general economic interest (OJ L 114, 26.4.2012, p. 8). 

16   The SGEI de minimis Regulation provides that SGEI compensation not exceeding EUR 500 000 over any period of 

three fiscal years does not fall under State aid scrutiny. 

10 

Article 107(1) TFEU: Definition of State aidDe minimisRegulations: Measures not captured by Article 107(1)No obligation to notifyObligation to NotifySoft law rules based on Article 107(3)eg: Regional Aid Guidelines, Research, Development and Innovation Framework, Important Projects of Common European Interest Communication, Risk Finance Guidelines, Aviation Guidelines, Energy and Environmental Aid Guidelines, Rescue and Restructuring Guidelines, Broadband Guidelines, STEC, Railway Guidelines.Soft law rules based on Article 106(2)SGEI FrameworkNo obligation to notify (exempted rules)Automatic compatibilitye.g: GBER based on 107(3)SGEI Decision based on 106(2)Article 108 TFEUProcedural RegulationImplementing RegulationCase law of the Union CourtsCase law of the Union CourtsNotice on the Notion of State aid+ SGEI Communication“Soft” lawSecondary lawPrimary law 
 
 
 
 
 
 
                                                           
2.1.3.  Notion of Services of General Economic Interest 

Services of general interest, Services of general economic interest, and Social services of 
general interest  

Article 14 TFEU, Article 106 TFEU, Protocol nº 26 on services of general interest and 
Article  36  of  the  Charter  of  Fundamental  Rights  refer  to  Services  of  general  interest 
(SGIs)  and  to  Services  of  general  economic  interest  (SGEIs).  However,  none  of  those 
texts define what SGIs or SGEIs are.  

The  Commission  has  clarified  these  concepts  in  its  Quality  Framework  for  Services  of 
General interest in Europe17. SGIs are defined in the Quality framework as “services that 
public  authorities  of  the  Member  States  classify  as  being  of  general  interest  and, 
therefore,  subject  to  specific  public  service  obligations  (PSO).  The  term  covers  both 
economic  activities  (see  the  definition  of  SGEI  below)  and  non-economic  services.  The 
latter  are  not  subject  to  specific  EU  legislation  and  are  not  covered  by  the  internal 
market and competition rules of the Treaty […]”. 

The Quality Framework defines SGEIs as “economic activities which deliver outcomes in 
the overall public good that would not be supplied (or would be supplied under different 
conditions in terms of quality, safety, affordability, equal treatment or universal access) 
by the market without public intervention”.  

The  Quality  Framework  defines  social  services  of  general  interest  (SSGIs)  as  services 
which  “include  social  security  schemes  covering  the  main  risks  of  life  and  a  range  of 
other  essential  services  provided  directly  to  the  person  that  play  a  preventive  and 
socially  cohesive/inclusive  role  […]”.  The  SSGI  definition  is  developed  in  the  SSGI 
Communication18. According to this Communication, SSGIs include in addition to health 
services:  

- 

statutory and complementary social security schemes, organised in various ways 
(mutual  or  occupational  organisations),  covering  the  main  risks  of  life,  such  as 
those linked to health, ageing, occupational accidents, unemployment, retirement 
and disability;  

-  other essential services provided directly to the person. These services that play a 
prevention and social cohesion role consist of customised assistance to facilitate 
social  inclusion  and  safeguard  fundamental  rights.  In  the  first  place,  they  offer 
assistance  to  persons  faced  by  personal  challenges  or  crises  (such  as  debt, 
unemployment,  drug  addiction  or  family  breakdown).  Secondly,  they  include 
activities  to  ensure  that  the  people  concerned  are  able  to  completely  reintegrate 
into  society  (rehabilitation,  language  training  for  immigrants)  and,  in  particular, 
return  to  the  labour  market  (occupational  training  and  reintegration).  These 
services  complement and support the role of families in  caring for the  youngest 
and  oldest  members  of  society  in  particular.  Thirdly,  these  services  include 
activities  to  integrate  into  the  society  people  with  long-term  health  or  disability 
problems. Fourthly, they also include social housing, which provides housing for 

17   Communication from the Commission to the European Parliament, the Council, the European Economic and Social 
Committee and the Committee of the Regions – A Quality Framework for Services of General interest in Europe, 
https://ec.europa.eu/archives/commission_2010-2014/president/news/speeches-statements/pdf/20111220_1_en.pdf.  
18   Implementing  the  Community  Lisbon  programme:  Social  services  of  general  interest  in  the  European  Union, 

COM(2006) 177 final, 26 April 2006. 

11 

 
 
 
                                                           
disadvantaged  citizens  or  socially  less  advantaged  groups.  Certain  services  can 
obviously include all four of these dimensions.  

As the Quality Framework and the SSGI Communication make clear, SSGIs may be of 
an  economic  or  non-economic  nature,  depending  on  the  activity  involved.  Indeed,  the 
jurisprudence makes clear that the social nature of a service is not sufficient in itself to 
classify it as non-economic19. As a result, the fact that an activity is termed ‘social’ is not 
of  itself  enough  for  it  to  avoid  being  regarded  as  an  ‘economic  activity’  within  the 
meaning of the Court’s case law. SSGIs that are economic in nature are SGEIs. Figure 2 
shows the relationships between SGIs, SGEIs and SSGIs.  

Figure 2 – SGI, SGEI and SSGI 

As the State aid rules, and more generally, the internal market and competition rules of 
the Treaty, only apply to economic activities, the distinction between non-economic SGI 
and economic SGI (SGEI, including economic SSGI) is of key importance.  

To  clarify  the  distinction  between  economic  and  non-economic  activities,  the  Court  of 
Justice has consistently held that any activity consisting in offering goods and services on 
a  market  is  an  economic  activity20.  The  question  whether  a  market  exists  for  certain 
services  may  depend  on  the  way  those  services  are  organised  in  the  Member  State 
concerned21  and  may  thus  vary  from  one  Member  State  to  another.  Moreover,  due  to 
political  choice  or  economic  developments,  the  classification  of  a  given  activity  can 
change over time. What is not an economic activity today may become one in the future, 
and  vice  versa.  Since  the  distinction  between  economic  and  non-economic  activities 
depends  to  some  extent  on  political  choices  and  economic  developments  in  a  given 
Member State, it  is  not  possible to  draw up  an exhaustive list  of activities that a  priori 
would  never  be  economic.  Such  a  list  would  not  provide  genuine  legal  certainty  and 
would thus  be of little use. However, the Commission  clarified the distinction  between 
SGEI and non-economic SGI with respect to a number of important areas, in particular 
for (i) social security schemes; (ii) healthcare systems; and (iii) education22. 

19   Judgment of the Court of Justice of 12 September 2000, Pavlov and Others, Joined Cases C-180/98 to C-184/98, 
EU:C:2000:428,  paragraph  118;  Judgment  of  the  Court  of  Justice  of  22  January  2002  INAIL,  C-218/00,  
EU:C:2002:36,  paragraph  37;  and  Judgment  of  the  Court  of  Justice  of  22  May  2003,  Freskot,  C-355/00,  EU:C: 
2003:298. 

20   See Judgment of the Court of Justice of 16 June 1987, Commission v Italy, 118/85, EU:C:1987:283, paragraph 7; 
Judgment of the Court of Justice of 18 June 1998, Commission v Italy, C-35/96, EU:C:1998:303, paragraph 36; 
Judgment of the Court of Justice of 12 September 2000, Pavlov and Others, Joined Cases C-180/98 to C-184/98, 
EU:C:2000:428, paragraph 75. 

21   Judgment  of the Court of Justice of 17 February 1993, Poucet and Pistre, Joined Cases C-159/91 and C-160/91, 

EU:C:1993:63, paragraphs 16 to 20. 

22   Communication from the Commission on the application of the European Union State aid rules to compensation 

granted for the provision of services of general economic interest (OJ C 8, 11.1.2012, p. 4) 

12 

 
 
 
 
 
                                                           
Large discretion in defining SGEI 

The  Union  Courts  have  established  that  SGEIs  exhibit  special  characteristics  as 
compared  with  those  of  other  economic  activities23.  The  SGEI  concept  may  apply  to 
different  situations  and  terms,  depending  on  the  Member  State,  and  EU  law  does  not 
create  any  obligation  to  designate  formally  a  task  or  a  service  as  being  of  general 
economic interest, except when such obligation is laid down in Union legislation. 

Therefore,  in  the  absence  of  specific  EU  rules,  Member  States  have  a  wide  margin  of 
discretion  in  defining  a  given  service  as  SGEI  and  in  granting  compensation  to  the 
service  provider.  The  Commission’s  competence  in  this  respect  is  limited  to  checking 
whether  the  Member  State  has  made  a  manifest  error  when  defining  the  service  as  an 
SGEI24.  The  Commission  may  identify  a  manifest  error,  for  example,  in  the  following 
circumstances25: 

-  When  a  sector  is  harmonized  at  Union  level  and  Member  States’  discretion 
contradicts  the  rules  governing  such  harmonization26  (however,  where  EU 
harmonization  rules  refer  only  to  certain  specific  services,  Member  States  have 
considerable discretion in defining additional services as SGEIs); 

- 

If  the  public  service  obligation  is  already  provided  or  can  be  provided 
satisfactorily and under conditions, such as price, objective quality characteristics, 
continuity and access to the service, consistent with the public interest, as defined 
by the Member State, by undertakings operating under normal market conditions; 
and 

-  When  the  service  is  not  addressed  to  citizens  or  in  the  interest  of  society  as  a 

whole. 

If a service is considered as being an SGEI, it can benefit from a specific treatment under 
State  aid  rules.  The  2012  SGEI  Package  provides  for  this  specific  treatment  and  lays 
down the State aid rules applicable to SGEIs (see Chapter 1):27 

-  The SGEI  Communication  brings  clarity  by  explaining  key  principles  for  the 
application of State aid rules to SGEIs. The main purpose of this Communication 
is  to  determine  which  compensation  is  subject  to  State  aid  rules  and  which 
compensation  does  not  fall  under  State  aid  rules.  In  particular,  the  SGEI 
Communication  explains  that a compensation granted according to  the so-called 
Altmark28 criteria should not be considered as a State aid due to the absence of an 
advantage. 

23   See  point  45  of  the  SGEI  Communication  and  Cases  C-179/90  Merci  convenzionali  porto  di  Genova, 
EU:C:1991:464, paragraph 27; Case C-242/95 GT-Link  A/S, EU:C:1997:376, paragraph 53; and Case C-266/96, 
Corsica Ferries France SA, EU:C:1998:306, paragraph 45. 

24   See point 46 of the SGEI Communication and Judgement of the General Court of 12 February 2008,  BUPA and 
Others v Commission, T-289/03, EU:T:2008:29, paragraphs 166-169 and 172; Judgement of the General Court of 
15 June 2005, Fred Olsen, T-17/02 EU:T:2005:208, paragraph 216. 

25   See SGEI Communication. 
26   That  limitation  applies  in  sectors  which  have  been  harmonised  at  Union  level,  such  as  the  postal, 

telecommunications and energy sectors. 

27   For an overview of the legislative framework, see http://ec.europa.eu/competition/state_aid/legislation/sgei.html.  
28   SGEI Communication, paragraph 43. 

13 

 
 
 
                                                           
-  The SGEI de  minimis Regulation  provides  that  compensation  which  does  not 
exceed  EUR  500 000  over  any  period  of  three  fiscal  years  does  not  fall  under 
State aid scrutiny. 

-  The SGEI  Decision exempts  Member  States  from  the  obligation  to  notify  to  the 
Commission  public  service  compensation  if  the  compatibility  conditions  laid 
down  in  the  Decision  are  fulfilled.  In  particular,  the  exemption  applies  to 
compensations  not  exceeding  an  annual  amount  of  EUR  15  million  for  the 
provision  of  SGEIs  in  areas  other  than  transport  and  transport  infrastructure,  to 
compensation for hospitals, services meeting socials  needs and SGEI  as  regards 
air  or  maritime  links  to islands,  if  certain  conditions  are  met.  Compensations  in 
line  with  the  SGEI  Decision  are  considered  to  be  compatible  with  the  internal 
market under Article 106(2) TFEU. 

-  The SGEI  Framework sets  the  conditions  for  assessing  compensation  for  SGEIs 
that  does  not  fall  under  the  scope  of  the  SGEI  Decision.  Those  cases  must  be 
notified to the Commission and may be declared compatible with Article 106(2) 
TFEU if they meet the criteria of the SGEI Framework. 

2.1.4.  The 2011 review 

In 2005, a first SGEI Package was adopted. It consisted of a Decision29 (the “2005 SGEI 
Decision”) and a Framework30 (the “2005 SGEI Framework”).  

At  the  end  of  2011  and  the  beginning  2012,  following  extensive  consultation  of 
stakeholders,  the  Commission  adopted  the  2012  SGEI  Package.  There  were  several 
reasons  that  led  to  the  adoption  of  the  2012  SGEI  Package.  First,  the  2005  SGEI 
Framework  was  about  to  expire  and  in  addition,  the  consultation  of  stakeholders  had 
shown  that  the  application  of  the  2005  SGEI  Package  more  broadly  raised  certain 
difficulties. In particular, the following issues were identified: 

-  An incorrect / insufficient application of the rules; 

-  An administrative burden too heavy for small SGEIs and for social services; 

-  Distortions of competition in the market; 

-  An inefficient delivery of SGEIs. 

These issues are detailed in the 2011 impact assessment related to the reform of the EU 
rules applicable to State aid in the form of public service compensation.31  

2.1.5.  Objectives of the 2012 SGEI Package 

The overall objective of the 2012 SGEI Package was to address the issue identified in the 
evaluation of the 2005 Package and to support Member States in funding SGEIs that are 
of key importance to citizens and society as a whole while preserving the key aspects of 
State aid control. To that end, the 2012 SGEI Package aimed at: 

29   Commission Decision 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 (OJ L 312, 29.11.2005, p. 67). 

30   Community Framework for State aid in the form of public service compensation (OJ C 397, 29.11.2005). 
31   Impact assessment of the Commission related to the Reform of the EU rules applicable to State aid in the form of 
https://ec.europa.eu/smart-

public 
regulation/impact/ia_carried_out/docs/ia_2011/sec_2011_1581_en.pdf. 

20  December 

compensation, 

available 

service 

2011, 

at 

14 

 
 
 
                                                           
1)  clarifying  basic  concepts  relevant  for  the  application  of  the  State  aid  rules  to 

SGEIs; and 

2)  a more diversified and proportionate approach for a large variety of SGEIs, taking 
into account their nature and scope and the extent to which they posed a serious 
risk  of  competition  distortions  in  the  internal  market.  In  this  regard,  the  2012 
SGEI Package sought to simplify the rules for small SGEIs of a local nature and 
for  social  services;  enlarge  and  deepen  the  competition  scrutiny  for  large 
commercial SGEI; and give incentives to improve efficiency to large scale SGEIs. 

The graph below provides an overview of how the objectives of the 2012 SGEI Package 
were  linked  to  the  problems  and  the  drivers  identified  in  the  evaluation  of  the  2005 
Package. 

More specifically, as regards health and social services, the 2012 SGEI Package aimed at 
simplifying the compatibility criteria and reducing the administrative burden for Member 
States  which  compensate  undertakings  entrusted  with  the  provision  of  SGEIs  to  the 
(vulnerable part of the) population under affordable conditions.  

In  this  context,  the  2012  SGEI  Package  acknowledged  that  health  and  social  services 
have  specific  characteristics  that  need  to  be  taken  into  consideration.  As a  result,  these 
services  are  fully  exempted  from  notification,  as  they  are  not  considered  to  produce  a 
greater risk of distortions of competition. 

2.1.6.  Main changes between the 2005 SGEI Package and the 2012 SGEI 

Package 

The SGEI Communication 

As  a  novel  feature  of  the  2012  SGEI  Package,  the  SGEI  Communication  aimed  at 
clarifying basic concepts of State aid. On the basis of the rulings of the Union Courts and 
of  the  Commission’s  decisional  practice,  the  SGEI  Communication  explains  relevant 
State aid concepts, such as ‘undertaking’ and ‘economic activity’, ‘State resources’ and 
‘effect  on  trade’.  Moreover,  the  Commission  also  clarifies  key  concepts  of  SGEI  and 
provides guidance on the four Altmark criteria. 

15 

PROBLEMS OF THE 2005 PACKAGEOBJECTIVES OF THE 2011 PACKAGEPROBLEM DRIVERSIncorrect/ insuficiente applicationoftherulesAdministrativeburdentoo heavyfor smallSGEIsandfor social servicesDistortionsofcompetitiononthemarketInefficientdeliveryofServicesofGeneral EconomicInterstDifficultyin understandingtherulesInsufficientknowledgeoftherulesTherules weretoo uniform: too complexfor smallSGEIsandfor social servicesA largenumberofrelativelysizeablecompensationmeasuresdidnotundergoState aidscrutinyTherules weretoo uniform: checkingtheabsenceofovercompensationin certaincases wasnotsufficientto ensurefair competitionTherules didnotprovideincentives for efficiencyClarifykeyconceptsrelevantfor theapplicationofState aidrules to SGEIsSimplifytherules for smallSGEIsofa local naturefor social servicesEnlargethecompetitionscrutinyfor largecomercial SGEIsGiveincentives to improve efficiencyto largescaleSGEIsDeepenthecompetitionscrutinyfor largecomercial SGEIsDiversifiedandproportionateapproach 
 
 
 
The SGEI Decision 

The SGEI Decision sets out the conditions under which public service compensation for 
the provision  of certain  SGEIs  constitutes State aid,  which is  however  compatible with 
the internal market and needs not be notified to the Commission.  

This  is  the  component  of  the  2012  SGEI  Package  which  brought  the  most  significant 
simplification  for  the  providers  of  social  services.  Under  the  2005  SGEI  Decision,  the 
only services exempted from prior notification regardless of the level of financing were 
social  housing  and  hospitals.  The  2012  SGEI  Decision  extends  the  scope  of  this 
exemption  to  all  services  ‘meeting  social  needs  as  regards  health  and  long  term  care, 
childcare,  access  to  and  reintegration  into  the  labour  market,  social  housing  and  the 
care and social inclusion of vulnerable groups’ (see Article 2(1)(c)). For the remaining 
SGEIs,  the  notification  threshold  was  lowered  from  EUR  30  million  in  the  2005  SGEI 
Decision  to  EUR  15  million  of  annual  compensation  per  SGEI  in  the  2012  SGEI 
Decision. Moreover, the 2012 SGEI Decision eliminated the requirement of a threshold 
for the turnover of the service provider.32  

Another adjustment brought about by the 2012 SGEI Decision applied to the entrustment 
act. While in the 2005 SGEI Decision the entrustment act was not limited in time, since 
the  revision  in  2011,  the  entrustment  act  has  been  limited  to  a  maximum  of  10  years, 
unless  the  provision  of  the  SGEI  requires  significant  investments  which  need  to  be 
amortised over a longer period.  

As  regards  other  compatibility  criteria,  the  2012  SGEI  Decision  introduced  only  a  few 
changes  mainly  aimed  at  simplifying  the  application  of  the  rules  and  at  increasing 
transparency.  Indeed,  in  order  to  simplify  the  application  of  the  rules,  the  2012  SGEI 
Decision  allowed  for  an  overcompensation  test  over  a  longer  time  span.  The 
overcompensation  tests  must  be  carried  out  every  three  years  under  the  2012  SGEI 
Decision33  where they had to  be carried out  annually under the 2005 SGEI  Decision.  It 
also introduced a ‘safe harbour’ for reasonable profit, which also constitutes a limit to the 
reasonable profit when the provision of the SGEI is not connected with a substantial risk.  

As  regards  transparency,  the  2012  SGEI  Decision  introduced  an  obligation  to  make  a 
reference to it in the entrustment act and to publish the entrustment act and the amount of 
aid granted for compensation above EUR 15 million. 

32   The 2005 SGEI Decision set a public service compensation threshold of EUR 30 million per year. This threshold, 
applicable to social services other than social housing, was complemented by a threshold of EUR 100 million for 
the  service  provider’s  average  annual turnover  before  tax. Public financing  which  exceeded  EUR 30  million per 
year, or which was granted to a provider having a turnover higher than EUR 100 million, had to be notified to the 
Commission. Such a large amount was considered likely to affect trade and competition to such an extent that a 
specific analysis by the Commission services was deemed to be necessary. 

33   It  should  be noted  that  Article  6(1) of  the  2012  SGEI  Decision provides  that  the overcompensation  test  must  be 

carried out “at least every 3 years during the period of entrustment and at the end of that period”. 

16 

 
 
 
 
 
                                                           
The SGEI Framework 

The 2012 SGEI Framework introduced a proportionate approach by subjecting to closer 
scrutiny large aid cases with more significant cross-border effects.  

As a result, the 2012 SGEI Framework introduced a number of changes compared to the 
2005  SGEI  Framework.  The  2012  SGEI  Framework  introduced  inter  alia  the  need  to 
give  proper  consideration  to  the  public  service  needs  supported  by  way  of  a  public 
consultation  or  other  appropriate  instrument;  to  justify  the  duration  of  the  entrustment 
period  by  reference  to  objective  criteria  such  as  the  need  to  amortise  non-transferable 
fixed assets; to comply with Union public procurement rules and with the Transparency 
Directive34;  to  check  the  absence  of  discrimination,  and  to  introduce  an  obligation  to 
make  public  information  on  the  amounts  of  aid  granted  to  the  undertaking  on  a  yearly 
basis. 

In  addition,  the  method  of  calculating  the  amount  of  compensation  was  modified.  The 
principle  remained  the  same  as  with  the  2005  SGEI  Framework  but  the  2012  SGEI 
Framework introduced the need to provide incentives for the efficient provision of SGEI 
of  high  standard  in  devising  the  method  of  compensation,  unless  Member  States  can 
justify  that  it  is  not  feasible  or  appropriate  to  do  so.  In  addition,  the  objective  of 
preserving the efficiency incentives of the public service providers led the Commission 
to switch from an ex post approach where, on the basis of the annual accounts, the public 
authorities  checked  the  absence  of  overcompensation  every  year  (with  only  limited 
possibilities  to  carry  over  the  possible  overcompensation)  to  an  ex  ante  multi-annual 
approach based on expected profits rather than on realised profits. In the same vein, the 
2012 SGEI Framework contains a novel method for calculating the compensation. This 
method aimed at better calculating the economic costs of the SGEI by requiring the use 
of  the  net  avoided  cost  (“NAC”)  methodology  to  calculate  the  net  cost  necessary  or 
expected  to  be  necessary  to  discharge  the  SGEI  and  therefore  the  maximum 
compensation which can be  granted (the 2005 SGEI  Framework  was based on the cost 
allocation methodology). 

The SGEI de minimis Regulation 

The SGEI de minimis Regulation was a novelty introduced by the 2012 SGEI package. It 
sets out that compensation for a broad range of SGEIs which does not exceed EUR 500 
000 over any period of three fiscal years is deemed no aid. Before adopting a special de 
minimis Regulation concerning only SGEIs, the general de minimis Regulation of 200635 
(with a threshold of EUR 200 000 over any period of three  fiscal  years) also applied to 
SGEIs.  The  higher  threshold  of  the  SGEI  de  minimis  Regulation  is  justified  on  the 
consideration  that  an  SGEI  provider  incurs  costs  which  are  directly  associated  with  its 
public service obligation under the entrustment act. The aid element in the compensation 
is  therefore  presumably  lower  than  the  amount  actually  granted,  and  the  Commission 
assumes that a EUR 500 000 compensation does not affect trade in the internal market. 

34   The importance of this provision is limited, considering that the separation of accounts is any event required by the 

SGEI Framework for undertakings having activities falling both inside and outside the SGEI. 

35   Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the 

Treaty to de minimis aid (OJ L 379, 28.12.2006, p. 5) 

17 

 
 
 
                                                           
2.1.7.  Points of comparison 

An evaluation needs an appropriate point of comparison to be able to assess the change 
that  the  EU  action  has  brought  over  time.  In  general,  the  main  baseline  (or 
counterfactual) is a situation in the absence of EU intervention.36 

In the current situation, the EU intervention is  the adoption of the 2012 SGEI Package. 
The  present  evaluation  assesses  the  reform  of  the  SGEI  rules  introduced  by  the  2012 
SGEI Package  as regards health and social services. Therefore, the baseline scenario is 
one  in  which  the  2005  SGEI  Package  (2005  SGEI  Decision  and  the  2005  SGEI 
Framework) would have continued to apply.37 

The current evaluation does not assess the unlikely scenario that the rules in force prior to 
2012 SGEI Package would have expired (in particular the 2005 SGEI Framework). The 
consequence  of  the  absence  of  substantive  rules  would  be  the  direct  application  of  the 
TFEU,  i.e.  the  notification  of  each  and  every  measure  constituting  State  aid  in  the 
meaning  of  Article  107(1)  TFEU  and  its  compatibility  assessment  by  the  Commission 
directly under Article 106(2) TFEU without any substantive guidance by the relevant soft 
law. 

The current evaluation also does not assess the existence/absence of State aid control as 
such, as the general prohibition of State aid is enshrined in the Treaty since 1957. 

Regarding the evolution of the situation under the baseline scenario, it is likely that the 
problems  that  were  identified  before  2012  would  have  persisted,  or  even  aggravated. 
None  of  the  problems  identified  would  be  resolved  under  the  baseline  scenario  and 
comments of stakeholders would not be considered. 

Under  the  baseline  scenario,  a  number  of  State  aid  concepts  relevant  for  SGEIs  would 
continue to be unclear, potentially leading to an incorrect application of the rules and as a 
result, reduced legal certainty. In addition, distortions of competition, lack of efficiency 
and  certain  specificities  of  different  sectors  (e.g.  social  services  or  large  commercial 
services) would not  have been taken into account.  For example, small  and local  SGEIs 
would  not  benefit  from  simplified  compatibility  conditions.  Indeed,  under  the  baseline 
scenario,  only  hospitals  and  social  housing  would  be  covered  by  the  notification 
exemption of the SGEI Decision regardless of the compensation amount. Compensation 
for  other  social  services  would  be  covered  by  the  notification  exemption  of  the  SGEI 
Decision only if the compensation is  lower than EUR 30 million  and provided that the 
beneficiary had an annual turnover of less than EUR 100 million. In addition, only SGEI 
compensation amounts of up to EUR 200 000 over a three-year period per undertaking 
would be considered as de minimis, which in turns means that more cases would have to 
be  notified  to  the  Commission  for  prior  approval,  even  if  the  competition  distortions 
brought  about  by  the  SGEI  would  be  limited.  Also,  under  the  baseline  scenario,  the 
Commission would not have had the possibility to impose conditions or commitments on 
Member  States  to  remedy  serious  distortions  of  competition  when  assessing  large 
commercial services under the SGEI Framework. Similarly, under the baseline scenario, 
the rules (namely the SGEI Framework) did not provide incentives to improve efficiency, 
meaning  that  aid  could  be  declared  compatible  for  any  amount  of  the  net  costs, 

36   It has to be noted that the construction of a baseline scenario for State aid is very complex and may be specific to 

the facts of the case. See also Section 2.1.7. 

37   For  the  2005  SGEI  Decision,  it  would  have  remained  unchanged  and  continued  to  apply.  For  the  2005  SGEI 

Framework, it would have been prolonged beyond its expiry date, which was in November 2011. 

18 

 
 
 
                                                           
irrespective of whether these costs could be avoided by increasing efficiency in the way 
the services were provided. 

Moreover,  since  in  the  baseline  scenario  it  would  be  necessary  to  notify  to  the 
Commission for approval those cases not covered by the SGEI Decision or the SGEI de 
minimis Regulation, the administrative burden would also be higher and inappropriate, in 
particular  for  small,  local  and  social  SGEIs.  In  addition,  under  the  baseline  scenario, 
Member  States  (including  local  authorities)  would  have  continued  to  use  detailed 
monitoring  systems  which  –  in  particular  for  small,  local  SGEIs  –  would  have  been 
cumbersome and costly when compared to the value of the service rendered. Moreover, 
the  lack  of  clarity  of  certain  SGEI-related  concepts  would  have  led  Member  States  to 
have  recourse,  at  instances,  to  external  accounting  and  legal  advice,  thereby  increasing 
costs.  Finally,  certain  administrative  requirements  would  not  be  correctly  and  fully 
applied,  leading  to  an  incorrect  application  of  State  aid  rules  and  principles,  thereby 
putting at risk the continuation of the relevant SGEI. 

3.  HOW HAS THE SITUATION EVOLVED OVER THE EVALUATION PERIOD? 

Health and social services form an essential part of the welfare system of each Member 
State and are of crucial importance for citizens. They include medical care provided by 
healthcare providers, long-term care, childcare, access to and reintegration into the labour 
market,  social  housing  and  the  care  and  social  inclusion  of  vulnerable  groups.  The 
adoption  in  2017  of  the  European  Pillar  of  Social  Rights38  is  an  evidence  that  these 
services are necessary for the society. 

The importance of the health and social services sectors justified the need to concentrate 
on them the evaluation started in June 2019. 

3.1.  Health sector  

3.1.1.  Importance, organisation and development of the health sector 

Health is one of the main components of a good life. In addition to having value in itself, 
good  health  also  translates  into  a  better  chance  of  succeeding  in  education  and  in  the 
labour market  – ultimately contributing to  enhance opportunities  for people to  improve 
their standing in life.39  

The health sector plays  a central  role in  modern societies: it helps  people maintain and 
improve their health, and is therefore essential for social welfare. 

Substantial differences exist in the way Member States ensure access and organise their 
healthcare  systems.  The  organisation  of  healthcare  regimes  depends  on  the  specific 
context of the Member States, their approaches and orientation. In particular, the health 
sector  varies  from  one  Member  State  to  another  with  regard  to  the  exact  role  of 
healthcare  providers  or  the  financing  schemes.40  In  certain  Member  States,  insurers  are 
funding  healthcare  while  in  other  Member  States,  it  is  the  government  that  purchases 
care. As detailed in the expert study, Member States adopt the following types of models: 

38   Interinstitutional Proclamation on the European Pillar of Social Rights (OJ C 428, 13.12.2017, p. 10). 
39   OECD  (2019),  Health  for  Everyone?:  Social  Inequalities  in  Health  and  Health  Systems,  OECD  Health  Policy 

Studies, OECD Publishing, Paris, https://doi.org/10.1787/3c8385d0-en. 

40   One  of  the  major  differences  relates  to  the  purchaser  of  healthcare:  in  certain  Member  States,  the  purchasing  of 
healthcare is allocated to insurers, while in other Member states, it is the government or a health fund controlled by 
the government that purchases care, and in others the government owns the healthcare services. 

19 

 
 
 
                                                           
-  A so-called Beveridge model or “national health service” under which the health 
system is financed through public taxes, the State directly finances organisations 
providing healthcare and universal health coverage is provided;  

-  A  Bismarck  system  or  “social  insurance  system”  where  healthcare  is  financed 
through  compulsory  contributions  (insurance  contributions  and  contributions 
funding  the  healthcare  activities  provided  by  public  or  private  providers)  from 
employers  and  employees  and  the  State  provides  healthcare  coverage  to  people 
who are not contributing through their income.  

-  Or a mixed system, where private funding from voluntary insurance schemes also 

plays an important role. 

The margin of discretion of the EU is limited when it comes to health. Article 6 TFEU 
provides  that  the  competence  of  the  Union  is  limited  to  support,  coordinate,  and 
supplement the actions  of Member States in  the  protection and improvement of human 
health.  In  addition,  Article  168(7)  TFEU provides  a  “sector-specific  subsidiarity 
clause”.41 Moreover, the primary role of Member States in healthcare regulation has been 
confirmed  by  the Charter  of  Fundamental  Rights,  which  provides  the  right  of  everyone 
to access  medical  treatment  “under  the  conditions  established  by  national  laws  and 
practices.”  

However, despite organisational and financial differences, healthcare systems are built on 
common values, as recognised by the Council of Health Ministers in 200642: universality, 
access to good quality care, equity43 and solidarity.  

To  respect  these  principles  of  universality,  access  to  good  quality  care,  equity  and 
solidarity, the intervention of the State in the health sector plays a central role. 

As stressed by the study on the financing models for public services in the EU and their 
impact  on  competition44,  public  authorities  need  to  intervene  due  to  a  large  number  of 
market failures related to (asymmetric) information problems, externalities, public goods 
and  market  power.  Governments  therefore  respond  to  these  market  failures  in  different 
ways,  which  generally  take  four  main  forms:  (i)  regulation  (e.g.  determination  of  the 
form of the healthcare system and its organisation, enactment of healthcare policies, etc.); 
(ii) public financing; (iii) public production (public ownership); and (iv) income transfers 
to users of services. 

However,  the  national  funding  of  the  health  sector,  although  critical  for  social  welfare, 
can  also  have  important  competition  implications.  Certain  public/publicly  financed 
providers now compete with private operators. Indeed, if in the past Member States often 
relied on public operators to provide health services, changing needs, societal challenges, 
and financial  constraints have led to  structural  changes, resulting in  gradual  opening in 
some Member States for private operators to compete with the public providers.  

41   According to Article 168(7) TFEU: “Union action shall respect the responsibilities of the Member States for the 
definition  of  their  health  policy  and  for  the  organisation  and  delivery  of  health  services  and  medical  care.  The 
responsibilities of the Member States shall include the management of health services and medical care and the 
allocation of the resources assigned to them”. 

42   Council Conclusions on Common values and principles in European Union Health Systems (OJ C 146, 22.06.2006, 

p.1). 

43   Equity relates to equal access according to need, regardless of ethnicity, gender, age, social status or ability to pay.  
44   European  Commission,  Study  on  the  financing  models  for  public  services  in  the  EU  and  their  impact  on 

competition, 2016. 

20 

 
 
 
                                                           
In addition, the provision of medical services and the acquisition and subsequent use of 
complex  medical  devices  and  equipment  are  market  activities  that  can  have  important 
spill-over effects on upstream and downstream markets.  

State  aid  control  plays  a  significant  role  in  creating  a  level  playing  field  between  the 
healthcare providers. 

3.1.2.  Key figures and State aid expenditure related to the health sector 

The level of health spending in a country is dependent on a wide range of demographic, 
social  and  economic  factors,  as  well  as  the  financing  arrangements  and  organisational 
structure  of  the  health  system  itself45.  In  2019,  the  government  expenditure  in  the  EU 
amounted  to  EUR  983  billion  or  7 %  of  GDP46,  to  which  should  be  added  direct 
payments by the patients and private insurance companies.  

These figures are more or less stable since 2012.47 However, with the COVID-19 crisis 
that severely restricted economic activity, and that increased health spending, the ratio of 
health expenditure to GDP changed significantly. In 2020, government expenditure in the 
EU amounted to EUR 1 073 billion or 8.0 % of GDP48. This reflects both the extra health 
spending needed to combat COVID-19 and reductions in GDP caused by restrictions on 
economic activity.  

In  addition,  it  should  be  noted  that  according  to  the  Member  States’  biennial  SGEI 
reports49,  the  total  spending  on  SGEIs  under  Article  2(1)(b)  of  the  SGEI  Decision  (i.e. 
notably  hospitals  providing  medical  care  and  emergency  services)  is  only  a  fraction  of 
the spending on health presented above, but has likewise increased signficiantly over the 
years and even more than inflation (see figure 3 below). Relative to GDP however there 
is a small decrease in SGEI spending for hospitals providing medical care and emergency 
services  since  2012.  In  2012,  Member  States  granted  approximately  EUR  86  billion  in 
absolute terms, i.e. 0.0075 % of GDP, whereas in 2019, they spent approximately EUR 
95.3 billion in absolute terms, i.e. 0.0068 % of GDP. The evolution of SGEI spending for 
hospital SGEIs as percentage of GDP can be seen in figure 4.  

45   OECD/European  Union  (2020),  Health  at  a  Glance:  Europe  2020:  State  of  Health  in  the  EU  Cycle,  OECD 

Publishing, Paris, https://doi.org/10.1787/82129230-en.  
on 

government 

expenditure 

46   Eurostat, 

health: 

https://ec.europa.eu/eurostat/statistics-

explained/index.php?title=Government_expenditure_on_health.  

47   7.1 % of GDP from 2012 to 2015, 7.0% in 2016, and 6.9% in 2017 and 2018 (Eurostat, government expenditure on 
health: https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Government_expenditure_on_health). 

48   See https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Government_expenditure_on_health.  
49   Pursuant to Article 9 of the SGEI Decision and paragraph 62 of the SGEI Framework, Member States shall submit 
a  report  on  their  compliance  with  the  SGEI  rules  every  two  years.  The  reports  are  available  online: 
https://ec.europa.eu/competition-policy/state-aid/legislation/sgei_en. 

21 

 
 
 
                                                           
Figure 3 – Hospital spending in EUR million (Article 2(1)(b) SGEI Decision) 

100000

95000

90000

85000

80000

2012

2013

2014

2015

2016

2017

2018

2019

Spending Article 2(1)(b)

Inflation

Figure 4 – SGEI spending under Article 2(1)(b) SGEI Decision as % of GDP50 

4,000%

3,500%

3,000%

2,500%

2,000%

1,500%

1,000%

0,500%

0,000%

LU

FR

LT
LV
BE

EU

SK
NL

2012

2013

2014

2015

2016

2017

2018

2019

It  follows  from  the  above  that  the  health  sector  constitutes  a  significant  part  of  the 
expenditure of Member States and therefore makes a significant contribution to the EU’s 
economy.  The  financing  of  the  EU’s  healthcare  is  predominately  provided  by  public 
funds.  Indeed,  the  vast  majority  of  funding  for  healthcare  comes  from  general 
government  revenues  (such  as  taxation  and  levies)  together  with  mandatory  social 
security contributions, which are then channelled to the health sector via the applicable 
procedures in the relevant Member State. Besides health as such, governments might also 
contribute  with  public  funds  to  (social)  health  insurance,  for  example,  by  covering  the 
contributions  of  particular  population  groups  or  providing  general  budget  support  to 
insurance funds.51 Some Member States also have so-called risk equalisation schemes in 
place,  whereby  the  different  providers  of  (private)  health  insurance  pay  into  a  fund 
depending  on  the  number  of  customers.  The  proceeds  of  the  fund  will  then  be 
redistributed to the same providers; however the insurance company or companies with a 
high risk customer base, or higher than the market average, will receive more from the 
fund than they had contributed52. 

50   Unlabeled lines concern Member States where the percentage was too low to visualise. 
51   OECD 
a  Glance 

2021:  OECD 

Indicators,  OECD 

(2021),  Health 
https://doi.org/10.1787/ae3016b9-en.  

at 

Publishing, 

Paris, 

52   Such a scheme for example exists in Ireland: Commission Decision SA.64337 (2022/N) of 31 March 2022, Risk 

Equalisation Scheme 2022 – Ireland (OJ C 196, 20.5.2022, p. 4).  

22 

 
 
 
 
 
                                                           
3.1.3.  Case practice of the Commission and relevant case law 

Between 2012 and June 2022, the Commission has  adopted at  least  23 decisions in the 
health  and  related  sector.  Among  these  decisions,  5  decisions  were  adopted  under  the 
2012  SGEI  Package  (based  on  the  SGEI  Decision53  or  on  the  SGEI  Framework54),  1 
decision55 was  adopted under the Guidelines on State aid  for rescuing and  restructuring 
non-financial undertakings in difficulty56, 2 decisions were adopted directly under Article 
107(3)(c)  TFEU57,  3  decisions  concluded  that  the  measures  were  existing  aids58  and  12 
decisions concluded that the measures do not constitute State aid within the meaning of 
Article 107(1) TFEU, either because the beneficiaries (for example public hospitals) do 
not exercise an economic activity and thus do not act as undertakings within the meaning 
of  Article  107(1)  TFEU59,  either  because  the  measure  conferred  no  advantage  to  the 
beneficiaries60;  either  because  the  measure  had  a  purely  local  impact  and  consequently 
had no effect on trade between Member States61. 

In addition to the above-mentioned decisions, a number of decisions were adopted under 
the Temporary Framework for State aid measures to support the economy in the current 

53   See  Commission  decision  of  5  July  2016  on  State  aid  SA.19864  -  2014/C  (ex  2009/NN54)  implemented  by 

Belgium Public financing of Brussels public IRIS hospitals (OJ L 351, 22.12.2016, p. 68) 

54   See  Commission  decision  of  20  February  2013  on  State  aid  SA.34515  (2013/NN)  –  Ireland  Risk  equalisation 
scheme  for  2013  (OJ  C  204,  18.7.2013,  p.  2);  Commission  decision  of  29  January  2016  on  State  aid  SA.41702 
(2016/NN) – Ireland Risk Equalisation Scheme (OJ C 104, 18.3.2016, p. 1), prolonged by Commission Decision of 
14  December  2020  on  State  aid  SA.58851  –  Ireland  Prolongation  of  the  Risk  Equalisation  Scheme  (OJ  C  17, 
15.1.2021, p. 1); and Commission decision of 31 March 2022 on State aid SA.64337 – Ireland Risk Equalisation 
Scheme 2022 (OJ C 196, 20.5.2022, p. 4). 

55   See  Commission  decision  10  December  2014  on  State  aid  SA.39426  (2014/N)  Rescue  aid  to  PICFIC  in  A.S., 

healthcare services operator in the Region of Lazio (OJ C 44, 6.2.2015, p. 13 ) 

56   Communication  from  the  Commission  –  Guidelines  on  State  aid  for  rescuing  and  restructuring  non-financial 

undertakings in difficulty, OJ C249, 31.7.2014, p. 1. 

57   See  Commission  decision  of  4  December  2013  on  State  aid  SA.35679  (2012/N)  –  Germany  Telemedicine 
Infrastructure in Saxony (OJ C10, 14.1.2014, p. 4); Commission decision of 14 April 2021 on State aid SA.59176 
(2020/N) – Denmark Aid for the establishment of a notified body in Denmark (OJ C 177, 7.5.2021, p. 12).  

58   See  Commission  decision  of  23  November  2017  on  State  aid  SA.42268  (2017/E)  –  Germany  State  aid  for  the 
promotion of public welfare services (OJ C 61, 16.2.2018, p. 4); Commission decision of 23 November 2017 on 
State aid SA.42877 (2017/E) – Germany CarePool Hannover GmbH (OJ C 61, 16.2.2018, p. 4); See Commission 
decision  of  on  State  aid  SA.;  Commission  decision  of  on  State  aid  SA.18879  –  E  6/2006  –  Ireland  Unlimited 
guarantee in favour of the Voluntary Health Insurance Board (VHI) (OJ C 363, 23.11.2012, p. 5).  

59   See  Commission  decision  of  12  November  2020  on  State  aid  SA.39324  (2018/NN)  –  Estonia  -  Alleged  aid  to 
public  hospitals  listed  in  the  Estonian  Hospital  Network  Development  Plan  (OJ  C  421,  4.12.2020,  p.  3), 
Commission  decision  of  4  December  2017  on  State  aid  SA.39913  (2017/NN)  –  Italy  Alleged  compensation  of 
public  hospitals  in  Lazio  (OJ  C  102,  16.3.2018,  p.  3);  Commission  decision  of  15  October  2014  on  State  aid 
SA.23008 - 2013/C (ex 2013/NN) implemented by Slovak Republic for Spoločná zdravotná poisťovňa, a.s (SZP) 
and Všeobecná zdravotná poisťovňa, a.s (VZP) (OJ L 41, 17.2.2015, p. 25). 

60   See Commission decision of 15 October 2015 on State aid SA. 37624 – Slovakia Alleged illegal State aid to Imuna 
Pharm  (OJ  C  44, 6.2.2015,  p. 8)  ;  Commission  decision of  18  August 2016  on State  aid  SA.43092  (2016/FC)  – 
United Kingdom Complaint of Nurse Prescribers Ltd against the UK department of health (OJ C 425, 18.11.2016, 
p. 9); Commission decision of 23 October 2017 on State aid SA.42028 (2017/NN) – Finland Alleged illegal State 
aid  awarded  to  Yliopiston  Apteekki  Oy  (UHP)  (OJ  C  422,  8.12.2017,  p.  1);  Commission  decision  of  24  March 
2020 on State aid SA.43546 (2016/FC) – Slovenia Alleged State aid to Lekarna Ljubljana (OJ C 144, 30.4.2020, p. 
3); See Commission decision of 21 October 2016 on State aid SA.36798 (2016/NN) – Germany Alleged unlawful 
State  aid  scheme  "Cash  pooling  of  the  undertakings  owned  by  the  City  of  Osnabrück  (including  Klinikum 
Osnabrück GmbH)" (OJ C 110, 7.4.2017, p. 4).  

61   See  Commission  decision  of  29  march  2015  on  State  aid  SA.38035  (2015/NN)  –Germany  –Alleged  aid  to  a 
specialised  rehabilitation  clinic  for  orthopaedic  medicine  and  trauma  surgery  (OJ  C  188,  5.6.2015,  p.  5); 
Commission decision of 29 April 2015 on State aid SA.37904 – Germany – Alleged State aid to medical center in 
Durmersheim (OJ C 188, 5.6.2015, p. 2); Commission decision of 29 April 2015 on State aid SA.37432  — Czech 
Republic  –Funding  to  public  hospitals  in  the  Hradec  Králové  Region  (OJ  C  203,  19.6.2015,  p.  2);  Commission 
decision of 7 November 2012 on State aid SA.34576 Portugal –Jean Piaget North-east Continuing Care Unit (OJ C 
73, 13.3.2013, p. 1). 

23 

 
 
 
                                                           
COVID-19  outbreak  (“the  Temporary  Framework”)62  in  order  to  support  undertakings 
active inter alia in the health sector.63  

Among  the  Commission’s  decisions  adopted  in  the  health  sector,  3  were  challenged 
before the Union Courts between 2012 and June 2022: a decision related to the Slovak 
health insurance64, a decision related to public hospitals in Lazio65, and a decision related 
to  the  public  pharmacy  “Lekarna  Ljubljana”66.  The  issues  raised  in  these  cases  mainly 
relate  to  the  distinction  between  economic  and  non-economic  activities  for  healthcare 
providers.  

3.2. 

Social services 

Social  services  are  of  particular  importance,  as  they  are  central  to  creating  a  caring, 
inclusive, and productive society. This has been recognised by the Council when stating 
that  social  services  “contribute  directly  to  reinforcing  social  protection  of  every  citizen 
and  they  contribute  to  economic,  social  and  territorial  cohesion  at  local,  regional, 
national and European levels while playing a fundamental role in job creation […]” and 
that social services of general interest “are person-oriented services, designed to respond 
to human vital needs, generally driven by the principle of solidarity and often rooted in 
(local)  cultural  traditions  and  contribute  to  the  safeguard  of  fundamental  rights  and 
human dignity, to non-discrimination and to ensuring the creation of equal opportunities 
for  all,  therefore  enabling  individuals  to  play  a  significant  part  in  the  economic  and 
social life of the society”67.  

3.2.1.  Key figures and State aid expenditure 

In  2019,  the  general  government  expenditure  in  the  EU-27  only  on  social  protection68 
stood at EUR 2 699 billion, which is 19.3 % of GDP69. These figures were more or less 
stable between 2012 and 2019.70  

62   C(2020) 1863 final (OJ C 091 I, 20.3.2020, p. 1). 
63   See  as  an  example  Commission  decision  of  16  July  2020  on  State  aid  SA.57897  (2020/N)  –  the  Netherlands 
COVID-19:  Direct  grant  scheme  for  e-Health  services  at  home  under  the  Temporary  Framework  for  State  aid 
measures to support the economy in the current COVID-19 outbreak (OJ C 260, 7.8.2020, p. 14). 

64   Commission decision of 15 October 2014 on State aid SA.23008 - 2013/C (ex 2013/NN) implemented by Slovak 
Republic for Spoločná zdravotná poisťovňa, a.s (SZP) and Všeobecná zdravotná poisťovňa, a.s (VZP)  (OJ L 41, 
17.02.2015,  p.  25).  Judgment  of  the  General  Court  of  5  February  2018  Dôvera  zdravotná  poistʼovňa,  a.s.  v 
Commission  EU:T:2018:64.  This  case  has  been  appealed  (See  Judgment  of  the  Court  of  11  June  2020, 
Commission and Slovak Republic v Dôvera zdravotná poistʼovňa, a.s., Joined Cases C-262/18 P and C-271/18 P, 
EU:C:2020:450). 

65   Commission  decision  of  4  December  2017  on  State  aid  SA.39913  (2017/NN)  –  Italy  Alleged  compensation  of 
public  hospitals  in  Lazio  (OJ  C  102,  16.3.2018,  p.  3).  See  Judgment  of  the  General  Court  of  2  June  2021Casa 
Regina Apostolorum della Pia Società delle Figlie di San Paolo v Commission EU:T:2021:315. This case is at the 
moment under appeal under the number C-492/21 P - Casa Regina Apostolorum della Pia Società delle Figlie di 
San Paolo v Commission. 

66   Commission decision of 24 March 2020 on State aid SA.43546 (2016/FC) – Slovenia Alleged State aid to Lekarna 
Ljubljana  (OJ  C  144,  30.4.2020,  p.  3);  See  Judgment  of  the  General  Court  of  27  April  2022  Petra  Flašker  v 
Commission Case T-392/20 EU:T:2022:245. This case is at the moment under appeal before the Court of Justice in 
case C-447/22 P - Slovenia v Flašker and Commission. 

67   See  Council  conclusions of  6  December  2010,  “social  Services  of  General  Interest:  at  the  heart of  the European 
social model”, available at https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/lsa/118297.pdf.  
68   Defined as “Sickness and disability; old age; survivors; family and children; unemployment; housing; R&D; social 
protection  and  social  exclusion  n.e.c.”  according  to  the  classification  of  the  functions  of  government  (COFOG), 
https://ec.europa.eu/eurostat/statistics-
OECD 
developed 
explained/index.php?title=Glossary:Classification_of_the_functions_of_government_(COFOG)).  

1999 

(see: 

the 

by 

in 

69   Eurostat, 

government 

expenditure 

on 

social 

protection, 

https://ec.europa.eu/eurostat/statistics-

explained/index.php?title=Government_expenditure_on_social_protection.  

24 

 
 
 
                                                           
However, in 2020, the government expenditure in the EU on social protection increased 
by 2.7 percentage points and amounted to EUR 2 942 billion or 22 % of GDP. This is the 
strongest annual increase of the ratio since 1995. This was a consequence of decreases in 
the GDP in 2020 as well as increases in total expenditure on 'social protection' to mitigate 
the effects of the COVID-19 pandemic.71 

This amount can be split into several groups72: “old age” (11.3 % of GDP), “survivors” 
(1.6%  of  GPD),  “sickness  and  disability”  (3 %  of  GDP,  mostly  social  insurance 
schemes),  “family  and  children”  (2 %  of  GDP),  “unemployment”  (2.2 %  of  GDP)  and 
“housing” (0.3 % of GDP, mostly social protection payments to households to help with 
the cost of housing as well as the operation of social housing schemes). 

Social protection represented the largest area of general government expenditure in 2020 
in all EU Member States. The ratio of government social protection expenditure to GDP 
varied across EU Member States from 10.2 % of GDP in Ireland to 27.3 % in France. 

In  addition,  it  should  be  noted  that  according  to  the  Member  States’  biennial  SGEI 
reports73,  the  total  spending  on  SGEI  under  Article  2(1)(c)  of  the  SGEI  Decision  (i.e. 
SGEIs  meeting  social  needs)  is  only  a  fraction  of  the  spending  on  social  protection 
presented above. The reported spending on SGEIs meeting social needs made a sizeable 
jump  between  2013  and  2014  (notably  Belgium,  Czechia,  Finland,  France,  Ireland  and 
the Netherlands reported significantly more spending than in 2012). For this reason, the 
spending  is  much  more  than  what  would  be  expected  looking  at  inflation  since  2012. 
Relative to GDP SGEI spending for SGEIs meeting social needs has also increased since 
2012. In 2012, Member States granted approximately EUR 3.9 billion in absolute terms, 
i.e.  0.0003 %  of  GDP,  whereas  in  2019,  they  spent  approximately  EUR20.3  billion  in 
absolute terms, i.e. 0.002 % of GDP. The evolution of SGEI spending for SGEIs meeting 
social needs as percentage of GDP can be seen in figure 6.  

Figure 5 – Social services spending in EUR million (Article 2(1)(c) SGEI Decision) 

25000
20000
15000
10000
5000
0

2012 2013 2014 2015 2016 2017 2018 2019

Article 2(1)(c ) spending

Inflation

70   19.8 % of GDP in 2019, 20% of GPD in 2013, 19.9 of GPD in 2014, 19.7% of GPD in 2015 and 2016, 19.4% of 
GPD  in  2017,  19.2%  of  GPD  in  201,  19.3%  of  GPD  in  2019  (Eurostat,  government  expenditure  on  health: 
https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Government_expenditure_on_health). 

71   Eurostat, 

government 

expenditure 

on 

social 

protection, 

https://ec.europa.eu/eurostat/statistics-

explained/index.php?title=Government_expenditure_on_social_protection.  

72   For  the  definition  of  the  different  groups,  see  Eurostat,  Manual  on  sources  and  methods  for  the  compilation  of 
COFOG  statistics,  Classification  of  the  Functions  of  Government  (COFOG),  2019  edition,  pages  226-228, 
available 
https://ec.europa.eu/eurostat/documents/3859598/10142242/KS-GQ-19-010-EN-N.pdf/ed64a194-
81db-112b-074b-b7a9eb946c32?t=1569418084000.  

at 

73   Pursuant to Article 9 of the SGEI Decision and paragraph 62 of the SGEI Framework, Member States shall submit 
a  report  on  their  compliance  with  the  SGEI  rules  every  two  years.  The  reports  are  available  online: 
https://ec.europa.eu/competition-policy/state-aid/legislation/sgei_en. 

25 

 
 
 
 
                                                                                                                                                                            
Figure 6 – SGEI spending under Article 2(1)(c) SGEI Decision as % of GDP74  

3,500%

3,000%

2,500%

2,000%

1,500%

1,000%

0,500%

0,000%

LT

LU
LV
FR
BECZ
EU

FI

SL

NL

2012 2013 2014 2015 2016 2017 2018 2019

It  follows from the above that social services (going beyond what is reported as SGEI) 
contribute  significantly  to  the  EU’s  economy.  The  financing  of  the  social  services  is 
provided  predominately  by  public  funds.  Indeed,  on  average  in  the  EU,  social 
contributions financed over half (55%) of total expenditure on social protection in 2016. 
The general government contribution, coming from general taxation, accounted for 40% 
of  funding,  while  other  sources  (such  as  interest  payments  from  financial  investments) 
accounted for 5% of the total.75  

3.2.2.  Case practice of the Commission and relevant case law 

Between 2012 (adoption of the 2012 SGEI Package) and June 2022, the Commission has 
adopted  a  number  of  decisions  concerning  social  services  (notably  services  meeting 
social  needs  as  regards  childcare,  access  to  and  reintegration  into  the  labour  market, 
social housing and the care and social inclusion of vulnerable  groups). Considering the 
wide  scope  and  diversity  of  social  services  it  is  not  possible  to  be  exhaustive.  Certain 
decisions  concluded  that  the  measure(s)  at  issue  did  not  constitute  State  aid  within  the 
meaning  of  Article  107(1)  TFEU76.  Other  measures  were  declared  compatible  with  the 
internal  market  as  they  fulfilled  the  conditions  of  the  SGEI  Decision77  or  Article 
107(3)(c) TFEU78. 

In addition to the above-mentioned decisions, a number of measures for social services 
were approved under the Temporary Framework (see Section 3.3.1)79 in order to support 
undertakings providing social services.  

74   Unlabeled lines concern Member States where the percentage was too low to visualise. 
75   Social  protection  expenditure  and  its  financing  in  Europe:  A  study  of  national  policies  available  at: 

https://ec.europa.eu/social/main.jsp?catId=738&langId=en&pubId=8253&furtherPubs=yes. 

76   See as an example Commission decision of 27 March 2017 on State aid SA.38825 (2016/NN) Alleged State aid to 
private  providers  of  socio-sanitary  services  (OJ  C  219,  7.7.2017,  p.  2).  See  as  well  Commission  decision  of  9 
August  2016  on  State  aid  SA.38920  (2016/NN)  Alleged  grant  support  to  Santa  Casa  da  Misericordia  de  Tomar 
(SCMT) (OJ C 406, 4.11.2016, p. 6). 

77   See as examples Commission decision of 4 April 2018 on State aid SA.38469 - Sheltered employment in Sweden 
(OJ C 198, 7.7.2017, p. 4); Commission decision of 17 March 2022 on State aid SA.49313 Alleged illegal State aid 
to ENS (Ente Nazionale Sordi) (OJ C 204, 8.6.2018, p. 3). 

78   See  as  an  example  Commission  decision  of  23  July  2018  on  State  aid  SA.44664  (2016/FC)  Alleged  aid  to 

HelpLink South (OJ C 360, 5.10.2018, p. 3). 

79   See as an example Commission decision of 9 July 2020 on  State aid SA.57797 (2020/N) COVID-19: Support to 
the social tourism sector (OJ 245, 5.10.2018, p. 3); Commission decision of 9 November 2021 SA.100306 COVID-
19: Extension of SA.61360 with increased budget (special transport in the Netherlands) (OJ C 469); Commission 
26 

 
 
 
 
                                                           
3.3.  Recent  events:  the  COVID-19  pandemic  and  the  Russian  war  of 

aggression against Ukraine 

3.3.1.  COVID-19 pandemic 

The COVID-19 pandemic impacted the entire economy and in particular the health sector 
and social services. 

Recognising  the  COVID-19  pandemic  as  a  major  shock  to  the  global  and  Union’s 
economies and the need to mitigate those negative repercussions on the EU economy, on 
19  March  2020,  the  Commission  adopted  the  Temporary  Framework,  amended  several 
times afterwards.80  

The  aim  of  the  Temporary  Framework  was  to  tackle  the  severe  liquidity  needs  of 
undertakings due to the exceptional circumstances created by the COVID-19 pandemic. 
Unlike  the  2012  SGEI  Package,  the  Temporary  Framework  was  mostly  based  on  the 
second limb of Article 107(3)(b) TFEU, which constitutes an exceptional legal basis for 
compatibility  with  the  internal  market,  according  to  which  “aid  to  remedy  a  serious 
disturbance  in  the  economy  of  a  Member  State”  may  be  declared  compatible.  Having 
recognised the COVID-19 pandemic as such a serious disturbance, in line with case law, 
the  Temporary  Framework  laid  down  the  conditions  under  which  certain  COVID-19-
realted measures would be compatible with the internal market. As such, the Temporary 
Framework  has  been  developed  to  cater  for  an  emergency  situation  and  led  to 
extraordinary  financial  commitments.  The  Temporary  Framework  expired  on  30  June 
202281, with some exceptions82. 

Healthcare  providers  and  social  services  providers  could  benefit  from  the  Temporary 
Framework.  However,  if  those  providers  had  already  benefited  from  a  compensation 
under  the  2012  SGEI  Package,  the  aid  granted  under  the  Temporary  Framework  could 
not lead to an overcompensation of the services provided under the SGEI rules. 

decision of 9 July 2020 on  State aid SA.57797  (2020/N) COVID-19: Support to the social tourism sector (OJ C 
245, 24.7.2020, p. 12). 

80   Communication from the Commission C(2020) 2215 final of 3 April 2020 on the Amendment of the Temporary 
Framework  for  State  aid  measures  to  support  the  economy  in  the  current  COVID-19  outbreak  (OJ  C  112I, 
4.4.2020, p. 1), Communication from the Commission C(2020) 3156 final of 8 May 2020 on the Amendment of 
the Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak (OJ C 
164,  13.5.2020,  p.  3),  Communication  from  the  Commission  C(2020)  4509  final  of  29  June  2020  on  the  Third 
Amendment of the Temporary Framework for State aid measures to support the economy in the current COVID-19 
outbreak (OJ C 218 of 2 July 2020, p. 3), Communication from the Commission C(2020) 7127 final of 13 October 
2020 on the Fourth Amendment of the Temporary Framework for State aid measures to support the economy in the 
current  COVID-19  outbreak  and  amendment  to  the  Annex  to  the  Communication  from  the  Commission  to  the 
Member States on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union 
to  short-term  export-credit  insurance  (OJ  C  340  I,  13.10.2020,  p.  1),  Communication  from  the  Commission 
C(2021)  564  final  of  28  January  2021  on  the  Fifth  Amendment  to  the  Temporary  Framework  for  State  aid 
measures  to  support  the  economy  in  the  current  COVID-19  outbreak  and  amendment  to  the  Annex  to  the 
Communication  from  the  Commission  to  the  Member  States  on  the  application  of  Articles  107  and  108  of  the 
Treaty on the Functioning of the European Union to short-term export-credit insurance (OJ C 34, 1.2.2021, p. 6), 
and Communication from the Commission C(2021) 8442 final of 18 November 2021 on the Sixth Amendment to 
the Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak and 
amendment to the Annex to the Communication from the Commission to the Member States on the application of 
Articles 107 and 108 of the Treaty on the Functioning of the European Union to short term export-credit insurance, 
(OJ C 473, 24.11.2021, p. 1) 

81   Initially, the Temporary Framework was set to expire on 31 December 2020. 
82  In  particular,  investment  and  solvency  support  measures  may  still  be  put  in  place  until  31  December 
2023.  Investment support was originally possible until 31 December 2022 but has now been extended to coincide 
with the expiry date of solvency support.    In addition, the Temporary Framework already provides for a flexible 
transition,  under  clear  safeguards,  in  particular  for  the  conversion  and  restructuring  options  of  debt  instruments, 
such as loans and guarantees, into other forms of aid, such as direct grants, until 30 June 2023. 

27 

 
 
 
                                                                                                                                                                            
In  addition  to  the Temporary Framework, the Commission  also  adopted the Regulation 
(EU)  2021/241  of  the  European  Parliament  and  of  the  Council  of  12  February  2021 
establishing  the  Recovery  and  Resilience  Facility.  This  Regulation  establishes  the 
Recovery  and  Resilience  Facility  (RRF)83.  The  aim  of  the  RRF  is  to  mitigate  the 
economic and social impact of the coronavirus pandemic and make European economies 
and  societies  more  sustainable,  resilient  and  better  prepared  for  the  challenges  and 
opportunities  of  the  green  and  digital  transitions.  The  health  sector  and  social  services 
could benefit from the RRF in many cases. 

3.3.2.  Russian war of aggression against Ukraine  

On  24  February  2022,  Russia  launched  an  unprovoked  and  unjustified  military 
aggression against Ukraine. The EU and international partners immediately reacted to the 
serious violation of the territorial integrity, sovereignty and independence of Ukraine by 
imposing restrictive measures (for example, sanctions) against Russia and Belarus84.  

As  a  result,  on  23  March  2022,  the  Commission  adopted  a Temporary  Crisis 
Framework to enable Member States to use the flexibility foreseen under State aid rules 
to support the economy in the context of Russia's invasion of Ukraine85. This Temporary 
Crisis  Framework  aims  to  mitigate  the  immediate  social  and  economic  negative 
repercussions  in  the  EU,  to  preserve  economic  activities  and  jobs,  and  to  facilitate  the 
structural adjustments  needed in  response to  the new economic situation created by the 
Russian military aggression against Ukraine. 

Healthcare providers and social services providers can benefit from the Temporary Crisis 
Framework.  However,  if  those  providers  have  already  benefited  from  a  compensation 
under  the  2012  SGEI  Package,  the  aid  granted  under  the  Temporary  Crisis  Framework 
cannot lead to an overcompensation of the services provided under the SGEI rules. 

4.  EVALUATION FINDINGS  

4.1.  To what extent was the intervention successful and why? 

As  noted  in  section  2.1.5  above,  the  2012  SGEI  Package  aimed  at  clarifying  basic 
concepts relevant for the application of the State aid rules to SGEIs. At the same time, it 
sought  to  simplify  the  rules  for  small  SGEIs  of  a  local  nature  and  for  social  services; 
enlarge  and  deepen  the  competition  scrutiny  for  large  commercial  SGEI;  and  give 
incentives to improve efficiency to large scale SGEIs.  

The  objective  of  the  present  evaluation  is  to  assess  whether  those  objectives  were 
successfully achieved and why. However, due to the scope of the evaluation (limited to 
healthcare and social services), the present evaluation does not assess, or does so only to 
a  limited  extent,  whether  the  2012  SGEI  Package  actually  enlarged  and  deepened  the 
competition  scrutiny  for  large  commercial  SGEI,  and  whether  it  gave  incentives  to 
improve  efficiency  to  large  scale  SGEIs.  This  is  so  because  these  objectives  are 
inextricably  linked  to  the  application  of  the  SGEI  Framework,  which  applies  to  SGEIs 
with large compensation amounts. Healthcare and social services are by their very nature 

83   https://ec.europa.eu/info/live-work-travel-eu/health/coronavirus-response/recovery-plan-europe_en#documents 

“Europe's moment: Repair and Prepare for the Next Generation” COM(2020) 456 final. 

84   Due to its role in facilitating Russia’s military aggression. 
85   Communication  from  the  Commission  Temporary  Crisis  Framework  for  State  aid  measures  to  support  the 

economy following the aggression against Ukraine by Russia (OJ C 131I, 24.3.2022, p. 1). 

28 

 
 
 
                                                           
covered  for  the  most  part  by  the  SGEI  Decision,  reason  why  the  abovementioned 
objectives are not assessed in the present evaluation. 

This evaluation focuses on assessing whether the 2012 SGEI Package was successful in 
clarifying basic concepts relevant for the application of the State aid rules to SGEIs, and 
whether it managed to simplify the rules for small SGEIs of a local nature and for social 
services.  It  also  analyses  to  what  extent  each  of  these  objectives  was  achieved 
(effectiveness), how they were achieved (efficiency) and whether this was coherent with 
other EU polices (coherence). 

4.1.1.  Effectiveness 

This section evaluates the extent to which the objectives of the 2012 SGEI Package have 
been achieved and also identifies the areas where effectiveness could be improved. 

The findings of the analysis on effectiveness are subject to the limitations stemming from 
the stakeholder consultation86.  

As described in detail in Section 2.1.5, the overall objective of the 2012 SGEI Package 
was  to  support  Member States  in  funding  SGEIs  that  are  of  key  importance  to  citizens 
and society as a whole while preserving the key aspects of State aid control. 

In particular and as regard health and social services, the 2012 SGEI Package aimed to 
clarify  certain  concepts,  simplify  compatibility  criteria  and  reduce  the  administrative 
burden for Member States.  

In  order  to  simplify  certain  requirements,  the  scope  of  the  sectors  subject  to  the 
notification  exemption  was  broadened  and 
threshold  below  which  public 
compensation  is  not  considered  as  State  aid  was  increased  to  EUR  500  000  per 
undertaking  and  per  three  fiscal  years  (compared  to  the  general  de  minimis  ceiling  of 
EUR 200 000 per three fiscal years). 

the 

In order to clarify  certain State aid concepts, the  Commission  in  particular  adopted the 
SGEI Communication which explains inter alia, on the basis of the rulings of the Union 
Courts  and  of  the  Commission’s  decisional  practice,  the  concepts  of  ‘undertaking’, 
‘economic  activity’,  ‘State  resources’,  and  ‘effect  on  trade’.  Moreover,  the  SGEI 
Communication also  clarifies key  concepts  of SGEI and provides  guidance on the  four 
Altmark criteria. 

Overall,  stakeholders  are  of  the  view  that  compared  to  the  baseline  scenario,  the  2012 
SGEI Package met its objective. However, they are of the opinion that the rules could be 
clarified and simplified further. 

In  the  following,  the  extent  to  which  the  2012  SGEI  Package  clarified  and  simplified 
certain concepts will be analysed.  

86   That limitation is taken into account when analysing the results of the public consultation and, where possible, its 

impact has been mitigated by triangulating with other data sources. 

29 

 
 
 
 
 
                                                           
SGEI Decision 

With  the  modification  of  the  SGEI  Decision,  the  scope  of  the  sectors  subject  to  the 
notification  exemption  was  broadened.  Indeed,  the  scope  of  the  SGEI  Decision  was 
extended as regards its application without any compensation threshold to certain social 
services. That meant that a large set of social services was as of the adoption of the 2012 
SGEI  Package  exempted  from  prior  notification  regardless  of  the  amount  of  the 
compensation,  while  aid  directed  towards  other  public  service  providers  had  to  be 
notified if it exceeded a threshold of EUR 15 million87.  

As  a  result,  cases  where  the  competition  distortions  brought  about  by  the  SGEI  are 
limited,  do  not  have  to  be  notified  to  the  Commission  for  prior  approval,  while  the 
scrutiny for large commercial SGEIs was enlarged and deepened. 

Overall, stakeholders are of the view that the enlargement of the notification exemption 
for certain social services has facilitated the provision of health and social SGEIs as it has 
simplified the implementation of the rules88. Stakeholders agree that it helped to reduce 
the  administrative  burden  and  the  workload  of  public  authorities.  However,  certain 
stakeholders also highlighted that the lack of clarity of certain concepts could, to a certain 
extent,  undermine  the  overall  efforts  of  simplification89.  Those  concepts  are  detailed 
below. 

Social housing 

The concept of “social housing” is not new and was already included in the 2005 SGEI 
Decision: 

Recital 16 of the 2005 SGEI Decision 

Recital 11 of the 2012 SGEI Decision 

“[…] undertakings in charge of social housing 
providing housing for disadvantaged citizens 
or socially less advantaged groups, which due 
to solvability constraints are unable to obtain 
housing at market conditions, should benefit 
from the exemption from notification provided 
for in this Decision […]” 

“[…] undertakings in charge of social services, 
including the provision of social housing for 
disadvantaged citizens or socially less 
advantaged groups, who due to solvency 
constraints are unable to obtain housing at 
market conditions, should also benefit from the 
exemption from notification provided for in this 
Decision […]” 

However, in recent  years the attention for and focus on the definition of social housing 
and the closely related term “affordable housing” has increased. This follows for example 
from  the  number  of  written  questions  on  this  issue  that  Members  of  the  European 
Parliament  have  asked  the  Commission.  While  during  the  1999-2004  Commission 
mandate  only  one  written  question  concerned  this  topic,  in  the  following  terms  the 
number  of  written  questions  increased  significantly  to  seven  or  more.  In  the  current 
ongoing term 2019-2024, already six questions on this topic have been asked. 

87   Under  the  2005  SGEI  Decision,  only  hospitals  and  social  housing  benefitted  from  the  notification  exemption 
regardless  of  the  amount of  compensation.  For  other  services,  including  socials  services,  a  threshold of  EUR  30 
million applied. The 2012 SGEI Decision extended the notification exemption without threshold to social services.  
88  To the question in the public consultation: “Based on your experience, have the SGEI rules applicable to health and 
social services achieved the objectives listed below while maintaining a competitive internal market?: To simplify 
the  State  aid  rules  applicable  to  health  and  social  services/SGEIs  compared  to  the  2005  Package  by  exempting 
them from notification to the Commission?”, 30% of the respondents have answered to a large extent and 42.50% 
to some extent. 

89   This point has been highlighted in particular by several public authorities’ representatives. 

30 

 
 
 
 
                                                           
Moreover, several stakeholders over the past few years have published written opinions, 
studies  and/or  analyses  on  the  topic  of  social  and  affordable  housing90,  which  will  be 
referenced  below  to  the  extent  relevant  for  the  present  evaluation.  The  focus  of 
stakeholders was largely on whether the definition of social housing as defined in recital 
11  of  the  SGEI  Decision  is  too  wide  or  too  narrow.  Those  two  very  diverse  views  on 
complete opposite sides  of the spectrum were also reflected in  the  replies to  the public 
consultation carried out end 2019.  

To the question whether the definition of social housing (as laid down in recital 11 of the 
SGEI  Decision)  facilitated  compliance  with  the  SGEI  rules  applicable  to  health  and 
social  services,  24  respondents  fully  or  partially  agreed,  while  10  respondents  fully  or 
partially disagreed. The other respondents did not know, had no opinion or were neutral. 

It appears from the replies received that respondents working for or caring about societal 
groups that are truly vulnerable (i.e. homeless people) and respondents representing the 
private rental market agree with the current definition. For example, FEANTSA91 stated 
that it “considers that the scope of social services and the definition of social housing are 
sufficiently  clear  and  leave  significant  discretion  to  [Member  States]”  when  asked  to 
elaborate on the question above. The International Union of Property Owners92 took the 
view that the definition of social housing is among “the most effective provisions of the 
former Monti-Kroes package”.  

Still,  there  is  also  a  group  that  considers  the  definition  of  social  housing  laid  down  in 
recital 11 of the SGEI Decision as too strict and narrow. According to this group, there is 
a growing segment of citizens that do not have the financial means to rent or buy housing 
on  market  terms,  but  are  not  considered  disadvantaged  citizens  or  socially  less 
advantaged groups and are therefore not entitled to social housing funded under the SGEI 
rules. These stakeholders explained notably that: 

  “the definition for social housing is too tight, "affordable housing" would be more 

useful”.93 

  “The  definition  of  social  housing  residents  as  necessarily  being  "disadvantaged 
citizens  or  socially  less  advantaged  groups"  limits  public  authorities'  ability  to 
ensure social diversity and avoid ghettoization.”94 

  “The SGEI Decision helped clarify the regulatory context in which social housing 
providers operate. There is, however, room for improvement regarding recital 11.  

This recital […] leads to confusion as the group that is 'unable to obtain housing 
at  market  conditions'  moved  beyond  'disadvantaged  citizens  or  socially  less 
advantaged groups'.  

Today's  market  situation  with  regards  to  housing,  is  characterized  by  steep 
increases in housing costs, as is assessed by several studies […]  

This changed reality on housing markets should be taken in consideration when 
revising the SGEI Decision.”95 

90   See for example UN Habitat, Financing Affordable Social Housing in Europe, 2009. 
91    Fédération Européenne d'Associations Nationales Travaillant avec les Sans-Abri. 
92    A pan-European non-profit association. 
93   Public authority, national ministry. 
94   Public authority. 

31 

 
 
 
                                                           
Reasonable profit 

As regards the concept of reasonable profit, which comes back both in the SGEI Decision 
and the SGEI Framework, 20 stakeholders (39.2 %) that replied to the public consultation 
and that have experience with the concept indicated that they face difficulties and that the 
concept is not always clear96. Three stakeholders (5.9 %) indicated that they do not face 
any difficulties with the concept and a majority of 28 respondents (54.9 %) indicated that 
they  do  not  know  or  that  it  is  not  relevant  for  them  (see  figure  7).  The  expert  study 
confirmed this97. 

Figure 7 – Have you experienced difficulties in applying the “reasonable profit” 
requirement as explained in Article 5 of the 2012 SGEI Decision? 

The  European  Economic  and  Social  Committee  (“EESC”)  published  a  report  on  the 
matter.  In  this  report98,  the  EESC  highlights  the  apparent  complexity  of  the  reasonable 
profit  calculations,  notably  for  local  SGEIs.  Currently,  the  SGEI  Decision  provides 
flexibility  and  allows  different  ways  of  calculating  a  reasonable  profit99,  if  the  relevant 
authorities want to add a reasonable profit to the compensation amount. According to the 
EESC, reasonable profit calculations involve hiring “costly consultancy services” that are 
out  of reach for most SGEIs100. A report from  the Commission  for Economic Policy of 
the  European  Committee  of  the  Regions  confirms  this  as  it  considers  that  local  and 
regional  authorities  are  insufficiently  equipped  to  determine  the  reference  points  for  a 

95   Association representing social housing sector. 
96   As  example  a  general  matter,  stakeholders  consider  that  the  concept  is  not  appropriate  to  the  current  market  in 
particular for health and social services and for services provided at local level. Certain Stakeholders indicate that 
for  health  and  social  services  it  is  difficult  to  calculate  the  reasonable  return  on  capital  as  these  services  are 
provided in certain Member States by non-profit organisations and these organisations do not have capital in the 
legal  sense.  Others  indicated  that  the  concept  of  “commercial  risk”  is  inappropriate/or  that  the  limitation  to  an 
upper limit of 100 basis points above the swap rate as reasonable profit for services that do not involve commercial 
risk is inappropriate. Indeed, stakeholders indicate that SGEIs are as a result not attractive. In addition, acquiring 
information  to  determine  a  reasonable  profit  can  be  challenging  especially  for  activities  with  a  social  character. 
Public authorities also faced challenges to calculate the net costs and consequently Member States applied different 
approaches. Applying the concept is considered, by many stakeholders are being too burdensome.  

97  Footnote Error! Bookmark not defined., page 105-106.  
98   Opinion of the European Economic and Social Committee on the ‘Application of State aid rules for compensating 
the provision of services of general economic interest (Decision 2012/21/UE and Community Framework)’, Own-
initiative opinion (OJ C 345, 13.10.2017, p. 45).  

99   The SGEI Framework is clearer and advocated IRR, while at the same time it leaves the door open also for other 
methods. The EESC calls upon the Commission to be more flexible and allow the use of different method (point 
4.9).  

100  Opinion of the European Economic and Social Committee on the ‘Application of State aid rules for compensating 
the provision of services of general economic interest (Decision 2012/21/UE and Community Framework)’, Own-
initiative opinion (OJ C 345, 13.10.2017, p. 45, point 3.6).  
32 

 
 
 
 
                                                                                                                                                                            
reasonable profit101. The same report also provides an overview of which authorities and 
other  stakeholders  reported  difficulties  (either  in  the  biennial  SGEI  report,  the  public 
consultation  or  in  interviews)  with  complying  with  the  reasonable  profit  requirements. 
Those that reported difficulties are geographically widespread, i.e. authorities in Czechia, 
Sweden,  Poland,  Latvia,  Hungary,  Germany,  Belgium  and  Italy  reported  difficulties  of 
some form.  

Several  public  authorities  requested  more  guidance  on  the  concept  to  facilitate  the 
calculation of the reasonable profit and to adapt  it to the market need. Certain  Member 
States indicated that they do not allow SGEI providers to get a reasonable profit as part 
of  the  compensation  due  to  the  complexity  of  the  concept102.  For  those  stakeholders  it 
appears that the existing guidance is not sufficient.  

A similar pattern arises from an external study commissioned by the EESC that reviewed 
the Member States’ biennial SGEI reports103. This study shows that additional guidance is 
requested  by  the  Member  States104.  The  study  recognises  the  flexibility  that  the 
Commission has shown in its case practice, despite the SGEI rules preferring the method 
to assess a reasonable profit using the internal rate of return105. The EESC external study 
also observes that some Member States do not allow a reasonable profit at all due to the 
difficulties they have in calculating it.  

The EESC came back on the reasonable profit concept in an own initiative opinion from 
2022, essentially requesting further guidance and notably how to deal with undertakings 
that  “[keep]  ploughing  the  profits  back  into  [their]  own  activities  and  [describe 
themselves] as a social economy entity or enterprise”.106 

The European Committee of the Regions has also expressed its views on the concept of 
reasonable  profit  in  a  report  from  2016.  It  calls  upon  the  Commission  to  revise  the 
definition  of  reasonable  profit,  notably  because  an  SGEI  provider’s  profit  is  often 
reinvested in SGEIs107.  

At the same time, there are also stakeholders that take the view that the reasonable profit 
calculations should not raise any significant difficulty108.  

Based on the above, the Commission services notice that a number of public authorities 
experience difficulties with the concept and that some Member States are not using the 

101  Alessandrini,  Michele;  Tarantino  Salvatore;  Zillmer,  Sabine;  Derszniak-Noirjean,  Martyna,  Commission  for 
Economic  Policy  –  European  Committee  of  the  Regions,  Regions  and  cities  providing  SGEIs:  identifying 
difficulties resulting from the State aid framework, 2020, page 14-15, 17. 

102  Two national authorities and one regional authority. 
103  ESTAT  Ltd,  Review  of  Member  States'  reports  on  the  implementation  of  the  Commission  Decision  on  the 

provision of State aid to the provision of services of general economic interest, 2017.  

104  Footnote 103.  
105  The Commission has applied both capital-based (such as ROCE) as well as sales-based (such as ROS) profitability 
indicators, even though the 2012 SGEI Decision and 2012 SGEI Framework show a preference for assessing the 
profit on the basis of internal rate of return (IRR) on capital employed in the provision of the SGEI in question. 
106  Opinion  European  Economic  and  Social  Committee,  State  aid  /  health  and  social  services  -  State  aid  rules 
applicable  to  health  and  social  services  –  SGEI  in  a  post-pandemic  scenario.  Thoughts  and  proposals  on  the 
Commission  evaluation to  amend  the  2012 legislative  package  (own-initiative  opinion),  INT/981,  adopted  in  the 
EESC  plenary  session  on  19  May  2022,  points  4.6  and  4.7,  available  at:  https://www.eesc.europa.eu/en/our-
work/opinions-information-reports/opinions/state-aid-rules-applicable-health-and-social-services-sgei-post-
pandemic-scenario-thoughts-and-proposals-commission.  

107  European Committee of the Regions opinion, 119th plenary 10-12 October 2016, ECON-VI/013, paragraph 37.  
108  Cruz, Yábar, Pedro, Japsers Knowledge Economy and Energy Division, Staff Working Papers, The Application of 
State  aid  rules  to  the  public  financing  of  health  care  infrastructures,  October  2013,  page  18.  In  the  targeted 
consultation four national authority reported no or few difficulties.  

33 

 
 
 
                                                           
possibility to grant compensation up to the reasonable profit for fear of being in breach 
due to the complexity of calculating this profit. The Commission services acknowledge 
that acquiring information to determine a reasonable profit can be challenging, especially 
for activities with a social character and that acquiring comparative data to determine the 
reasonable profit can be burdensome. 

SGEI Framework 

With  the  2012  SGEI  Framework,  the  Commission  enlarged  and  deepened  the 
competition scrutiny for large SGEIs and gave incentives to improve efficiency to large 
scale  SGEIs,  in  order  to  address  the  difficulties  encountered  in  the  application  of  the 
2005 SGEI package.  

The  present  evaluation  will  not  detail  to  which extent  the  objectives  of  the  2012  SGEI 
Framework have been achieved. Indeed, as mentioned in the introduction to section 4.1, 
the present evaluation focuses on health and social services, which are generally assessed 
under  the  SGEI  Decision.  However,  such  measures  could  also  be  assessed  under  the 
SGEI Framework if they are for example considered to  “meet social needs”, but not as 
regards health and long term care, childcare, access to and reintegration into the labour 
market, social housing and the care and social inclusion of vulnerable groups and exceed 
EUR 15 million per year (otherwise they could qualify as a general SGEI subject to an 
annual financing ceiling of EUR 15 million under Article 2(1)(a) of the SGEI Decision).  

Such  situations  in  which  aid  for  social  services  should  be  assessed  under  the  SGEI 
Framework  are  theoretical,  as  the  Commission  services  have  not  encountered  such  a 
situation yet.  

In any event, the considerations as regards reasonable profit in the previous section also 
apply to the SGEI Framework as it refers to this concept as well109. 

SGEI Communication 

To address the difficulties encountered in the application of the 2005 SGEI package, the 
Commission  adopted  the  SGEI  Communication,  aiming  at  clarifying  the  key  concepts 
underlying the application of the State aid rules to public service compensation. 

The SGEI Communication gives a comprehensive and practical overview of the EU State 
aid  concepts  relevant  to  SGEIs  and  provides  explanations  of  key  issues  in  a  single 
document.  It  summarises  the  most  relevant  case  law  of  the  EU  Courts  and  the 
Commission’s  decision-making  practice.  As  a  result,  it  aimed  at  facilitating  the 
application of State aid rules for national, regional and local authorities as well as public 
service providers.  

109  See recital 33 and following of the SGEI Framework. 

34 

 
 
 
 
 
                                                           
Economic and non-economic activities (concept of undertaking) 

In the SGEI Communication, the Commission clarified the distinction between economic 
and  non-economic  activities.  Indeed,  the  Commission  listed  criteria  relevant  for  this 
distinction  in  particular  as  regards  social  security  schemes,  healthcare  services  and 
education. 

The distinction between economic and non-economic activities is a core question for the 
application  of  the  State  aid  rules  to  an  activity,  as  SGEI  rules  only  apply  to  economic 
activities because without economic activities there is no undertaking in State aid terms 
and hence no State aid.  

Although guidance on the distinction between economic and non-economic activities is 
provided  through  the  SGEI  Communication,  the  evaluation  demonstrates  that  the 
distinction is not always clear-cut.  

In the context of the external study, the notion of undertaking was considered “blurry” to 
a certain extent by certain stakeholders. They notably stressed that: 

-  “The  definition  of  an  economic  activity  is  not  always  clear-cut  in  the  field  of 
health and social services. A slightly simplified definition to be used in the context 
of  the  SGEI  Framework  would  be  very  welcome.  In  the  same  way,  it  would  be 
appreciated if the slightly simplified definition of an undertaking, used in article 
2, 2 of the regular de minimis regulation (no 1407/2013) could also be used in the 
successor to the de minimis regulation for aid to SGEI's (no 360/2012).”110 

-  “[…]  nombre  d'actions  réalisées  par  des  associations  à  but  non  lucratif  [sont 
assimilées]  à  des  [activités]  économiques  comme  le  transport  volontaire  de 
malades,  l'organisation  de  vacances  sociales  ou  l'hébergement  de  personnes  en 
perte d'autonomie. […] Il est important que le dispositif européen reconnaisse la 
voie médiane entre économique et services publics : le non marchand.”111 

It should be stressed that the SGEI Communication does not take into account the recent 
jurisprudence  of  the  European  Courts  in  the  healthcare  sector.  Indeed,  the  Court  has 
recently clarified the distinction between economic and non-economic activities for this 
sector112. 

As part of the targeted consultation, some Member States113 indicated that the obligation 
under  the  SGEI  rules  to  keep  separate  accounts  is  difficult  to  implement  for  entities 
carrying  out  economic  and  non-economic  activities.  Two  other  respondents  to  the 
targeted  consultation114  considered  that  more  guidance  is  needed  in  this  respect,  for 
example for services related to access and reintegration into the labour market. 

110  Regional authority. 
111  An association representing the rights of elderly. 
112  Judgment  of  the  General  Court  (Second  Chamber)  of  5  February  2018  Dôvera  zdravotná  poistʼovňa,  a.s.  v 
Commission  ECLI:EU:T:2018:64.  This  case  has  been  appealed  (see  Judgment  of  the  Court  of  11  June  2020, 
Commission and Slovak Republic v Dôvera zdravotná poistʼovňa, a.s., Joined Cases C-262/18 P and C-271/18 P, 
EU:C:2020:450)  and  See  Judgment  of  the  General  Court  (Seventh  Chamber)  of  2  June  2021Casa  Regina 
Apostolorum della Pia Società delle Figlie di San Paolo v Commission ECLI:EU:T:2021:315. This case is at the 
moment under appeal under the number C-492/21 P - Casa Regina Apostolorum della Pia Società delle Figlie di 
San Paolo v Commission. 

113  National authorities. 
114  National authorities. 

35 

 
 
 
 
                                                           
Effect on trade 

With  the  SGEI  Communication,  the  Commission  clarified  its  understanding  of  Article 
107(1) TFEU as interpreted by the Union Courts and in particular the notion of effect on 
trade.  This  notion  is  particularly  relevant  as  if  there  is  no  effect  on  trade,  then  there  is 
also no State aid and the SGEI rules would not come into play.  

The Commission clarified that where markets have been opened up to competition either 
by  Union  or  by  national  legislation  or  de  facto  by  economic  development,  there  is  an 
effect  on trade and State aid  rules thus  apply.  It  clarified as well that aid  measures can 
also have an effect on trade where the recipient undertaking does not itself participate in 
cross-border activities. 

Finally, the Commission recalled in the SGEI Communication that according to the case 
law  of  the  Court  of  Justice,  there  is  no  threshold  or  percentage  below  which  trade 
between  Member  States  can  be  regarded  as  not  having  been  affected115.  The  relatively 
small  amount of aid  or the relatively small  size of the recipient  undertaking does not  a 
priori mean that trade between Member States may not be affected116. 

Regarding  this  last  point,  several  stakeholders  have  pointed  in  the  context  of  the 
evaluation  that  in  their  view,  there  is  a  very  low  risk  of  distortion  of  competition  and 
affectation of trade in the health and social services sector117: 

-  “We  take  a  very  positive  view  of  the  latest  decisions  and  resolutions  of  the 
Commission on investment measures in the health sector, in which it was stated 
that  trade  between  the  Member  States  was  not  affected.  This  includes  the 
following  State  aid  decisions:  SA.37432  Czech  Republic  -  Financing  of  public 
hospitals in the Hradec Králové region, SA.37904 Germany - Alleged State aid to 
a  medical  centre  in  Durmersheim,  SA.38035  Germany  -  Alleged  aid  to  a 
rehabilitation clinic specialising in orthopaedics and trauma surgery”118. 

-  “Against this background, we would welcome it if the Commission could update 
its  SGEI  Communication  from  2011  and  highlight  recent  decision-making 
practice. It should be pointed out here that in the health sector the promotion of 
investments  and  educational  measures  that  are  invested  in  the  national  health 
system  are  to  be  assessed  as  free  of  aid  as  they  do  not  meet  the  criteria  of 
affecting trade between the Member States.”119 

-  “[…]  There  is  limited  cross-border  competition  in  [the  health]  sector  and  the 
light touch approach is not unduly burdensome. Greater flexibility in the ability 
to make direct grants for purely local services would not distort the "market" as 

115  Judgment  of  the  Court  of  24  July  2003,  Altmark  Trans  GmbH  and  Regierungspräsidium  Magdeburg  v 
Nahverkehrsgesellschaft  Altmark  GmbH,  and  Oberbundesanwalt  beim  Bundesverwaltungsgericht,  C-280/00, 
EU:C:2003:415, paragraph 81. 

116  SGEI Communication, paragraph 39.  
117  Depending  on  the  sector,  15  (access  and  reintegration  into  the  labour  market)  to  25  (social  housing)  of  the 

respondents expressed the view that the risk of distortion of competition is still lower than in other sectors. 

118  The Committee of the Regions in its opinion adopted during its 119th plenary session on 10, 11 and 12 October 
2016 (ECON-VI/013), also refers to the following decisions where the Commission concluded on the absence of an 
effect  on 
trade:  Germany/Städtische  Projektgesellschaft  "Wirtschaftsbüro  Gaarden  -  Kiel"  (SA.33149), 
Netherlands/Investment aid for Lauwersoog port (SA.39403), United Kingdom/Glenmore Lodge (SA. 37963), and 
United Kingdom/Member-owned golf clubs (SA.38208).  

119  European association representing public financial  institutions. Almost identical comments  were received  from a 

similar association active at national level. 

36 

 
 
 
                                                           
these are not commercially driven, for profit activities but are intended to achieve 
public interest objectives.”120 

-  “As things stand, there remains too much emphasis on avoiding the distortion of 
competition rather than effective delivery of SGEI. One reason for this is the legal 
uncertainty over what can constitute a distortion of competition. For example, the 
"effect  on  trade  between  member  states"  is  often  given  as  a  restriction  without 
any  clear  indication  that  that  will  be  the  case,  and  even  if  the  recipient  is  not 
participating in cross-border trade at all.”121 

One respondent also makes a link with the SGEI de minimis Regulation. It indicates that 
authorities  often  require  a  “de  minimis  declaration”,  while  in  reality  this  might  not  be 
needed  as  the  funded  activity  does  not  have  an  effect  on  trade.  Such  a  de  minimis 
declaration also means that funding cannot exceed the EUR 500 000 cap122. 

The EESC in an opinion from 2022 shows that it is aware of the strict interpretation of 
the concept of no effect on trade; however, at the same time it explains that even when 
health  and  social  services  are  provided  in  a  market  context,  they  “have  an  essentially 
local dimension with no real demand-side cross-border relevance. The local dimension is 
even  more  evident  when  social  and  health  services  are  managed  by  social  economy 
entities with the involvement of local communities, with a view to social cohesion and in 
the public interest.”123 

There  are  also  stakeholders  who  indicated  that  the  SGEI  rules  acknowledge  the  local 
nature  of  health  and  social  services:  “[The  SGEI  rules  have]  provided  a  clearer 
framework for public investment in the field of health and social SGEIs. In fact this has 
considered the local, cross-border and community dimension of public services and their 
difference in the management system.”124 

Among  the  public  authorities  it  was  indicated  that  it  is  a  priori  difficult  to  exclude  an 
effect on trade for aid schemes and that  ex-post assessing for example the nature of the 
projects  and  the  aid  amounts  is  administratively  burdensome125.  Another  authority126 
explained that difficulties exist as regards healthcare at the regional level, in particular as 
regards  services  offered  only  in  municipal  districts.  As  regards  social  services,  this 
authority considers it difficult to establish no effect on trade in border regions. Moreover, 
it is of the opinion that the Commission does not consistently apply the criteria laid down 
in  the  Commission’s  notice  on  the  notion  of  aid127,  which  leads  to  insecurity.  Six 
authorities128  have  indicated  that  they  experience  no  or  only  few  difficulties  with 
establishing whether an effect on trade is present. 

In case of complaints, the  European Committee of the Regions takes the view that it is 
for  the  complainant  and/or  the  Commission  to  prove  that  there  is  actually  an  effect  on 

120  Association active in the health sector.  
121  Network of NGOs. 
122  Association of organisations active in the welfare sector. 
123  Footnote 106, point 3.6 and 3.7.  
124  Network of organization active in the reintegration of disadvantaged workers on the labor market. 
125  National Ministry. 
126  National authority. 
127  Footnote 10.  
128  Four national authorities and two regional authorities. 

37 

 
 
 
                                                           
trade  in  relation  to  the  measure  complained  about  and  not  for  the  Member  State 
concerned129. 

The  Commission  services  note  that  due  to  the  sectors  concerned  the  services  provided 
often have local dimension. However, the Commission services are of the view that it is a 
priori difficult to exclude an effect on trade for all health and social service. In addition, 
they  note  that  as  regard  this  condition,  the  Commission  is  bound  by  judgements  of  the 
Union Courts130. Indeed, the Union Courts have consistently considered that the relatively 
small  amount of aid  or the relatively small  size of the recipient  undertaking does not  a 
priori  mean  that  trade  between  Member  States  may  not  be  affected.  However,  the 
Commission  services  also  note  that  the  Commission  has  considered,  in  a  number  of 
decisions, in view of the specific circumstances of the cases, that measures could have a 
purely local impact and consequently no effect on trade between Member States. As  an 
example,  the  Commission  concluded  that  funding  of  hospitals  and  other  health  care 
facilities providing the usual  range of medical  services aimed at  a local  population  and 
unlikely  to  attract  customers  or  investment  from  other  Member  States  could  not  affect 
trade between Member States131. It should be stressed that in certain rare cases, despite its 
cross-border impact, a measure can be considered not to affect trade if the impact of the 
measure is limited to local areas132. Indeed, certain  activities have a purely local impact 
and consequently no effect on trade if (i) the beneficiary supplies goods or services to a 
limited  area  within  a  Member  State  and  is  unlikely  to  attract  customers  from  other 
Member States; (ii) it cannot be foreseen, with a sufficient degree of probability, that the 
measure  will  have  more  than  a  marginal  effect  on  the  conditions  of  cross-border 
investments or establishment. 

Market failure 

In the SGEI Communication, the Commission clarified the Member States’ discretion in 
defining an SGEI and the Commission’s check for manifest errors of assessment.  

In  particular,  the  SGEI  Communication  clarified  that  despite  Member  States  having  a 
wide  margin  of  discretion  in  defining  an  SGEI,  not  every  service  linked  to  health  or 
social services can be an SGEI. The SGEI Communication provides indeed that an SGEI 
entrusted  to  a  provider  needs  to  be  a  “particular  task”133  that,  if  the  provider  would 
consider  its  own  commercial  interests  it  would not  assume or would not  assume to  the 
same  extent  or  under  the  same  conditions134.  In  other  words,  the  SGEI  Communication 
provides that there is a need to have a market failure. This market failure is also relevant 

129  Committee of the Regions, Opinion - State aid and Services of General Economic Interest, 119th plenary session 

on 10, 11 and 12 October 2016 (ECON-VI/013), paragraph 15.  

130  For example, judgment of the Court of Justice of 14 January 2015, Eventech v The Parking Adjudicator, C-518/13, 

ECLI:EU:C:2015:9, paragraph 68.  

131  See, for instance, Commission Decisions in State aid cases N 543/2001 Ireland – Capital allowances for hospitals 
(OJ  C  154,  28.6.2002,  p.  4);  SA.34576  Portugal  –  Jean  Piaget  North-east  Continuing  Care  Unit  (OJ  C  73, 
13.3.2013, p. 1); SA.37432 – Czech Republic – Funding to public hospitals in the Hradec Králové Region (OJ C 
203,  19.6.2015,  p.  2);  SA.37904  –  Germany  –  Alleged  State  aid  to  medical  center  in  Durmersheim  (OJ  C  188, 
5.6.2015, p. 2); SA.38035 – Germany – Alleged aid to a specialised rehabilitation clinic for orthopaedic medicine 
and trauma surgery (OJ C 188, 5.6.2015, p. 3) 

132  See,  for  instance,  Commission  Decisions  in  State  aid  cases  N  257/2007  Subsidies  for  theatre  productions  in  the 
Basque country (OJ C 173, 26.7.2007, p. 1) where the considered that the measure does have an effect on trade, 
despite  the  fact  that  that  the  Basque  language  is  spoken  both  in  France  and  in  Spain.  Indeed,  the  Commission 
considered that the use of the Basque language is confined to a rather limited linguistic and geographical area.  

133  Article 106(2) TFEU.  
134  SGEI Communication, point 47.  

38 

 
 
 
                                                           
when  assessing  whether  State  aid  is  present  in  the  first  place,  namely  in  the  context  of 
assessing whether a measure confers an advantage upon the beneficiary135. 

A large number of  stakeholders considered that the clarification of the notion of market 
failure  facilitated  the  compliance  with  the  SGEI  rules  applicable  to  health  and  social 
services, at least partially136. 

However,  two  Member  States  considered  it  difficult  identifying  a  market  failure.137  It 
should be recalled that markets constantly change and therefore the presence or absence 
of a market failure can change over time. In addition, there could be a market failure for a 
service  in  one  Member  State  and  not  in  another  Member  State.  The  expert  study  has 
identified  two  market  trends  in  the  health  sector  that  can  affect  the  application  of  the 
2012 SGEI Package. For example, the liberalisation of the health sector (both healthcare 
provision  and  insurance)  and  the  introduction  of  a  health  insurance  risk  equalisation 
scheme138.  As  regards  the  differences  between  Member  States  it  should  be  noted  that 
while in Latvia 72 % of the hospitals were public in 2017, in the Netherlands there were 
no public hospitals and 75 % were private for profit (the remaining 25 % were private not 
for  profit)139.  Also  for  social  housing  the  approaches  differ  depending  on  the  Member 
State, leading to different treatment of the (social) housing sector under the SGEI rules in 
different Member States140. 

Conclusion 

Overall, the Commission services observe that the evaluation demonstrates that the SGEI 
Communication contributed to the clarification and the simplification of the SGEI rules. 
However, some stakeholders indicated that they  continue to experience difficulties with 
certain concepts. 

SGEI de minimis Regulation 

One  of  the  key  problems  identified  with  the  2005  SGEI  package  concerned  the 
excessively high administrative burden for small SGEIs. The rules contained in the 2005 
SGEI package were deemed too complex and not adapted for small SGEIs. Small SGEIs 
could  only  fall  outside  the  scope  of  State  aid  rules  if  the  compensation  did  not  exceed 
EUR 200 000 over any period of three fiscal years, which was the ceiling corresponding 
to the general de minimis Regulation.  

To address this issue, the Commission adopted in 2012 the SGEI de minimis Regulation. 
With  this  Regulation,  undertakings  providing  a  SGEI  can  receive  compensation  of 
maximum  EUR 500 000 over any period of three fiscal  years, without it be considered 
State aid as it is deemed not to affect trade between Member States and/or not to distort 
or threaten to distort competition.  

The evaluation  found that the revised ceiling  for the  de minimis  ceiling from  EUR 200 
000 to EUR 500 000 for SGEIs (with the new SGEI de minimis Regulation) is welcome 

135  Judgment of the General Court of 16 September 2013, Colt Télécommunications France v Commission, T-79/10, 

EU:T:2013:463, paragraph 154.  

136  To  the  question  in  the  public  consultation  « Did  the  factors  below  facilitate  the  compliance  with  the  SGEI  rules 
applicable  to  health  and  social  services?”  as  regard  market  failure:  28  respondents  agree  at  least  partially,  7 
disagree at least partially and 16 don’t know or have a neutral view. 

137  National authorities. 
138  Footnote 77, page 45.  
139  Footnote 77, page 48.  
140  Footnote 77Error! Bookmark not defined., page 64-66.  

39 

 
 
 
                                                           
as  one  of  the  greatest  improvements  of  the  2012  SGEI  Package141.  The  most  notable 
simplification  compared  to  the  baseline  scenario  is  that,  with  the  introduction  of  the 
SGEI de minimis Regulation, Member States have the possibility to grant up to EUR 500 
000 per three fiscal years, instead of EUR 200 000 before (under the general de minimis 
Regulation of 2006 in force at the time142). Indeed, the Commission considered that some 
of  the  advantages  granted  to  beneficiaries  providing  SGEIs  are  likely  to  constitute 
compensation  for  additional  costs  linked  to  the  provision  of  SGEIs.  Moreover,  it 
considered  that  many  activities  qualifying  as  the  provision  of  SGEIs  have  a  limited 
territorial scope. 

The  adoption  of  the  SGEI  de  minimis  Regulation  therefore  clarified  and  simplified 
significantly  the  granting  of  SGEIs  for  providers  which  receive  public  service 
compensations  between  EUR  200  000  and  EUR  500  000.  In  addition,  it  reduced  the 
administrative  burden  for  Member  States  as  they  no  longer  need  to  check  compliance 
with the Altmark criteria or fulfil the conditions of the SGEI Decision.  

However, certain stakeholders consider that there is a need to clarify the de minimis rules 
further.  It  appears  that  certain  concepts  introduced  in  the  modified  general  de  minimis 
Regulation of 2013 differ from the SGEI de minimis Regulation. The comments received 
both  in  the  context  of  the  present  evaluation,  but  also  in  the  context  of  the  two 
prolongations of the SGEI de minimis Regulation in 2018 and 2020, refer mainly to those 
differences.  These  differences  relate  in  particular  to  the  concepts  of  undertakings  in 
difficulty,  mergers  and  acquisitions  and  the  concept  of  “any  one  undertaking”  (see 
section 4.1.3). 

In addition, certain stakeholders consider that the ceiling of EUR 500 000 is not adapted 
to  the  current  financing  needs  required  for  the  operation  of  an  SGEI.  Indeed,  the  de 
minimis ceiling  appears  to  be  easily  reached,  with  the  average amount of State support 
increasing on average since 2012.  

33 of 67 respondents to the public and targeted consultations expressed a wish to increase 
the threshold (e.g. to EUR 500 000 per social services, EUR 750 000, EUR 800 000, or 
even  EUR  1  million).  This  was  confirmed  during  interviews  carried  out  in  light  of  the 
external study commissioned by the Commission. 

In  2016,  the  European  Committee  of  the  Regions  also  called  for  an  increase  to  EUR 1 
million  due  to  the  often  local  context  of  SGEIs  and  because  of  this  the  lack  of  cross-
border  distortion  of  trade  or  competition  that  would  harm  the  internal  market143.  The 
European Committee of the Regions repeated its request for an increase in 2021, without 
however mentioning a desired ceiling144. 

Also,  the  EESC,  in  its  recent  own-initiative  opinion  considered  the  ceiling  too  low  for 
health and social services145. 

As  part  of  the  result  of  the  public  consultation,  only  one  stakeholder  considered  the 
threshold as being too high and three considered the ceiling to be appropriate (4.5 % of 
the respondents). 

141  This result from the public consultation, the targeted consultation and the expert study. 
142  Commission Regulation (EU) No 1407/2013 of 18 December 2013 on the application of Articles 107 and 108 of 

the Treaty on the Functioning of the European Union to de minimis aid (OJ 24.12.2013 L 352). 

143  European Committee of the Regions opinion, 119th plenary 10-12 October 2016, ECON-VI/013, para 38. 
144  European Committee of the Regions opinion, 147th plenary 1-2 December 2021, ECON-VII/015, para 52.  
145  Footnote 98, point 4.8.  

40 

 
 
 
                                                           
The  rest  of  the  respondents  (44%)  don’t  know  whether  the  current  threshold  is 
appropriate, have a neutral view, have not apply the SGEI de minimis or have not replied 
to the question. 

Conclusion 

Based  on  the  above,  it  appears  that  overall  the  change  to  the  SGEI  rules  introduced  in 
2012 (i.e. the 2012 SGEI Package) facilitated the provision of health and social SGEIs. 
As an example, a majority of the stakeholders consider that the introduction of the SGEI 
de minimis Regulation did simplify the SGEI rules by allowing Member States to grant 
up to EUR 500 000 as de minimis aid compensation (compared to EUR 200 000 before 
the  introduction  of  the  SGEI  Package),  even  if  they  consider  that  the  ceiling  could  be 
further increased.  

However,  it  also  demonstrates  a  call  for  further  clarification  of  certain  concepts,  either 
related to the notion of State aid (i.e. economic/non-economic activity, effect on trade) or 
concepts  used  in  the  SGEI  rules  (e.g.  reasonable  profit,  market  failure,  etc.).  The 
concepts  were  partly  already  included  in  the  2005  SGEI  rules.  It  can  therefore  be 
concluded  that  despite  the  review  of  the  SGEI  Decision  and  the  SGEI  Framework  in 
2011, the introduction of the SGEI Communication and the SGEI de minimis Regulation 
in  2012 and the publication  of the SGEI frequently asked questions document in  2013, 
more  clarity  is  still  needed.  Certain  concepts,  such  as  social  housing,  do  not  appear  as 
such  unclear  but  are  considered  as  an  obstacle  in  providing  the  SGEI  adapted  to  the 
population’s need.  

4.1.2.  Efficiency 

This  section  evaluates  the  efficiency  of  the  rules  applicable  to  health  and  social  SGEIs 
and will focus mainly on the SGEI Decision, which is the act under which State aid for 
health and social services are usually assessed. The aim is to evaluate what the costs and 
benefits associated with the application of the requirements set by the rules for health and 
social  SGEIs  are.  As  part  of  this,  the  present  section  assesses  whether  the  2012  SGEI 
Package prevented competition distortions on the internal market and whether it clarified 
and simplified the rules to ensure that the administrative burden for public authorities is 
not disproportionate.  

Findings of the analysis 

The  analysis  on  efficiency  is  subject  to  the  limitations  stemming  from  the  stakeholder 
consultation. 

The lack of quantifiable costs and savings data has hampered analysis of the costs of the 
measures  evaluated.  Annual  costs  incurred  by  the  national  administrations  are  often 
difficult  to  estimate  precisely146.  No  stakeholder  or  known  studies  have  been  able  to 
provide an estimation. Indications of the administrative burden were all qualitative. 

Out  of  the  51  respondents  of  the  public  consultation,  33  respondents  did  not  have  an 
opinion on whether the amount of resources (for example money and personnel) spent on 
administrative activities with regard to health and social services changed, compared to 

146  Similar to the conclusions in the Commission Staff Working Document on the fitness check, SWD(2020) 257 final 

of 30 October 2020, page 101.  

41 

 
 
 
                                                           
 
  
the  period  2005-2012  when  the  2005  SGEI  package  was  still  in  force.  However,  10 
respondents  have  indicated  that  the  resources  spent  on  administrative  activities  have 
slightly increased or strongly increased, 1 that they have decreased and 7 that it remained 
unchanged compare to the period 2005-2012 (see figure 13 below). 

Figure 13 – To what extent did the amount of resources (for example money and personnel) 
you spent on administrative activities with regard to health and social services change, 
compared to the period 2005-2012 when the 2005 SGEI package was still in force? 

As an example of the additional costs, one Member State indicated that the SGEI rules 
prompted  the  relevant  department  to  recruit  more  specialised  staff,  participate  in 
specialised  seminars  and  train  executives  of  managing  authorities.  Other  stakeholders 
indicated that sometimes (expensive) external advice had to be hired.  

As regard the administrative burden, out of the 51 respondents of the public consultation, 
34 had no opinion on whether it has been reduced for public authorities or beneficiaries 
compared to the rules in force under the 2005 SGEI package, 12 respondents agreed, at 
least partially, that the 2012 SGEI package reduced the administrative burden with regard 
to health and social services and 20 disagreed at least partially (see figure 14 below). 

Figure 14 – Question 29: Did the 2012 SGEI package reduce the administrative burden 
with regard to health and social services compared to the rules in force under the 2005 
package? 

As  examples  of  the  administrative  burden  for  public  authorities,  the  biennial  reporting 
exercise was considered by one stakeholder as too burdensome (instead of every 2 years, 
this  stakeholder  considered  a  reporting  exercise  every  5  years  to  be  more  appropriate). 
Several  stakeholders  based  in  Germany  referred  to  the  apparent  request  from  German 
authorities to provide a “de minimis declaration” in which the beneficiary confirms that 
the funding need will be limited to EUR 500 000 per three fiscal years so as to avoid the, 
in  their  view,  more  complicated  and  burdensome  requirements  associated  with  an 
entrustment under the SGEI Decision.  

42 

 
 
 
 
 
Some stakeholders have however indicated that compared to the 2005 SGEI Package, the 
administrative burden both for public authorities and beneficiaries  has decreased due to 
the  notification  exemption  for  health  and  social  services147,  irrespective  of  the 
compensation amount and due to the adoption of the SGEI  de minimis Regulation. The 
enlargement of the scope of the notification exemption and the adoption of the SGEI de 
minimis Regulation have therefore, in their view, significantly simplified the rules.  

The  expert  study  confirmed  the  above.  It  shows  that  the  2012  SGEI  Package  has  to  a 
certain extent helped to reduce costs especially due to the notification exemption and the 
introduction  of  the  SGEI  de  minimis  ceiling.  However,  a  meaningful  reduction  of  the 
administrative costs for public authorities has not been perceived, particularly due to the 
complexity  of  certain  terms  such  as  the  definition  of  social  housing  and  the  distinction 
between an economic and non-economic activity. Therefore, the expert study concludes 
that  the  time  saved  by  the  simplification  and  facilitation  brought  by  the  2012  SGEI 
Package have not necessary led to a striking reduction in the administrative costs148.  

Conclusion  

The  stakeholders  perceive  the  introduction  of  the  SGEI  de  minimis  Regulation  and  the 
notification  exemption  for  health  and  social  services  under  the  SGEI  Decision 
(irrespective  of  the  amount)  as  positive  aspects  of  the  2012  SGEI  Package,  which 
simplified the application of the rules.  

However,  it  appears  that  despite  the  positive  elements,  the  administrative  burden  for 
public  authorities  and  the  amount  of  resources  spent  on  administrative  activities  with 
regard to health and social services appear not to have necessarily decreased compared to 
the  period  2005-2012,  when  the  2005  SGEI  package  was  in  force.  While  none  of  the 
respondents to the consultations provided precise costs and benefits associated with the 
application of the rules for health and social SGEIs, the evaluation suggests that the costs 
associated  with  the  application  of  the  requirements  set  by  the  SGEI  rules  and  the 
administrative burden  for public authorities  could  be further reduced, in  particular with 
regard  to  the  monitoring  of  the  SGEI  de  minimis  Regulation  and  transparency 
requirements.  

4.1.3.  Coherence 

In order to assess the coherence of the 2012 SGEI Package, the questions asked aimed at 
understanding notably whether the SGEI rules were externally (i.e. with other EU rules) 
and internally (within the 2012 SGEI Package) coherent.  

147  To  the  question  in  the  public  consultation  “Did  the  2012  SGEI  package  reduce  the  administrative  burden  with 
regard  to  health  and  social  services  compared  to  the  rules  in  force  under  the  2005  package?”,  6  respondents 
agreed, at least partially, as regards the administrative burden for public authorities and 6 respondents agreed, at 
least partially, as regards the administrative burden for public authorities. 

148 The expert study stresses that the majority of respondents (8 respondents out of the 15) to the targeted consultation 
launched by DG Competition indicated that the new level of administrative burden is rather stable in comparison to 
the situation existing with the previous package. 

43 

 
 
 
 
 
                                                           
Findings of the analysis 

This  section  aims  at  answering  to  the  following  questions  (i):  How  well  do  the  2012 
State aid rules for health and social SGEIs correspond to the wider EU policy applicable 
to health and social SGEIs  - such as Articles 14 and 168 TFEU and Protocol 26 to the 
TFEU – and to other State aid instruments? and (ii) How do the 2012 State aid rules for 
health  and  social  SGEIs  compare  to,  complement  and  interact  with  other  State  aid 
instruments?  This  section  also  aims  at  answering  the  query  of  whether  (iii)  the  2012 
SGEI  Package  as  applicable  to  health  and  social  SGEIs  is  internally  consistent  and 
coherent, and whether there are any overlaps, contradictions or missing links between the 
Decision,  the  Framework  and  the  Communication,  which  would  run  counter  to  the 
objective of simplification and clarification of the 2012 SGEI Package. 

Respondents were asked whether the SGEI rules, insofar as they are applicable to health 
and  social  services,  are  coherent  with  each  other.  Approximately  35%  of  respondents 
said  they  are  (fully  or  partly)  coherent,  20%  replied  that  they  are  (fully  or  partly) 
incoherent, 20% were neutral and 25% did not know (see figure 17).  

Figure 17 – Are the SGEI rules (the SGEI Decision, SGEI Framework, SGEI 
Communication, SGEI de minimis Regulation) insofar as they are applicable to health and 
social services coherent with each other? 

Coherence with State aid rules 

Although  there  appears  to  be  a  general  consensus  on  the  existence  of  coherence,  some 
submissions  pointed  out  to  some  potential  differences  with  other  State  aid  rules  and 
provided  suggestions  for  changes  to  clarify  the  articulation  between  the  2012  SGEI 
Package and other EU rules.  

On  the  coherence  of  SGEI  rules  with  new  EU  legislation  /  initiatives,  authorities 
explained  that  services  to  ensure  access  to  and  reintegration  into  the  labour  market  are 
covered both by the SGEI Decision and GBER, where different conditions are attached 
to  funding  such  services.  Others  proposed  that,  in  order  to  improve  the  2012  SGEI 
Package it would be good to consider how the interaction of the Package with other rules 
could  be  optimized,  for  example  how  the  SGEI  rules  regarding  the  health  sector  are 
coherent  with  several  categories  in  the  GBER,  in  particular  the  RDI  (Research 
developpement and innovation) rules.  

44 

 
 
 
 
In addition,  it appears that there are certain  misalignments  between the general  and the 
SGEI-specific  de  minimis  Regulations.  Misalignments  could  also  be  observed  with  the 
SGEI Decision. 

Concept of any one undertaking 

In  the  SGEI  de  minimis  Regulation,  the  EUR  500  000  ceiling  per  three  fiscal  years 
applies  to  “any  one  undertaking”  as  opposed  to  “single  undertaking”  in  the  general  de 
minimis  Regulation.  The  Commission  services  note  that  the  concept  of  “any  one 
undertaking”  under  the  SGEI  de  minimis  Regulation  could  be  interpreted  in  a  more 
lenient  way  than  the  concept  of  “single  undertaking”  under  the  general  de  minimis 
Regulation,  which  is  strictly  defined  in  its  Article  2(2).  As  part  of  the  Advisory 
Committees  held  in  the  context  of  the  two  prolongations  of  the  SGEI  de  minimis 
Regulation,  certain  Member  States  suggested  to  include  the  concept  of  “single 
undertaking” also in the SGEI de minimis Regulation149.  

Concept of undertakings in difficulty 

Two public authorities and one stakeholder in the field of healthcare explained that the 
SGEI  de  minimis  Regulation  excludes  undertakings  in  difficulty  and  should  be 
harmonised with general de minimis Regulation, which does not exclude undertakings in 
difficulty, but also the SGEI Decision where no reference to undertakings in difficulty is 
made.  

In the context of the two prolongations in 2018 and 2020, 13 Member States considered 
that the exclusion of undertakings in difficulty in the SGEI de minimis Regulation posed 
implementation problems150. Those considerations should be seen in light of the general 
de  minimis  Regulation,  which  does  not  contain  such  an  exclusion151.  The  Commission 
had  already  temporarily  removed  the  exclusion  of  undertakings  in  difficulty  from  the 
SGEI  de  minimis  Regulation  in  the  context  of  the  COVID  pandemic152.  This  exclusion 
expired  on  30  June  2021  and  was  not  prolonged;  hence,  undertakings  in  difficulty  are 
currently excluded from SGEI de minimis compensation.  

Inclusion of provisions on mergers and acquisitions 

Two Member States153 have noted a different treatment of mergers and acquisitions when 
granting  de  minimis  aid  depending  on  the  applicable  de  minimis  Regulation.  In  this 
respect,  Article  3(8)  of  the  general  de  minimis  Regulation  states  that  “In  the  case  of 
mergers  or  acquisitions,  all  prior  de  minimis  aid  granted  to  any  of  the  merging 
undertakings shall be taken into account in determining whether any new de minimis aid 
to  the  new  or  the  acquiring  undertaking  exceeds  the  relevant  ceiling.  De  minimis  aid 
lawfully granted before the merger or acquisition shall remain lawful.” Those Member 
States consider that a similar provision should also be included in the SGEI de minimis 
Regulation.  

 Entrustment act 

149  11 Member States.  
150  13 Member States. 
151  See  also:  Sinnaeve,  Adinda,  The  Complexity  of  Simplification:  The  Commission’s  review  of  the  de  minimis 

Regulation, EStAL 2, 2014, p. 275.  

152  Commission Regulation (EU) 2020/1474 of 13 October 2020 amending Regulation (EU) No 360/2012 as regards 
the prolongation of its period of application and a time-bound derogation for undertakings in difficulty to take into 
account the impact of the COVID-19 pandemic (OJ L 337, 14.10.2020, p.1).  

153  Two Member States. 

45 

 
 
 
                                                           
One  respondent  explained  that  the  entrustment  requirement  under  the  SGEI  Decision 
could  be  confused  with  the  entrustment  required  by  the  SGEI  de  minimis  Regulation. 
Apparently, often  stakeholders do not  realise that  also  for SGEI  de minimis  Regulation 
some form of entrustment is needed.  

Coherence with other EU rules 

A  respondent  pointed  out  that  the  SGEI  rules  are  internally  coherent,  but  should  be 
aligned with the Services Directive154 and the Public procurement Directive155, and with 
the case law of the Court of Justice156.  

Two stakeholders believe that the SGEI rules are not coherent with Protocol 26, Article 
14 of the TFEU (see Annex 7), the Charter of Fundamental Rights and the EU Pillar of 
Social  Rights,  which,  in  their  view,  provide  the  relevant  frameworks  for  EU  policies 
relating to public services, including EU State aid rules for SGEI.  

Finally, respondents  also expressed themselves with regard to  coherence  of SGEI  rules 
with  the  Treaties  and  EU  sectoral  legislation  (Article  3  of  the  SGEI  Decision).  One 
national health ministry put forward that in order to ensure that projects comply with the 
relevant  conditions,  the  public  administration  spends  huge  administrative  resources  on 
setting  up  an  SGEI  compensation  scheme  and  the  beneficiaries  equally  spend  a  lot  of 
resources on ensuring implementation and follow-up of the SGEI projects.  

Conclusion  

Based on the above, it appears that overall the SGEI rules are coherent within the 2012 
SGEI  package;  however,  there  is  a  need  to  clarify/simplify  further  the  rules  to  ensure 
stronger coherence between the general and the SGEI de minimis Regulations as regards 
the notion of  “single undertaking”, the  provisions  on mergers  and acquisitions, and the 
application  of  the  de  minimis  rules  to  undertakings  in  difficulty,  which  should  be 
addressed to simplify further the enforcement of both Regulations. In addition, there is a 
call  for  better  coherence  between  the  SGEI  rules  and  Protocol  26  annexed  to  the  TEU 
and TFEU on services of general interest; Article 14 TFEU; the Charter of Fundamental 
Rights; and the European Pillar of Social Rights, to ensure clarity within EU rules and to 
simplify their enforcement.  

4.2.  How did the EU intervention make a difference? 

This question seeks to assess whether the 2012 SGEI Package allowed for a better task 
allocation between the Commission and Member States and whether the rules helped in 
ensuring legal certainty. 

4.2.1.  Findings of the evaluation 

Respondents were asked whether the 2012 SGEI Package allowed for a better allocation 
of  tasks  between  the  Commission  and  the  Member  States;  while  21.6 %  did  not  know 
and  15.7 %  had  a  neutral  view,  the  remaining  replies  were  equally  divided  between 

154  Directive  2006/123/EC  of  the  European  Parliament  and  of  the  Council  of  12  December  2006  on  services  in  the 

internal market (OJ L 376, 27.12.2006, p. 36). 

155 Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement 

(OJ L 94, 28.3.2014, p. 65). 

156 This respondent attaches particular importance to the judgement of the Court of Justice of 8 September 2011, Paint 

Graphos e.a , Joined Cases C-78/08 to C-80/08, EU:C:2011:550. 

46 

 
 
 
                                                           
opposite  views  with  33.3 %  (partially  or  fully)  agreeing  and  29.4%  (partially  or  fully) 
disagreeing (see figure 18).  

Figure 18 – Has the 2012 SGEI Package allowed for a better allocation of tasks between the 
Commission and Member States? 

Some respondents are under the impression that Member States cannot define themselves 
what  a  public  need  is  and  that  the  Commission  should  take  into  account  the  specific 
characteristics  of  every  Member  State.  In  the  same  vein,  an  association  expressed  the 
view  that  the  inclusion  of  additional  quality  and  efficiency  considerations  is  not 
something for the Commission to decide, but rather something that must be left to local 
authorities.  Another  stakeholder  in  the  field  of  social  housing  considers  that  the  same 
applies  to  housing  and  that  policies  in  this  area  should  be  left  to  Member  States.  This 
stakeholder  also  considers  the  current  definition  of  social  housing  in  the  2012  SGEI 
Decision questionable from a subsidiarity and proportionality perspective in the context 
of the wide margin in which Member States and local authorities have to organise their 
SGEIs.  

Other voices also expressed the view that the funding and provision of health and social 
services to the (vulnerable part of the) population at affordable conditions should be left 
to Member States alone and not be subject to State aid rules. 

In the targeted consultation, the public authorities that replied generally consider that the 
2012 SGEI Package brought about a better division of tasks, but they would at the same 
time welcome more methodological guidance. In addition, remarks were made as to the 
lack of reflection in the SGEI rules of the different kinds of subsidised housing, which at 
times could lead to different approaches to the management of social housing across the 
different Member States. 

A  national  health  ministry  and  a  ministry  in  charge  of  education  explained  that  the 
distinction  between  SGEIs  and  other  services  is  a  complex  process  and  that  limited 
guidance on making this distinction is available.  

A national authority explained that the reporting obligation laid down in Article 9 of the 
SGEI  Decision  is  very  burdensome  and  should  be  relaxed  or  simplified.  The  same 
authority considers social housing a purely national competence and not at all an EU one. 
Another national authority explains that different kinds of subsidised housing exist in all 
Member States, and that this should be reflected in the 2012 SGEI Decision.  

47 

 
 
 
 
 
The expert study explains that according to the stakeholders, the competencies of  those 
responsible  to  define  social  housing  should  be  clarified.  Currently,  the  EU  is  not 
competent  for  social  housing  as  such,  though  it  is  competent  for  controlling  State  aid 
provided  to  social  housing.  In  the  framework  of  State  aid  control,  the  SGEI  Decision 
provides  a  definition  of  social  housing  at  EU  level  which  Member  States  must  comply 
with in order to benefit from the notification exemption. 

In addition, the expert study explains that certain public authorities and EU associations 
questioned  the  perimeter  of  the  social  housing  target  group  from  a  subsidiarity 
perspective.  According  to  those  authorities  and  associations,  the  provision  of  social 
housing is a Member State competence; hence, the EU, which is not competent for social 
housing,  should  not  interfere  with  Member  States’  social  housing  policies.  The  expert 
study also notes that public authorities are more aware of their national contexts than the 
Commission  is.  In  this  light,  it  followed  from  interviews  with  public  authorities  that  it 
should therefore be up to national and local authorities to determine which categories of 
the  population  should  be  eligible  for  social  housing  and  under  what  circumstances.  In 
addition, the need to safeguard competition in the social housing market is minimal since 
the risk of distortion of competition in the internal market is low. Hence, there would be 
no need for the Commission to intervene and define a target group for social housing. 

The expert study highlights though that other stakeholders advocate the contrary by being 
in  favour  of  a  more  detailed  target  group  and  clearer  delineation  of  the  competencies 
between  Member  States  and  the  Commission157.  In  other  words,  they  question  the 
discretion that Member States have in framing social housing at national level and target 
groups  without  a  Commission  intervention.  They  thus  advocate  for  a  clearer  social 
housing definition at EU level, leaving less discretion to Member States. 

In  addition,  the  2012  SGEI  Package  also  led  to  the  clarification  of  the  rules  on  the 
provision  of State aid  to  ensure that the trajectory  of State  aid  expenditure is  clearer  at 
national level. The added value of the 2012 SGEI Package lies in ensuring that the rules 
on State aid are maintained. However, this added value varies according to the national 
context and the way in which Member States consider healthcare and/or social housing as 
services of general economic interest. 

According  to  the  expert  study,  the  2012  SGEI  Package  is  a  continuation  of  the  2005 
SGEI  Package,  with  certain  adaptations.  Several  stakeholders  considered  that  this 
continuity has improved legal certainty and has provided a stable legal environment for 
Member  States,  SGEI  providers  and  other  stakeholders.  This  legal  certainty  has  been 
developed  with  stakeholders  maturing  their  knowledge  since  the  2005  SGEI  Package. 
Certain  stakeholders158 from  Member States that do not  consider hospitals and/or social 
housing as an SGEI underlined that considering these sectors as a SGEI in their Member 
State would be welcomed since it would (i) pave the way for a clearer set of rules and (ii) 
facilitate  the  provisions  of  State  aid.  Again,  this  point  echoes  the  view  of  certain 
stakeholders for which the 2012 SGEI Package contributes to the establishment of legal 
certainty  to  the  environment  in  which  hospital and/or  social  housing  providers  operate. 
This  legal  certainty  and  transparency  are  essential  for  providers  to  gain  access  to 
predictable sources of financing.  

As  explained  in  the  same  expert  study,  when  considering  the  added  value  of  the  2012 
SGEI  Package,  it  is  necessary  to  consider  the  situation  should  the  Package  not  be  in 

157  Several EU and national association active in the social housing sector and few public authorities. 
158  National stakeholders consulted in the course of the external study. 

48 

 
 
 
                                                           
place. Under such circumstances, the legal framework would be general EU competition 
law and Member States would have to notify all State aid provided which would lead to a 
greater  administrative  and  financial  burden  for  all  parties  involved.  Moreover,  in  the 
absence of the 2012 SGEI Package, a lack of clarity would exist, with a lack of guidance 
in  place  on  key  concepts  and  methods  such  as  the  estimation  of  net  cost  and  the 
avoidance  of  overcompensation.  The  guidance  provided  in  conjunction  with  the  2012 
SGEI  Package  was  identified  by  stakeholders  consulted  through  the  study  as  of 
considerable  added  value,  including  the  Commission’s  guide  to  the  application  of  EU 
rules on State aid through frequently asked questions. 

4.2.2.  Conclusion 

Respondents broadly agree that the 2012 SGEI Package brought a better division of tasks 
between  Member  States  and  the  Commission,  but  more  methodological  guidance  from 
the  Commission  would  be  welcomed.  In  addition,  certain  stakeholders  consider  that 
Member  States  should  be  able  to  define  themselves  what  public  need  means  in  the 
national  context  and  that  the  Commission  should  take  into  account  the  specific 
characteristics of each Member State. 

As regards the legal certainty ensured by the 2012 SGEI Package, many respondents to 
the  expert  study  consider  that  the  2012  SGEI  Package  did  manage  to  provide  a  stable 
legal  environment  for  Member  States,  SGEI  providers  and  other  stakeholders  and  has 
provided an added value in this sense.  

4.3. 

Is the EU intervention still relevant? 

This  section  assesses whether the objectives  of the SGEI  rules  applicable to  health  and 
social  services  still  correspond  to  the  needs  within  the  EU.  In  a  first  step,  it  examines 
whether the SGEI rules  are  adapted to  the developments of society, markets  and social 
policy.  In  other  words,  whether  the  distortion  of  competition  with  regard  to  health  and 
social SGEIs is (still) less compared to other sectors. In a second step, it examines how 
well the rules are understood by Member States.  

4.3.1.  Findings of the analysis 

The  analysis  on  relevance  is  subject  to  the  limitations  stemming  from  the  stakeholder 
consultation. 

As indicated in Section 1.4, the public consultation as well as the targeted consultations 
took  place  before  the  COVID-19  crisis  and  the  Russian  war  of  aggression  against 
Ukraine. Hence, possible misalignments with new general policy goals were perhaps not 
fully visible to stakeholders. 

31 out of 51stakeholders consider that the SGEI objectives for health and social services 
correspond at least to some extent to today’s (EU internal) market situation and are thus 
relevant.  

49 

 
 
 
 
 
 
 
Figure 15 – How well do the objectives of the 2012 SGEI Package as applied to health and 
social services still correspond to today’s (EU internal) market situation? 

7  respondents  to  the  public  consultation  stated  that  the  SGEI  objectives  for  health  and 
social services do not at all correspond to the current EU priorities.  

While many respondents consider the SGEI rules to be relevant, only a limited number of 
respondents elaborated on their answer, referring to specific parts of the SGEI rules that 
they do not consider to be relevant.  

It  follows from figure 16 that the highest percentage for the parts of the SGEI rules no 
longer  to  be  considered  relevant  are  the  obligation  to  avoid  overcompensation  and,  in 
case of overcompensation, to recover it (both 6 out of 51 or 11.8 %). However, 16 out of 
51 respondants do consider those two parts relevant to a large or some extent. 

50 

 
 
 
 
Figure 16 – To what extent does each separate element of the 2012 SGEI Decision 
correspond to the (EU internal) market developments in the field of health and social 
services that have occurred since 2012? In other words, do these elements still serve a 
purpose? (in number of respondents) 

In  the  (qualitative)  comments  in  response  to  the  questions  in  the  public  consultation 
related  to  relevance,  a  respondent  advocated  for  the  specific  recognition  in  the  SGEI 
rules  of  operators  active  in  the  so-called  “social  economy”  (i.e.  where  profits  can  be 
made  but  they  will  not  be  distributed  to  shareholders)159.  In  the  respondent’s  view,  this 
would  make  the  SGEI  rules  even  more  relevant.  This  is  in  line  with  the  call  from  the 
EESC160  and  other  organisations161  to  recognise  the  special  position  of  social  economy 
enterprises. 

Another comment was that the SGEI rules should aim at ensuring quality public services 
for all citizens and not just for the most vulnerable ones and that ensuring quality services 
should take precedence over internal market and competition rules162. 

The external study concludes as well that certain provisions of the SGEI rules could be 
further  adapted to  respond to  evolving needs at  national  level, namely the definition of 
social housing, the SGEI de minimis ceiling and certain provisions related to healthcare. 

159  Two organisations active in mutual insurance.  
160  See footnote 98, paragraph 4.7, 4.9 and 4.11.  
161  For example: Social Economy Europe, White Paper  – Social Economy... Taking back the initiative, Proposals to 
at: 

make 
(2015), 
https://www.socialeconomy.eu.org/wp-content/uploads/2020/02/White-Paper-SEE.pdf, page 20.  

the  European  Union 

economy 

available 

social 

pillar 

into 

the 

of 

a 

162  Association of organisations active in the welfare sector. 

51 

 
 
 
 
                                                           
4.3.2.  Conclusion  

Based  on  the  above,  it  appears  that  the  objectives  of  the  2012  SGEI  package  are,  to  a 
large extent, appropriate for meeting the needs within the EU as regards health and social 
services. However, the potential impact and the uncertainties brought by the COVID-19 
crisis and the Russian war of aggression against Ukraine cannot be fully evaluated yet.  

The analysis suggests that further adaptation may be considered to fully meet the needs 
of  statkholders  such  as  the  recognition  in  the  SGEI  rules  of  operators  active  in  the  so-
called “social economy” or the recognition of quality services. 

5.  WHAT ARE THE CONCLUSIONS AND LESSONS LEARNED? 

5.1.  Conclusions 

The  present  evaluation  aims  at  assessing  the  State  subsidy  rules  for  health  and  social 
services of general economic interest as well as the SGEI de minimis Regulation..  

The findings of the analysis are subject to the limitations stemming from the stakeholder 
consultation. The results of the evaluation also need to be interpreted in the light of the 
COVID-19  crisis  and  the  Russian  war  against  Ukraine  because  future  policy-making 
cannot disregard the imbalances created in the Member States’ economies due  to them. 
The fact-finding and assessment were done before the COVID-19 pandemic and before 
the Russian war against Ukraine.  

The evaluation suggests that the 2012 SGEI Package is effective regarding the objective 
of clarification and simplification. Indeed, the 2012 SGEI Package did simplify the 2005 
SGEI  package  with,  for  instance,  the  introduction  of  an  SGEI-specific  de  minimis 
Regulation.  It  also  clarified  certain  basic  concepts  relevant  for  the  application  of  the 
SGEI rules. However, the evaluation indicates that there is still room for improvement, in 
particular to clarify certain concepts such as economic/non-economic activity, effect on 
trade, reasonable profit, market failure and social housing. Moreover, from the evaluation 
it appears that there could be a need to increase the SGEI de minimis ceiling and to align 
the SGEI de minimis Regulation with the general de minimis Regulation.  

With regard to efficiency, the evaluation suggests that the SGEI de minimis Regulation 
and the modification of the SGEI Decision have had a positive impact on the reduction of 
the administrative burden of public authorities. However, there still seems to be room for 
improvement to decrease this burden, in particular with regard to the monitoring  of the 
SGEI  de  minimis  Regulation  and  transparency  requirements.  The  evaluation  also 
suggests  that  costs  associated  with  the  application  of  the  requirements  set  by  the  SGEI 
rules should be reduced. 

With regard to coherence, the evaluation suggests that the State aid rules that make up 
the 2012 SGEI Package  are internally coherent.  It appears however that there is  a need 
for stronger coherence between the 2012 SGEI  Package and Protocol 26 on services of 
general  interest  annexed  to  the  TEU  and  TFEU,  Article  14  TFEU,  the  Charter  of 
Fundamental Rights and the European Pillar of Social Rights. In addition, there appear to 
be  certain  misalignments  between  the  general  and  the  SGEI-specific  de  minimis 
Regulations as regards the notion of “single undertaking”, the provisions on mergers and 
acquisitions, and the application of the de minimis rules to undertakings in difficulty. 

Overall, the existence of the SGEI rules subject to the evaluation has an EU added value 
that is acknowledged by stakeholders. Indeed, there appears to be a broad agreement that 

52 

 
 
 
the  2012  SGEI  Package  brought  a  better  division  of  tasks  between  Member  States  and 
the  Commission,  although  more  methodological  guidance  from  the  Commission  would 
be welcomed. Also, there is consensus that that the 2012 SGEI Package did manage to 
provide a stable legal environment for Member States. 

As to the relevance of the rules, the evaluation indicated that the objectives of the 2012 
SGEI  Package  are,  to  a  large  extent,  appropriate  to  meet  the  needs  within  the  EU. 
However, the potential impact and the uncertainties brought by the COVID-19 crisis and 
the  Russian  war  of  aggression  against  Ukraine  cannot  be  fully  evaluated  yet.  The 
evaluation  also  suggests  that  further  adaptations  may  be  considered  to  fully  meet  the 
needs of stakeholders such as the recognition in the SGEI rules of operators active in the 
so-called “social economy” or the recognition of quality services. 

5.2.  Lessons learned 

The  evaluation  indicates  that  the  2012  SGEI  Package  as  regards  health  and  social 
services is broadly fit for purpose.  It  therefore appears to the Commission services that 
the 2012 SGEI Package (as regards health and social services) was largely successful in 
achieving two of its main objectives, as it significantly clarified and simplified the rules 
applicable to SGEI providers which had a positive impact on citizens, undertakings, and 
public administrations.  

However,  it  also  results  from  the  evaluation  a  call  for  further  clarification  of  certain 
concepts,  either related to the notion of State aid (i.e. economic/non-economic activity, 
effect on trade) or concepts linked the SGEI rules (e.g. reasonable profit, market failure, 
etc.). The review of certain rules and/or the update of certain concepts therefore appears 
to  be  necessary  to  further  clarify  and  simplify  the  2012  SGEI  Package  in  order  for  the 
rules to be exploited to their full potential and to make sure inter alia that undertakings 
and public administrations get the legal certainly they look for.  

The EUR 500 000 ceiling of the SGEI de minimis Regulation in particular seems to have 
significantly  clarified and simplified the granting of SGEIs for providers  which receive 
the 
public  service  compensations  below 
administrative  burden  for  Member  States  as  they  no  longer  need  to  check  compliance 
with the Altmark criteria or fulfil the conditions of the SGEI Decision for compensations 
below EUR 500 000.  

that  amount.  In  addition, 

it  reduced 

Nevertheless, it seems that there would be a need to assess whether the current EUR 500 
000  ceiling  is  still  appropriate  in  the  current  situation.  Similarly,  coherence  between 
certain concepts of the SGEI de minimis Regulation (single undertaking, undertakings in 
difficulty and inclusion of the requirement to take into account mergers and acquisitions) 
with  the  general  de  minimis  Regulation  appears  to  need  further  thinking,  in  order  to 
further facilitate the application of the SGEI de minimis Regulation.   

53 

 
 
 
 
 
ANNEX I.   PROCEDURAL INFORMATION 

1.  LEAD DG, DECIDE PLANNING/CWP REFERENCES 

Commission Directorate-General for Competition (DG Competition). 

2.  ORGANISATION AND TIMING 

In the second half of 2019, the Commission services launched an evaluation exercise the 
purpose  of  which  was  to  check  if  the  rules  on  health  and  social  services  of  general 
economic interest (‘the services’) meet their objectives under the 2012 services package. 

The Roadmap was published on 17 June 2019 and set out the context, purpose and scope 
of  the  evaluation  exercise.  Stakeholders  had  until  15  July  2019  to  comment  on  the 
Roadmap. 

The first Inter-Service Steering Group (ISSG) was set up on 24 June 2019 and gathered 
representatives  from  the  Commission's  Secretariat  General,  and  Directorates-General: 
REGIO, GROW, SANTE, EMPL, and the LEGAL SERVICE. The ISSG was consulted 
on the scope SGEI rules and the evaluation to be carried out. 

The  ISSG  was  consulted  by  e-mail  on  the  factual  summary  report  of  the  public 
consultation on 25 March 2020 and on the draft expert study on 13 April 2021. 

A  public  consultation  was  open  from  31  July  2019  to  4  December  2019  on  the  Better 
Regulation Portal. DG Competition launched targeted consultations in the form of online 
questionnaires (EU Survey tool) addressed to the main stakeholders and interested parties 
on specific issues related to the evaluated rules.  

The  Evaluation  was  also  supported  by  a  study  carried  out  on  specific  aspects  of  the 
evaluated  rules  across  ten  Member  States,  i.e.  France,  Ireland,  Germany,  the  Czech 
Republic, Latvia, Portugal, Romania, Croatia, Sweden and the Netherlands. The selection 
of the Member States was inspired by case practice. The objective of that study was to 
receive an independent evidence-based assessment on how the rules worked. The Study 
provides:  an  overview  of  sector  and  market  trends  since  2012  (Task  1);  an  analysis  of 
how competition on the market has evolved since 2012 (Task 2); an analysis of the extent 
to  which  Member  States  are  aware  of  possible  State  aid  implications  of  policy  and 
market trends (Task 3); and an assessment of the effectiveness, efficiency, relevance and 
EU added value of the 2012 SGEI Package in so far as healthcare and social housing are 
concerned. The Study is ‘backward-looking’, focusing on the period following the entry 
into force of the 2012 SGEI Package until 2020, although the period prior to 2012 was 
also considered to undertake a counterfactual analysis. 

The expert who carried out  the above-mentioned study completed the data provided by 
the consultation with an online survey. The survey was launched in two stages: 

i.  First stage: from 13 October 2020 to 7 December 2020 for nine Member States. 

ii.  Second stage:  from  16  February  2021 to  26  February  2021. The survey  was re-

opened to include additional respondents from Romania. 

A  targeted  consultation  was  also  carried  out  inviting  the  national  authorities  to  express 
themselves.  

54 

 
 
 
The  ISG met for a third time on  10 November  2022 to  discuss the draft version of the 
present SWD. 

Agenda planning – Timing  

Date 
17 June 2019 - 15 July 2019 
24 June 2019 
31 July 2019 - 4 December 2019 
25 March 2020 and 13 April 2021  2nd ISSG consultation by e-mail 
10 November 2022 

Description 
Roadmap 
1st ISSG meeting  
Public consultations  

3rd ISSG meeting 

3.  EXCEPTIONS TO THE BETTER REGULATION GUIDELINES 

No exceptions were made to the Better Regulation Guidelines163 during this Evaluation.  

4.  CONSULTATION OF THE RSB (IF APPLICABLE) 

N/A 

5.  EVIDENCE, SOURCES AND QUALITY 

The  Evaluation  was  supported  by  an  external  study.  The  study  was  procured  in  the 
framework of a tender under the reference number No COP/2019/006164 of 24 December 
2019.  

Data sources included the State aid Scoreboard165, which comprises aid expenditure made 
by  Member  States  falling  under  the  scope  of  Article  107(1)  TFEU.  Internal 
Commission/DG Competition data used for the internal assessment include for instance 
interpretation questions by Member States. DG Competition's case practice was a major 
source  of  insight.  Court  judgements,  desk  research,  literature  review  and  internal 
statistics have also  played a role in  data  gathering. The Commission services also  used 
several  other  external  reports  and  several  bilateral  meetings  were  organised  with 
stakeholders at their request. The Commission services also used several other reports.  

163  https://ec.europa.eu/info/better-regulation-guidelines-and-toolbox_en. 
164  https://etendering.ted.europa.eu/cft/cft-display.html?cftId=5308.  
165  https://ec.europa.eu/competition/state_aid/scoreboard/index_en.html#what.  

55 

 
 
 
  
 
 
                                                           
ANNEX II. METHODOLOGY AND ANALYTICAL MODELS USED 

The current Evaluation was based on a wide range of data sources/inputs. 

Indeed, as mentioned in this SWD, the evaluation involved both internal analyses by the 
Commission services and an expert study prepared by an external consultant. 

As regards its own analysis, the Commission services used, in addition to the results of 
the  public  consultation  and  the  targeted  stakeholder  consultation,  existing  studies, 
experience  from  its  case  practice,  internal  statistics  and  data  from  the  SGEI  reports 
submitted by the Member States every two years.  

1.  DATA SOURCES 

1.1.  Consultation activities 

1.1.1.  Roadmap consultation 

Stakeholders  had  the  opportunity  to  provide  their  feedback  on  the  Roadmap  on  the 
website166 from 17 June 2019 to 15 July 2019. 

1.1.2.  A public consultation  

The  open  public  consultation  on  the  evaluation  of  SGEI  rules  applicable  to  health  and 
social  services  and  the  SGEI  de  minimis  Regulation  ran  between  31  July  2019  and  4 
December 2019. 

The  objective  of  this  public  consultation  was  to  obtain  the  views  of  citizens,  public 
authorities  and  other  relevant  stakeholders  on  the  effectiveness,  efficiency,  coherence, 
relevance  and  EU  added  value  of  the  2012  Service  of  general  Interest  (SGEI)  package 
with regard to health and social services, as well as to other services in the specific case 
of the SGEI de minimis Regulation. 

The public consultation took the form of an online survey, with a mix of closed and open 
questions. Participants were able to reply in any of the EU’s official languages. 

This public consultation was also promoted through Twitter, DG Competition’s State aid 
Newsletter and DG Competition’s website. The statistics computed in this summary are 
based  only  on  contributions  to  the  public  consultation  submitted  through  the  online 
questionnaire. The input has been analysed using a data analysis tool, complemented by 
manual analysis. 

The factual summary of the answers is available in Annex 5. 

1.1.3.  A targeted consultation 

At  the  same  time  of  the  public  consultation,  (also  between  the  31  July  2019  and  4 
December  2019),  the  Commission  launched  a  targeted  consultation,  addressed  to 
Member  States  directly  impacted  by  State  aid  rules  applicable  to  health  and  social 
services. The targeted online survey was similar to the survey of the public consultation. 
However,  it  included  additional  questions  specifically  targeted  to  the  experience  of 
Member  States  with  the  2012  SGEI  Package.  Given  that  it  is  the  Member  States  and 

166  https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/11835-State-subsidy-rules-for-health-and-

social-services-of-general-economic-interest-evaluation-_en.  
56 

 
 
 
                                                           
other  public  authorities  (for  instance  regional  and  local  authorities)  who  design  public 
policies  and  apply  the  State  aid  rules,  their  responses  are  of  particular  relevance  to  the 
analysis.  

1.2.  Expert study 

The Commission commissioned an external study with the objective to develop a better 
understanding of sector  developments  and the functioning of competition  in  the sectors 
concerned.  

It  was  conducted  by  Ernst  and  Young  Advisory  SAS  and  published  on  2  September 
2021167.  It  was  carried  out  in  the  course  of  2020,  also  making  use  of  the  results  of  the 
public  and  targeted  consultation  mentioned  above.  The  expert  study  is  ‘backward-
looking’, focusing on the period following the entry into force of the 2012 SGEI Package 
until  2020,  although  the  period  prior  to  2012  was  also  considered  to  undertake  a 
counterfactual analysis. 

The expert study focused on healthcare (and in particular on hospitals) and social housing 
It  focuses on the following Member States: France, Ireland, Germany, Czech Republic, 
Latvia, Portugal, Romania, Croatia, Sweden and the Netherlands.  

The  expert  study  provides  an  overview  of  sector  and  market  trends  since  2012;  an 
analysis  of  how  competition  on  the  market  has  evolved  since  2012;  an  analysis  of  the 
extent to which Member States are aware of possible State aid implications of policy and 
market  trends;  and  an  assessment  of  the  effectiveness,  efficiency,  relevance  and  EU 
added  value  of  the  2012  SGEI  Package  in  so  far  as  healthcare  and  social  housing  are 
concerned.  

The Study focused on a number of data collection tools. 

A core tool of the methodology was documentary review to gather both quantitative and 
qualitative data on market trends in relation to the application of the 2012 SGEI Package. 
It  aimed  at  providing  a  strong  understanding  of  the  main  changes  brought  by  the  2012 
SGEI Package, the issues at stake but also the developments in terms of market, policies 
or national  reforms.  For  the Study legislative documents, documents from international 
institutions, reports from NGOs and think tanks, national reports and sources and written 
contributions  sent  by  interviewees that  answered questionnaires deployed for the Study 
were consulted.  

In-depth statistical research was also needed to collect the necessary quantitative data 
for  the  Study.  The  Member  States’  biennial  SGEI  reports,  which  they  need  to  submit 
under Article 9 of the SGEI Decision, provided an overview of the expenditure related to 
SGEIs  in  the  Member  States  covered  by  the  Study,  with  the  OECD  and  Eurostat 
databases providing an overview of the Member State expenditure related to healthcare 
and  housing  as  well  as  the  European  trends.  The  national  statistical  databases 
complement this data and provide details on certain sectoral trends. 

Interviews were undertaken with stakeholders from: national/local authorities in charge 
of  the  healthcare  or/and  social  housing  sectors;  national/local  authorities  in  charge  of 
implementing and monitoring SGEIs; providers (healthcare and social housing); national 
industry  and  consumer  associations;  and  EU  NGOs  and  associations  (89  in  total).  The 

167  Commission,  Directorate  General  for  Competition,  final  report  prepared  by  EY  France  (Jessica  Chamba,  Emilie 
Balbirnie, Timothé Peroz, Soumia Benaich), Study on market trends in healthcare and social housing and EU state 
aid implications, 2021 (published on 3 September 2021 and available here: https://op.europa.eu/s/wIXK). 

57 

 
 
 
                                                           
interviews  aimed  to  provide  qualitative  data  relating  to  the  overall  effectiveness, 
efficiency, relevance and EU added value of the 2012 SGEI Package. An Online Survey 
was  sent  to  the  above-mentioned  stakeholder  groups  at  national  level.  53  stakeholders 
replied, covering all Member States falling under the scope of the Study. The analysis of 
the Online Survey was supplemented by analysis of responses to the Commission’s Open 
Public  Consultation  and  targeted  consultation  disseminated  prior  to  the  launch  of  the 
Study.  

Finally,  10 Member State  fiches were prepared  for the Member States covered by the 
Study in order to provide an overview of: the market situation in the healthcare and social 
housing  sectors;  the  reforms  that  have  impacted  the  legislative  landscape  and  the 
regulatory  framework  in  the  Member  States;  and  the  government  expenditure  for 
healthcare  and  social  housing  as  well  as  the  evolution  in  the  number  and  type  of 
providers and competition.  

1.3.  Other data sources 

One  of  the  important  data  sources  used  by  the  Commission  in  its  evaluation  are  the 
Member  States’  biennial  SGEI  reports.  These  reports  are  submitted  by  Member  States 
under Article 9 of the SGEI Decision and under paragraph 62 of the SGEI Framework, 
and  provide  an  overview  of  the  SGEI  expenditure  and  entrustments  in  each  Member 
State.168 

DG Competition has also conducted its own internal assessment of the application of the 
2012  SGEI  Package,  the  sectors  governed  by  those  rules  and  its  market  developments. 
Internal  Commission  data  used  for  the  internal  assessment  include  for  instance 
monitoring  results  and  interpretation  questions  by  Member  States.  DG  Competition's 
case practice is also a major source of insight.  

Court judgments, desk research, literature review and internal statistics have in addition 
played  a  role  in  data  gathering.  DG  Competition  used  as  well  several  other  publicly 
available reports and data such as data from EUROSTAT and the OECD. 

Finally, bilateral  meetings were held  with  stakeholders at  their  request.  Over the  years, 
the Commission services met with organisations in the field of (social) housing, welfare 
services  and  other  social  services.169  Commission  staff  also  participated  to  a  number  of 
forums and conferences on the matter.170 

2.  LIMITATIONS AND CHALLENGES OF THE EVALUATION 

One limitation of the evaluation stems from the fact that for certain services the impact of 
the rules is not fully tangible yet. The effects of State aid measures often only materialise 
with  a  certain  delay  and  not  sufficient  time  has  elapsed  in  order  to  fully  capture  the 
impact since the 2012 SGEI Package entered into force. 

168  The reports are available online: https://ec.europa.eu/competition-policy/state-aid/legislation/sgei_en. 
169  As exemples, the Commission services met with Build Europe, the Union Nationale des Fédérations d’Organismes 
HLM, the Fédération Française des Entreprises de Crèches and the Fédération Française des services à la personne 
et de proximité, Aedes, Bundesarbeitsgemeinschaft der Freien Wohlfahrtspflege e.V. (BAGFW), Housing Europe, 
etc. 

170  As exemples webinar on SGEI organised by the Cercle Europe et Economie Sociale (CEES), Conference « Europe 
et  Services  Publics  Locaux »  organised  by  the  Association  Française  du  Conseil  des  Communes  et  Régions 
d’Europe. 

58 

 
 
 
                                                           
This limitation is increased by: (i) the time gap due to the set-up of the Member States’ 
reporting obligations; and (ii) the fact that the obligation of reporting is every two years, 
which makes the evaluation of the 2012 SGEI Package particularly difficult. 

In some areas, the data are not available due to the lack of an obligation for the Member 
States  to  gather  and  report  such  data  (for  example  SGEIs  falling  under  the  SGEI 
Communication  or  the  SGEI  de  minimis  Regulation).  In  other  areas,  the  available  data 
are not sufficiently granular in order to enable a full analysis of all types of aid.  It also 
has to be recalled that with regard to exempted measures – which are not notified to the 
Commission – limited ex ante information is available. Ex post there is basic information 
available  for  all  measures  as  reported  by  the  Member  States  in  their  biennial  SGEI 
reports. More detailed information is available but only for a sample of SGEI exempted 
measures  (monitoring,  transparency  for  measure  above  the  threshold  and,  if  applicable, 
complaints). 

To this one needs to add the difficulty of gathering data in State aid control as opposed to 
other competition instruments, such as mergers and antitrust, which partially stems from 
the fact that the counterpart of the Commission in the proceedings is the Member States 
and  information  gathering  tools  are  limited  (and  many  of  them  relatively  recent)  under 
the State aid Procedural Regulation. 

Further,  and  considering  the  scope  of  the  evaluation  (limited  to  health  and  social 
services),  there  have  been  only  a  limited  number  of  decisions  adopted/schemes  put  in 
place in these sectors, limiting thus the practical experience of the Commission. 

Furthermore, despite DG Competition’s efforts to make stakeholders aware of the public 
consultation, the total number of replies was  limited. The public consultation generated 
51  replies,  which  is  a  very  small  number  compared  to  the  reference  population  of 
citizens, companies and public authorities potentially affected by the SGEI rules. 

Finally,  this  SWD  does  not  take  into  account  the  impact  of  the  COVID-19  crisis  and 
Russian  war  of  aggression  against  Ukraine  (which  are  unprecedented  situations)  and 
possible future policy measures which might be adopted by the Commission. Indeed, the 
public and targeted consultation were closed before the COVID-19 crisis and the Russian 
war of aggression against Ukraine171. As for the expert study, it was carried out during the 
COVID-19 crisis172. However, the study was backward-looking and focused on the period 
31  January  2012  to  31  December  2019.  As  a  result,  it  did  not  took  into  account  the 
COVID-19  crisis  and  the  Russian  war  of  aggression  against  Ukraine.  It  should  be 
stressed  that  COVID-specific  issues  were  addressed  under  that  temporary  Framework 
(see  section  3.3.1)  and  issues  related  to  the  Russian  war  of  aggression  against  Ukraine 
were addressed under the Temporary Crisis Framework (see section 3.3.2). 

2.1.  Method of the evaluation 

An evaluation needs an appropriate point of comparison to be able to assess the change 
that  the  EU  action  has  brought  over  time.  In  general,  the  main  baseline  (or 
counterfactual) is a situation in the absence of EU intervention.173 

171 The consultations were conducted between 31 July 2019 and 4 December 2019. 
172 The expert study was conducted between June 2020 and May 2021. 
173  It has to be noted that the construction of a baseline scenario for State aid is very complex and may be specific to 

the facts of the case. See also Section 2.1.7 

59 

 
 
 
                                                           
In the current situation, the EU intervention is the adoption of the 2012 SGEI Package. 
The  present  evaluation  assesses  the  reform  of  the  SGEI  rules  introduces  by  the  2012 
SGEI Package  as regards health and social services. Therefore, the baseline scenario is 
one  in  which  the  2005  SGEI  Package  (2005  SGEI  Decision  and  the  2005  SGEI 
Framework) would have continued to apply.174 

The current evaluation does not assess the unlikely scenario that the rules in force prior to 
2012 SGEI Package would have expired (in particular the 2005 SGEI Framework). The 
consequence  of  the  absence  of  substantive  rules  would  be  the  direct  application  of  the 
TFEU,  i.e.  the  notification  of  each  and  every  measure  constituting  State  aid  in  the 
meaning  of  Article  107(1)  TFEU  and  its  compatibility  assessment  by  the  Commission 
directly under Article 106(2) TFEU without any substantive guidance by the relevant soft 
law. 

The current evaluation also does not assess the existence/absence of State aid control as 
such, as the general prohibition of State aid is enshrined in the Treaty since 1957. 

The evaluation questions and criteria are presented in Annex 3 below.  

174  For  the  2005  SGEI  Decision,  it  would  have  remained  unchanged  and  continued  to  apply.  For  the  2005  SGEI 

Framework, it would have been prolonged beyond its expiry date, which was in November 2011. 

60 

 
 
 
 
 
 
                                                           
ANNEX III. EVALUATION MATRIX 

Effectiveness  

1.  To what extent have the updated state aid rules for SGEIs facilitated the provision 

of health and social SGEIs adapted to the population’s needs?  

a.  To what extent has the simplification of the rules enabled Member States to 

b. 

pursue aid measures for health and social SGEIs? 
If there are significant differences between Member States/sub-sectors what 
caused  them?  How  do  these  differences  link  to  the  clarification  of  health 
and social SGEIs concepts?  

c.  Which  specific  requirements  have  contributed  to  or  stood  in  the  way  of 

achieving the provision of health and social SGEIs? 

Efficiency  

2.  What  are  the  costs  and  benefits  (both  monetary  and  non-monetary)  associated 
with  the  application  of  the  requirements  set  by  the  rules  for  health  and  social 
SGEIs for the different stakeholders? 

a.  To what extent have the specific rules for health and social SGEIs enabled 
services  without  distorting  competition 

social 

the  provision  of 
disproportionately? 

b.  To what extent have the specific rules for health and social SGEIs enabled 
the  provision  of  social  services  without  causing  disproportionate 
administrative burden for Member States?  

Relevance  

3.  How  well  adapted  are  the  SGEI  rules  for  health  and  social  services  to  the 

development of the society, markets and social policy?  

a.  Is there evidence for the statements made in recital 11 of the SGEI Decision 
that the risk of distortion of competition in health and social SGEIs is still 
lower than in other sectors? 

b.  To what extent is the approach for health and social SGEIs introduced in the 
2012 SGEI Decision still justified (allowing unlimited compensation and no 
notification as long as the conditions of the 2012 SGEI Decision are met)? 

4.  To  what  extent  are  the  Member  States  aware  of  the  (relevance  of  the)  rules 

applicable to health and social SGEIs? 

a.  To what extent do Member States understand the applicability of (some of) 

the rules to each of their health and social SGEIs? 

Coherence  

5.  How well do the 2012 State aid rules for health and social SGEIs correspond to 
the wider EU policy applicable to health and social SGEIs - such as article 14 and 
168 TFEU and Protocol 26 to the TFEU – and to other State aid instruments?  

a.  How  do  the  2012  State  aid  rules  for  health  and  social  SGEIs  compare  to, 
complement and interact with other State aid instruments (such as the SGEI 
de minimis Regulation, R&R guidelines or the GBER)? 

6.  Is  the  2012  SGEI  Package  applicable  to  health  and  social  SGEIs  internally 
61 

 
 
 
 
 
 
 
 
 
 
 
 
consistent and coherent? Are there any overlaps, contradictions or missing links 
between the Decision, Framework and Communication? 

EU added value  

7.  Has  the  2012  SGEI  Package  allowed  for  a  better  task  allocation  between  the 

Commission and Member States? 

8.  Have the rules helped in ensuring legal certainty? 

62 

 
 
 
 
 
 
ANNEX IV. OVERVIEW OF BENEFITS AND COSTS  

Table 1. Overview of costs and benefits identified in the evaluation 

Citizens/Consumers  

Businesses 

Administrations 

Others 

Quantitative  

Comment 

Quantitative  

Comment 

Quantitative 

Comment  

Quantitative 

Comment 

[Cost or Benefit description]: 

0 

The evaluation has 
not identified any 
quantifiable costs  

The evaluation has 
not identified direct 
compliance costs, 
enforcement costs or 
indirect costs 

0 

The evaluation has 
not identified any 
quantifiable costs  

The evaluation has 
not identified direct 
compliance costs, 
enforcement costs or 
indirect costs for 
businesses. 

0 

The evaluation 
has not 
identified any 
quantifiable 
costs  

Costs:. 

Direct compliance costs 
(adjustment costs, administrative costs, 
regulatory charges) 
Enforcement costs:  (costs 
associated with activities linked to the 
implementation of an initiative such as 
monitoring, inspections and 
adjudication/litigation) 
Indirect costs (indirect compliance 
costs or other indirect costs such as 
transaction costs) 

Recurrent 

N/A 

N/A 

The evaluation has 
not identified any 
direct compliance 
costs.  However, it 
had identified 
enforcement and 
indirect costs. 
Indeed, the 
complexity of 
certain concepts 
may require 
technical expertise, 
which at times 
might lead to an 
increase in terms of 
time spent for 
interpretation and 
implementation of 
those concepts as 
well as a need for 
additional staff 
members or 
external experts 
(legal advisers, 
consultants)..e 
SGEI rules with, 
for instance, the 
introduction of an 
SGEI-specific de 
minimis Regulation 
or the enlargement 
of the notification 
exemptions. 

63 

 
                        
 
 
  
 
 
 
 
 
 
 
0 

The evaluation has 
not identified any 
quantifiable 
benefits  

For citizens and 
consumers, the 
adoption of the SGEI 
rules implied an 
easier access to 
certain SGEIs 

0 

The evaluation has 
not identified any 
quantifiable benefits  

Benefits: 

Direct benefits (such as improved 
well being: changes  in pollution levels, 
safety, health, employment; market 
efficiency) 
Indirect benefits (such as wider 
economic benefits, macroeconomic 
benefits, social impacts, environmental 
impacts) 

Recurrent 

N/A 

N/A 

0 

The evaluation 
has not 
identified any 
quantifiable 
benefits  

The 2012 SGEI 
Package simplified 
the SGEI rules with, 
for instance, the 
introduction of an 
SGEI-specific de 
minimis Regulation or 
the enlargement of the 
notification 
exemptions.  
It also clarified 
certain basic concepts 
relevant for the 
application of the 
SGEI rules. As a 
result, there is a 
simpler legal 
framework for SGEI 
provision. 

The 2012 SGEI 
Package simplified 
the SGEI rules 
with, for instance, 
the introduction of 
an SGEI-specific 
de minimis 
Regulation or the 
enlargement of the 
notification 
exemptions.  
It also clarified 
certain basic 
concepts relevant 
for the application 
of the SGEI rules. 
As a result, there is 
a simpler legal 
framework for 
SGEI provision.  

Overall, the 
evaluation 
concludes that the 
benefits of the 
2012 SGEI 
Package are higher 
than the costs and 
that the novelties 
introduced by the 
2012 SGEI 
Package facilitated 
to a certain extent 
the provision of 
SGEIs. 

64 

 
 
 
 
 
 
 
TABLE 2:  Simplification and burden reduction (savings already achieved)  

Citizens/Consumers/Workers 

Businesses 

Administrations 

Others 

Quantitative 

Comment 

Quantitative 

Comment 

Quantitative 

Comment 

Quantitative 

Comment 

Includes direct compliance cost savings; enforcement cost savings; and indirect cost savings. 

Recurrent 

0 

Citizens/consumers are not 
directly concerned by the 
administrative burden   

0 

0 

Overall, the 
evaluation suggests 
that businesses 
consider that the level 
of administrative 
burden after adoption 
of the 2012 SGEI 
Package is rather 
stable in comparison 
to the situation 
existing with the 
previous 2005 SGEI 
package.  

65 

N/A 

N/A 

The enlargement of 
the notification 
exemption for 
certain social 
services and the 
adoption of the 
SGEI de minimis 
Regulation 
simplified the 
implementation of 
the rules. Due to 
the absence of prior 
notification for 
these SGEIs, it 
helped to reduce 
the administrative 
burden and the 
workload of public 
authorities. 
However, the 
complexity of the 
method for cost 
calculation and the 
interpretations of 
legal terms, the 
monitoring of the 
absence of 
compensation itself 
can be burdensome 
for the authorities. 

The evaluation 
suggests that the 
administrative 
burden after the 
2012 SGEI 
package is stable or 
has slightly 
decreased.  

 
               
 
 
 
 
 
PART II: Potential simplification and burden reduction (savings) 

Citizens/Consumers/Workers 

Businesses 

Administrations 

Others 

Quantitative  

Comment 

Quantitative  

Comment 

Quantitative 

Comment   Quantitative 

Comment 

Includes direct compliance cost savings; enforcement cost savings; and indirect cost savings. 

Recurrent 

0 

Citizens/consumers are not 
directly concerned by the 
administrative burden   

0 

N/A 

N/A 

0 

Additional 
simplification and 
clarification of the 
applicable SGEI rules 
could be necessary to 
reduce further the 
administrative burden. 
As an example, the 
SGEI de minimis ceiling 
could be increased and 
certain concepts could 
be clarified (e.g. 
concepts of 
economic/non-economic 
activities, reasonable 
profit, etc.)  

Additional 
simplification and 
clarification of the 
applicable SGEI 
rules could be 
necessary to reduce 
further the 
administrative 
burden. As an 
example, the SGEI 
de minimis ceiling 
could be increased 
and certain 
concepts could be 
clarified (e.g. 
concepts of 
economic/non-
economic activities, 
reasonable profit, 
etc.) 

66 

 
 
 
 
ANNEX V. STAKEHOLDERS CONSULTATION  

1. 

INTRODUCTION 

This  report  covers  feedback  and  input  from  public  authorities,  associations,  companies 
and other organisations (“stakeholders”) as well as citizens as regards the Evaluation on 
the SGEI rules.  

The objective of the consultations was to gather evidence from stakeholders on the five 
evaluation criteria including for the purpose of verifying to which extent the SGEI rules 
reached the envisaged objectives under the 2012 SGEI Package. A separate question was 
asked  as  regards  the  SGEI  de  minimis  Regulation  inquiring  whether  the  amount  of  aid 
that can be granted under the SGEI de minimis Regulation, i.e. up to EUR 500 000 over 
any period of three fiscal years, is still appropriate. 

The Commission carried out an open public consultation in order to gather inputs from 
a  broad  range  of  stakeholders.  The  public  consultation  aimed  at  reaching  out  to  all 
relevant stakeholders and gave unlimited access to everybody who wanted to contribute. 
It  took  the  form  of  an  extensive  questionnaire  covering  certain  provisions  of  the  SGEI 
rules.  

In addition, DG Competition made use of targeted consultations in the form of online 
questionnaires addressed to the main stakeholders beyond the general public on specific 
issues  related  to  the  SGEI  rules.  The  stakeholders  for  the  targeted  questionnaires  and 
included those who are directly impacted by those rules, such as Member States, regional 
and local authorities, and other granting authorities. 

2.  FEEDBACK ON THE COMMISSION ROADMAP 

Stakeholders had the opportunity to provide their feedback on a Commission roadmap on 
the the SGEI Rules175 from 17 June 2019 to 15 July 2019. 

175  https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/11835-State-subsidy-rules-for-health-and-

social-services-of-general-economic-interest-evaluation-/feedback_en?p_id=5544255.  

67 

 
 
 
 
 
                                                           
A total of 11 stakeholders submitted their feedback on the Commission roadmap. These 
were  from  Business  associations  (5),  Non-gouvernmental  organisations  (4),  Public 
auhtorities  (1)  and  companies  /  business  organisations  (1).  As  regards  the  geographical 
repartition, most answers stemmed from Belgium (5) followed by Germany and France 
(2 replies each) and Netherlands and Italy (1 each).  

The  submissions  largely  supported  the  Commission’s  intention  to  evaluate  the  SGEI 
State aid rules under the Evluation.  

Many submissions received by the Commission concerned the housing sector and tackled 
the  increasing  price  levels  of  locative  spaces  in  EU  cities  which  are  often  no  longer 
affordable  for  average-income  families  and  drew  the  attention  on  the  necessity  of  the 
public hand to intervene on the housing market.  

3.  OPEN PUBLIC CONSULTATION  

3.1. 

Introduction  

An open public consultation,  meeting the Commission’s minimum standards, was open 
from 31 July 2019 to 4 December 2019.176  

The  objective  of  this  public  consultation  was  to  obtain  the  views  of  citizens,  public 
authorities  and  other  relevant  stakeholders  on  the  effectiveness,  efficiency,  coherence, 
relevance  and  EU  added  value  of  the  2012  Service  of  general  Interest  (SGEI)  package 
with regard to health and social services, as well as to other services in the specific case 
of the SGEI de minimis Regulation. 

The public consultation,  targeting  citizens and stakeholders, took  the form  of an online 
survey177 published on the Commission’s Better Regulation Portal, which included open 
and  closed  questions.  The  questionnaire  was  published  in  23  EU  official  languages178. 
Participants to the questionnaires could reply in any of those languages. 

This public consultation was also promoted through Twitter, DG Competition’s State aid 
Newsletter,  and  DG  Competition’s  website.  In  addition,  the  European  Parliament’s 
ECON committee was informed about the public consultation. 

The  input  has  been  analysed  using  a  data  analysis  tool,  complemented  by  manual 
analysis. The tool used is Doris Public Consultation Dashboard, an internal Commission 
tool for analysing and visualising replies to public consultations.  

3.2. 

Factual  summary  of  the  contributions  received  in  the  context  of  the 
public consultation on the SGEI Rules179 

The factual summary below only takes into account  the replies to  the closed questions. 

176  https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/11835-State-subsidy-rules-for-health-and-

social-services-of-general-economic-interest-evaluation-/public-consultation_en.  

177  EUSurvey tool. 
178 With the exception of Irish.  
179  This  section  should be  regarded  solely  as  a  summary  of  the  contributions  made  by  stakeholder during  the public 
consultation on the State aid rules. It cannot in any circumstances be regarded as the official position of the European 
Commission or its services. This section only provides a factual summary. This factual summary was published on the 
Commission’s Better Regulation Portal on 3 April 2020. 

68 

 
 
 
                                                           
 
Questions not presented in this document constitute open questions. 

3.2.1.  Overview of the respondents 

In  total,  the  public  consultation  received  51  replies:  31  from  organisations  such  as 
business  associations,  company/business  organisations,  consumer  organisations,  NGOs 
and trade unions), 10 from public authorities at different levels, 5 from individuals and 5 
from  other  respondents  (see  figure  1  for  details).  “Other  respondents”  include  for 
example European umbrella organisations and health/welfare organisations. 

Figure 1: Profile of the respondents 

The  most  common  languages  of  contribution  were  English  and  French  (17  each)  and 
German (7). All the replies came from EU countries, mainly from Belgium (18), France 
(11) and Germany (6). The origin of the respondents is represented in Figure 2.  

69 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Figure 2: Country of origin 

The questionnaire contained a total of 46 questions (including sub questions), with a mix 
of  closed  and  open  questions,  which  were  devised  around  the  five  evaluation  criteria 
effectiveness,  efficiency,  coherence,  relevance  and  EU  added  value.  In  addition,  it 
contains a specific section on the SGEI de minimis Regulation. All closed questions were 
obligatory, but the respondents had the choice of “I Do not know” and “Not relevant for 
me” options. 

The public consultation covered all four documents part of the 2012 SGEI Package and 
subject  of  the  Evaluation.  However,  for  some  respondents  only  part  of  the  2012  SGEI 
Package might have been relevant. This could be one of the reasons why the percentage 
of “I Do not know” and “not relevant for me” responses was fairly high.  

3.2.2.   Effectiveness (Have the objectives been met?) 

In  order  to  evaluate  whether  the  SGEI  rules  for  health  and  social  services  met  their 
objectives, stakeholders were asked to answer a set of twelve questions. 

Question 18 inquired whether some specific factors facilitated compliance with the SGEI 
rules applicable to health and social services. 

70 

 
 
 
 
 
 
 
 
 
 
 
Figure  3:  Question  18  -  Did  the  factors  below  facilitate  the  compliance  with  the  SGEI  rules 
applicable to health and social services? 

Question 21 inquired whether the four main objectives of the SGEI rules applicable to 
health  and  social  services  were  achieved  while  maintaining  a  competitive  internal 
market. 

Figure  4:  Question  21  -  Were  the  objectives  of  the  SGEI  rules  applicable  to  health  and  social 
services achieved while maintaining a competitive internal market? 

Question 23 inquired whether the 2012 SGEI Package with regard to health and social 
services  had  any  positive  impacts  that  were  not  expected  or  not  intended.  31  out  of  51 
respondents  did  not  express  a  view.  13  respondents  who  expressed  a  view  were  of  the 
opinion  that  the  2012  SGEI  rules  had  positive  impacts  that  were  not  expected  or  not 
intended. 6 of them identified themselves as a “company/business organisations”. Other 
type of respondents include public authorities (2), NGOs (3), trade unions (1) and other 
(1). 

71 

 
 
 
 
 
Figure 5: Unexpected or unintended positive impacts of the 2012 SGEI Package. 

Question 25 inquired whether the 2012 SGEI Package with regard to health and social 
services had any negative impacts that were not expected or not intended. 24 respondents 
who expressed a view were of the opinion that the 2012 SGEI rules had negative impacts 
that were not expected or not intended. 

Figure 5: Unexpected or unintended negative impacts of the 2012 SGEI Package. 

Question 27 inquired whether the publication on the internet or by other means of SGEI 
compensation  for  health  and  social  services  above  EUR  15  million  made  it  easier  to 
check  the  entrustment  acts,  possibly  to  challenge  them  and  whether  it  made  aid 
transparent  for  stakeholders,  companies  and  the  general  public.  22  (increasing 
transparency  towards  stakeholders),  respectively  23  (enable  companies  and  other 
interested parties to check whether aid was granted in line with the rules) respondents did 
not have an opinion on this. 16 respondents who expressed a view were of the opinion 
that  the  publication  obligation  increased,  at  least  partially,  the  transparency  of  SGEI 
compensation.  17  respondents  were  of  the  opinion  that  it  enabled,  at  least  partially, 
interested parties to check whether aid is granted in line with SGEI rules. 

72 

 
 
 
 
 
 
 
Figure  4:  Question  27  -  Did  the  publication  on  the  internet  or  by  other  means  of  SGEI 
compensation  for  health  and  social  services  above  EUR  15  million  make  it  easier  to  check  the 
entrustment  acts,  possibly  to  challenge  them  and  did  it  make  aid  transparent  for  you,  (other) 
stakeholders and companies and the general public? 

3.2.3.  Efficiency (Were the costs involved proportionate to the benefits?) 

In  order  to  evaluate  whether  the  costs  involved  in  complying  with  the  SGEI  rules  for 
health  and  social  services  were  proportionate  to  the  benefits  of  having  such  rules, 
stakeholders were asked to answer a set of five questions. 

Question 29 inquired whether the 2012 SGEI Package reduced the administrative burden 
with regard to health and social services compared to the rules in force under the 2005 
SGEI Package. 25 (as regards the administrative burden for public authorities) and 19 (as 
regards  the  administrative  burden  for  the  beneficiaries)  respondents  did  not  have  an 
opinion on this.  9 respondents  disagreed,  at  least  partially as  regards the administrative 
burden  for  public  authorities  and  11  respondents  disagreed,  at  least  partially  as  regards 
the administrative burden for public authorities. 

Figure 5 - Question 29: Did the 2012 SGEI Package reduce the administrative burden with regard 
to health and social services compared to the rules in force under the 2005 package? 

Question  31  inquired  to  what  extent  the  amount  of  resources  (for  example  money  and 
personnel)  spent  on  administrative  activities  with  regard  to  health  and  social  services 
changed,  compared  to  the  period  2005-2012  when  the  2005  SGEI  Package  was  still  in 
force. 33 respondents did not have an opinion on this. 11 respondents who expressed a 
view was of the opinion that the amount of resources spent did not change or increased. 

73 

 
 
 
 
 
 
 
Figure  6  -  Question  31:  To  what  extent  did  the  amount  of  resources  (for  example  money  and 
personnel)  you  spent  on  administrative  activities  with  regard  to  health  and  social  services 
change, compared to the period 2005-2012 when the 2005 SGEI Package was still in force? 

3.2.4.  Relevance (Is EU action still necessary?) 

In order to  understand if the SGEI  rules for health  and social services are still relevant 
considering the market  developments,  stakeholders were asked to  answer a set  of eight 
questions. 

Question 34  inquired how well the objectives of the 2012  SGEI Package as  applied to 
health  and  social  services  still  correspond  to  today’s  (EU  internal)  market  situation.  In 
particular, the question referred to the objective of simplifying the compatibility criteria 
and reducing the administrative burden for Member States that compensate undertakings 
entrusted to provide such services to the (vulnerable part of the) population at affordable 
conditions.  31  respondents  expressed  the  view  that  the  mentioned  objectives  still 
correspond, at least partially, to the current market situation. 

Figure 7 - Question 34: how well do the objectives of the 2012 SGEI Package as applied to health 
and social services still correspond to today's (EU internal) market situation? 

Question 36 inquired to what extent some specific elements of the 2012 SGEI Decision 
correspond  to  the  (EU  internal)  market  developments  in  the  field  of  health  and  social 
services that have occurred since 2012. With regard to each of the elements presented, 21 

74 

 
 
 
 
 
 
 
(the  requirement  to  refer  to  the  2012  SGEI  Decision  in  the  entrustment  act)  to  30  (the 
requirement to define the nature, duration and territory concerned) respondents expressed 
the view that the SGEI rules are still relevant, at least to some extent. 

Figure 8  -  Question 36: To what  extent does  each separate  element  of the 2012 SGEI Decision 
correspond  to  the  (EU  internal)  market  developments  in  the  field  of  health  and  social  services 
that have occurred since 2012? In other words, do these elements still serve a purpose? 

Question  38  inquired  whether  the  respondents  experienced  difficulties  in  applying  the 
“reasonable profit” requirement as explained in Article 5 of the 2012 SGEI Decision.180 
20 respondents who expressed a view declared that they experienced difficulties (either a 
lot or few difficulties). 

180  The question clarified that ‘reasonable profit’ means the rate of return on capital that would be required by a typical 
undertaking considering whether or not to provide the service of general economic interest for the whole period of 
entrustment, taking into account the level of risk. 

75 

 
 
 
 
                                                           
Figure  9  -  Question  38:  Have  you  experienced  difficulties  in  applying  the  “reasonable  profit" 
requirement as explained in Article 5 of the 2012 SGEI Decision? 

Question  40  inquired,  for  each  of  the  sectors  covered  by  the  2012  SGEI  rules,  if  the 
assumption on which the 2012 SGEI rules were adopted, i.e. that the risk of distortion of 
competition  for  health  and  social  services  is  lower  than  in  other  sectors,  is  still  valid. 
Depending  on  the  sector,  15  (access  and  reintegration  into  the  labour  market)  to  25 
(social  housing)  of  the  respondents  expressed  the  view  that  the  risk  of  distortion  of 
competition is still lower than in other sectors. 

Figure 10 - Question 40: compared to 2012, when the SGEI Package entered into force, do you 
consider that the risk of distortion of competition in the health and social services sector is still 
lower than in other sectors? 

3.2.5.  Coherence  (Does  the  policy  complement  other  actions  or  are  there 

contradictions?) 

In order to  understand the extent to  which the SGEI  rules are coherent  with  each other 
and with other EU rules, stakeholders were asked to answer the following question. 

76 

 
 
 
 
 
Question 42 inquired whether the SGEI rules as applicable to health and social services 
are coherent with each other. 18 respondents who expressed a view stated that the SGEI 
rules are coherent with each other, fully or partially. 

Figure  11:  Question  42  -  Are  the  SGEI  rules  (the  SGEI  Decision,  SGEI  Framework,  the  SGEI 
Communication and the SGEI de minimis Regulation) insofar as they are applicable to health and 
social services coherent with each other? 

3.2.6.  EU added value (Did EU action provide clear added value?) 

In order to evaluate the EU added value of the SGEI rules for health and social services, 
stakeholders were asked to answer two questions. 

Question  44  inquired  whether  the  SGEI  Package,  with  regard  to  health  and  social 
services,  allowed  for  a  better  task  allocation  between  the  Commission  and  the  member 
States. The respondents expressed very different  views. Around half of the respondents 
who expressed a view were of the opinion that the SGEI rules allowed, at least partially, 
a  better  allocation  of  tasks  between  the  Commission  and  the  Member  States,  while  the 
other half took the opposite view. 

77 

 
 
 
 
 
 
Figure  12:  Question  44  -  Has  the  2012  SGEI  Package  allowed  for  a  better  allocation  of  tasks 
between the Commission and the Member States? 

3.2.7.  SGEI de minimis Regulation 

Question 46 inquired whether the amount of aid that can be granted under the SGEI de 
minimis Regulation, i.e. up to EUR 500 000 over any period of three fiscal years, is still 
appropriate.  28  respondents  took  the  view  that  the  amount  of  aid  that  can  be  granted 
under the SGEI de minimis Regulation is too low. 

Figure 13: Question 46 – Is the amount of de minimis aid that can be granted under the SGEI de 
minimis  Regulation,  i.e.  up  to  EUR  500  000  over  any  period  of  three  fiscal  years,  still 
appropriate? 

4.  TARGETED CONSULTATION 

As  described  above  in  section  1  of  the  present  annex,  in  addition  to  the  public 
consultation, DG Competition carried out a targeted consultation in the form of an online 
questionnaire  addressed  to  public  authorities.  The  targeted  consultation  allowed  public 
authorities to elaborate more on their answers and/or to flag issues not addressed in the 
open questionnaire. The results of the targeted consultations were not published.  

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In total, 21 replies were received. Out of these, 13 were received from the national level 
(e.g. ministries), two were submitted by regional entities, and one reply was submitted by 
a municipality.  

The questionnaire was almost identical with the one sent for public consultations, with a 
mix of closed and open questions, which were devised around the five evaluation criteria 
effectiveness, efficiency, coherence, relevance and EU added value. All closed questions 
were  obligatory,  but  the  respondents  had  the  choice  of  “I  Do  not  know”  and  “Not 
relevant for me” options. 

The targeted consultation covered all four documents part of the 2012 SGEI Package and 
subject  of  the  Evaluation.  However,  for  some  respondents  only  part  of  the  2012  SGEI 
Package might have been relevant. This could be one of the reasons why the percentage 
of “I Do not know” and “not relevant for me” responses was fairly high.  

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ANNEX VI. OVERVIEW OF THE STATE AID RULES SUBJECT TO THE SGEI EVALUATION 

State aid rules under the SGEI 
Evaluation 

Entry into 
force 

Expiry/Review 
clause 

SGEI Decision 2012/21/EU 

31 January 
2012 

N/A 

Part 
of 
SAM 
No 

OJ reference 

Preceded by 

Objective 

OJ L 7, 11.1.2012, p. 3–10, 
Special edition in Croatian: 
Chapter 08 Volume 003 P. 289 - 
296  

Decision 2005/842/EC OJ L 312, 29.11.2005, p. 67–
73; OJ L 327M , 5.12.2008, p. 488–498 (MT) 
Special edition in Bulgarian: Chapter 08 Volume 
002 P. 186 - 192 
Special edition in Romanian: Chapter 08 Volume 
002 P. 186 – 192 

To declare certain compensation granted to undertakings 
entrusted with the operation of services of general 
economic interest as referred to in Article 106(2) of the 
Treaty (see Art. 2 thereof) compatible with the internal 
market and exempt them from the requirement of prior 
notification and Commission approval. 

Communication from the 
Commission — European Union 
framework for State aid in the form 
of public service compensation 

31 January 
2012 

EC intended to 
review by 31 
January 2017  

No 

OJ C 8, 11.1.2012, p. 15–22 

SGEI de minimis Regulation No 
360/2012  

26 April 
2012 

31 December 
2023 

No 

OJ L 114, 26.4.2012, p. 8–13 
(BG, ES, CS, DA, DE, ET, EL, 
EN, FR, IT, LV, LT, HU, MT, 
NL, PL, PT, RO, SK, SL, FI, SV) 
Special edition in Croatian: 
Chapter 08 Volume 003 P. 297 - 
302 

Communication from the 
Commission on the application of the 
European Union State aid rules to 
compensation granted for the 
provision of services of general 
economic interest  

31 January 
2012 

No 

OJ C 8, 11.1.2012, p. 4–14 (BG, 
ES, CS, DA, DE, ET, EL, EN, 
FR, IT, LV, LT, HU, MT, NL, 
PL, PT, RO, SK, SL, FI, SV) 

Community framework for State aid in the form of 
public service compensation OJ C 297, 29.11.2005, 
p. 4–7 (ES, CS, DA, DE, ET, EL, EN, FR, IT, LV, 
LT, HU, NL, PL, PT, SK, SL, FI, SV) 
Special edition in Bulgarian: Chapter 08 Volume 
004 P. 216 - 219 
Special edition in Romanian: Chapter 08 Volume 
004 P. 216 - 219 
Special edition in Croatian: Chapter 08 Volume 005 
P. 146 – 149 
Commission Regulation (EC) No 1998/2006; OJ L 
379, 28.12.2006, p. 5–10 (ES, CS, DA, DE, ET, EL, 
EN, FR, IT, LV, LT, HU, NL, PL, PT, SK, SL, FI, 
SV) 
OJ L 314M , 1.12.2007, p. 654–659 (MT) 
Special edition in Bulgarian: Chapter 08 Volume 
005 P. 96 - 101 
Special edition in Romanian: Chapter 08 Volume 
005 P. 96 - 101 
Special edition in Croatian: Chapter 08 Volume 003 
P. 197 - 202. 
N/A  

The principles set out in this Communication apply to 
public service compensation only in so far as it 
constitutes State aid not covered by Decision 
2012/21/EU. Such compensation is subject to the prior 
notification requirement under Article 108(3) of the 
Treaty. This Communication spells out the conditions 
under which such State aid can be found compatible with 
the internal market pursuant to Article 106(2) of the 
Treaty. 

To provide a ceiling below which aid measures to 
undertakings for the provision of a service of general 
economic interest are deemed not to constitute State aid 
within the meaning of Article 107 TFEU, and are 
exempted from the notification procedure, because they 
are considered not to any effect on cross-border 
competition among Member States. 

To clarify basic concepts of State aid, which are relevant 
for SGEIs, in particular the notion of aid, SGEI, 
economic activity etc  

80 

 
 
 
 
 
 
 
ANNEX VII. RELEVANT LEGAL PROVISIONS IN THE TFEU 

1.  ARTICLE 14 TFEU 

Without  prejudice  to  Article  4  of  the  Treaty  on  European  Union  or  to  Articles  93,  106 
and  107  of  this  Treaty,  and  given  the  place  occupied  by  services  of  general  economic 
interest in the shared values of the Union as well as their role in promoting social and 
territorial  cohesion,  the  Union  and  the  Member  States,  each  within  their  respective 
powers  and  within  the  scope  of  application  of  the  Treaties,  shall  take  care  that  such 
services  operate  on  the  basis  of  principles  and  conditions,  particularly  economic  and 
financial  conditions,  which  enable  them  to  fulfil  their  missions.  The  European 
Parliament  and  the  Council,  acting  by  means  of  regulations  in  accordance  with  the 
ordinary  legislative  procedure,  shall  establish  these  principles  and  set  these  conditions 
without prejudice to the competence of Member States, in compliance with the Treaties, 
to provide, to commission and to fund such services. 

2.  ARTICLE 106 TFEU 

1.  In  the  case  of  public  undertakings  and  undertakings  to  which  Member  States  grant 
special or exclusive rights, Member States shall neither enact nor maintain in force any 
measure  contrary  to  the  rules  contained  in  the  Treaties,  in  particular  to  those  rules 
provided for in Article 18 and Articles 101 to 109. 

2. Undertakings entrusted with the operation of services of general economic interest or 
having  the  character  of  a  revenue-producing  monopoly  shall  be  subject  to  the  rules 
contained  in  the  Treaties,  in  particular  to  the  rules  on  competition,  in  so  far  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 Union. 

3. The Commission shall ensure the application of the provisions of this Article and shall, 
where necessary, address appropriate directives or decisions to Member States. 

Article  106  TFEU  chiefly  concerns  undertakings  for  which  MS  must  take  special 
responsibility by reason of the particular influence that they may exert over their actions. 
The  Treaty  provision  is  part  of  the  system  of  undistorted  competition  that  the  TFEU 
provides by securing equality of opportunity between the various economic operators. 

3.  ARTICLE 107(1) TFEU: NOTION OF AID AND GENERAL PROHIBITION 

Article 107(1) TFEU states that:  “any aid granted by a Member state or through  State 
resources  in  any  form  whatsoever  which  distorts  or  threatens  to  distort  competition  by 
favouring  certain  undertakings  or  the  production  of  certain  goods  shall,  insofar  as  it 
affects trade between Member States, be incompatible within the internal market”. 

Consequently, the cumulative requirements that have to be met in order for a measure to 
be  considered  as  State  aid  and  to  fall  under  the  State  aid  general  prohibition  are  the 
following: 

a.  the aid must be granted by a Member State or through State resources;  

b.  there must be a selective advantage;  

c.  there must be a -threat of- distortion of competition; and  

81 

 
 
 
 
d.  there must be affectation of trade between Member States. 

I. 

Ex lege derogations provided by Article 107(2) TFEU 

Once defined if the measure constitute State aid, Article 107(2) TFEU provides a list of 
State  measures  that  are  ex  lege  deemed  to  be  compatible  with  the  internal  market, 
provided that the conditions therein are met: 

a.  Aid having a social character, granted to individual consumers, provided that 
such aid is granted without discrimination related to the origin of the products 
concerned; 

b.  Aid  to  make  good  the  damage  caused  by  natural  disasters  or  exceptional 

occurrences; 

c.  Aid  granted  to  the  economy  of  certain  areas  of  the  Federal  Republic  of 
Germany affected by the division of Germany, in so far as such aid is required 
in  order  to  compensate  for  the  economic  disadvantages  caused  by  that 
division.  

II. 

Discretionary derogations provided by Article 107(3) TFEU 

Once defined if the measure constitute State aid, Article 107(3) TFEU provides a list of 
State  measures  that  maybe  considered  compatible  with  the  internal  market.  The 
measures are the following: 

a.  aid  to  the  economic  development  of  most  disadvantaged  regions  within  the 

European Union; 

b.  aid  to  promote  the  execution  of  an  important  project  of  common  European 
interest or to remedy a serious disturbance in the economy of a Member State; 

c.  aid  to  facilitate  the  development  of  certain  economic  activities  or  of  certain 
economic areas, where such aid does not adversely affect trading conditions to 
an extent contrary to the common interest; 

d.  other categories as may be specified by a decision of the Council. 

4.  ARTICLE 108 TFEU 

1.  The  Commission  shall,  in  cooperation  with  Member  States,  keep  under  constant 
review  all  systems  of  aid  existing  in  those  States.  It  shall  propose  to  the  latter  any 
appropriate measures required by the progressive development or by the functioning of 
the internal market. 

2.  If,  after  giving  notice  to  the  parties  concerned  to  submit  their  comments,  the 
Commission  finds  that  aid  granted  by  a  State  or  through  State  resources  is  not 
compatible  with  the  internal  market  having  regard  to  Article  107,  or  that  such  aid  is 
being  misused,  it  shall  decide  that  the  State  concerned  shall  abolish  or  alter  such  aid 
within a period of time to be determined by the Commission. 

If the State concerned does not comply with this decision within the prescribed time, the 
Commission  or  any  other  interested  State  may,  in  derogation  from  the  provisions  of 
Articles  258  and  259,  refer  the  matter  to  the  Court  of  Justice  of  the  European  Union 
direct. 

82 

 
 
 
 
On application by a Member State, the Council may, acting unanimously, decide that aid 
which that State is granting or intends to grant shall be considered to be compatible with 
the  internal  market,  in  derogation  from  the  provisions  of  Article  107  or  from  the 
regulations  provided  for  in  Article  109,  if  such  a  decision  is  justified  by  exceptional 
circumstances.  If, as  regards  the aid  in  question, the Commission  has already initiated 
the procedure provided for in the first subparagraph of this paragraph, the fact that the 
State  concerned  has  made  its  application  to  the  Council  shall  have  the  effect  of 
suspending that procedure until the Council has made its attitude known. 

If, however, the Council has not made its attitude known within three months of the said 
application being made, the Commission shall give its decision on the case. 

3.  The  Commission  shall  be  informed,  in  sufficient  time  to  enable  it  to  submit  its 
comments,  of  any  plans  to  grant  or  alter  aid.  If  it  considers  that  any  such  plan  is  not 
compatible with the internal market having regard to Article 107, it shall without delay 
initiate  the  procedure  provided  for  in  paragraph  2.  The  Member  State  concerned  shall 
not  put  its  proposed  measures  into  effect  until  this  procedure  has  resulted  in  a  final 
decision. 

4. The Commission may adopt regulations relating to the categories of State aid that the 
Council has, pursuant  to Article 109, determined may be exempted from  the procedure 
provided for by paragraph 3 of this Article. 

5.  ARTICLE 109 TFEU 

The  Council,  on  a  proposal  from  the  Commission  and  after  consulting  the  European 
Parliament,  may  make  any  appropriate  regulations  for  the  application  of  Articles  107 
and  108  and  may  in  particular  determine  the  conditions  in  which  Article  108(3)  shall 
apply and the categories of aid exempted from this procedure. 

6.  PROTOCOL 26 ON SERVICES OF GENERAL INTEREST ANNEXED TO THE TFEU 

Article 1 

The shared values of the Union in respect of services of general economic interest within 
the  meaning  of  Article  14  of  the  Treaty  on  the  Functioning  of  the  European  Union 
include in particular: 

— the essential role and the wide discretion of national, regional and local authorities in 
providing,  commissioning  and  organising  services  of  general  economic  interest  as 
closely as possible to the needs of the users; 

— the diversity between various services of general economic interest and the differences 
in the needs and preferences of users that may result from different geographical, social 
or cultural situations; 

— a high level of quality, safety and affordability, equal treatment and the promotion of 
universal access and of user rights. 

Article 2 

The provisions of the Treaties do not affect in any way the competence of Member States 
to provide, commission and organise non-economic services of general interest. 

83