Public Services

Overview

Introduction

The concept of public service covers extremely varied areas of intervention ranging from “sovereign powers” (the judiciary, police and army) to other activities (transport, health care, employment, culture etc.) the performance of which by national, regional and local authorities changes in accordance with different periods, historical and cultural traditions, the needs of society, as well as the process of European integration (free circulation of services, the single market, competition policy, legislation on services of general interest, etc.).

At EU level, there is no standardisation of services imposed on Member States as a whole. Only the major network services (electricity, gas, transport, post and telecommunications, etc.) have been the subject of sectoral regulation following their total or partial liberalisation. Moreover, the concept of public service does not exist as such in EU law, with European legislation and jurisprudence using the new concepts such as those of “services of general interest” (SGI) and “services of general economic interest” (SGEI).

SGEI remain an exception to the principle of free competition laid down by the European Union: “when the market, in its rationale of regulation, is not able to deliver to a sufficient standard services that are of collective utility, it is logical that – as an exception to the principles of competition, free circulation and prohibition of State aid – public authorities, notably at national and local levels may intervene in order to ensure that these services are provided to a sufficient standard”.  EU law attempts to reconcile the principle of free competition and the safeguarding of general interest by exempting providers of public services from competition rules under certain circumstances (see Articles 106 and 107 of the Treaty on the Functioning of the European Union).

The role of SGI/SGEI in promoting economic, social and territorial cohesion was enshrined in the Treaties of Amsterdam and Lisbon (Article 14 of the Treaty on the Functioning of European Union),  which stipulate that SGI/SGEI form part of the “shared values” of the European Union.

Public authorities are given a margin of discretion on the basis of their competences as to their choice to provide, have performed and organise services. In the cross-border context, the opening-up of national borders both in terms of markets and public authorities’ cooperation offers new opportunities for the pooling of public services. However, the diversity of the applicable regimes and policies in this area means that this opening-up is complex. As was highlighted by the study on the Basque Eurocity’s public services: “The cross-border territory faces a two-fold tension: on the one hand, the continuing sovereignty of the State, and on the other, the need to resolve the problems linked to the proximity to another country.”  Because, both for the citizens living in a cross-border territory and for the competent public authorities, joint management of services of general interest has in many domains become a necessity and often a tangible reality.

The creation of the internal market has led to an intensification of cross-border flows. Public services therefore need to adapt to the new needs of the inhabitants who work, study, receive medical treatment etc. either side of the borders concerned. As a consequence, the provision of the services needed by these populations cannot stop at the national borders.
 
The continuity of a territory and the recognition of a cross-border community depend on the ability to communicate without restriction, on the existence of means of transport that facilitate mobility from one side of the border to the other, on the promotion of the common cultural heritage and on employment policy that contributes to economic development. Coordinated public action that is capable of managing activities that are essential for the population is needed, especially when the action of the market alone, through the mechanism of free competition, proves insufficient.

Cross-border services of general interest therefore play a crucial role with respect to social and territorial cohesion, and growth and employment.

1.  Extract from the minutes of the Discussion Group of the European Commission's Permanent Representation in France of 6 December 2011: "Europe et services publics : Les clés du débat" ("Europe and public services: the key issues").

2. Extract from Article 14 of the TFEU: "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."

3. López Basaguren, Albert o "Los servicios públicos locales enla eurociudad vasca Bayonne-San Sebastian".