Public Services and EU Competition Law: The Social Market Economy in Action

Description

This monograph, which was also designed as a short reference book for specialized undergraduate and graduate courses on EU law, intends to shed light on, and legally frame, the evolution of the doctrine of services of general economic interest (SGEIs). The book emphasizes the pivotal role played by SGEIs in striking a fair balance between market and social objectives. To this end, the book claims, first of all, that SGEIs have a dual nature inasmuch as they act as a limitation to/derogation from the free market and, simultaneously, as a value and positive obligation addressed at national authorities, undertakings, and EU institutions. The EU notions of access to public services and universal service are the clearest signal of such phenomenon. Secondly, the book claims that the transfer of competences from the Union to the Member States and the reaffirmation of Member States’ sovereignty in crucial sectors of the economy are not the only solutions to foster social rights. In fact, this narrative is apt to undermine the foundations, spirit, and purpose of the process of European integration, especially at a time like the present, when new forms of populism and anti-Europeanism are on the rise, and when a European response is imperative to counter the spread of the coronavirus in European countries. The book concludes that SGEIs’ regulation is an area of law where the EU institutions have generally successfully put into action and consolidated the social market economy principles on which the EU was founded. This is even further proof that the EU is not merely the reflection of interests linked to market completion, but also and foremost a ‘Community based on the rule of law’. The book will be a valuable resource for academics and researchers in EU Law, European Public Law and EU competition law. Cover Half Title Title Copyright Dedication Table of Contents Acknowledgments Foreword Abbreviations Introduction. Background, Aims, Scope and Structure of the Book I. The Elusive Notion of Service of General Economic Interest 1. Origins of the Term 2. Services of General Economic Interest as a Species of the Genus Services of General Interest 3. Economic Activity and Functional Approach 4. The Nuanced Functional Approach in the Fields of Social Security and Healthcare and the Legal (Un)Certainty Concerning Economic Social Services of General Interest 5. Concept of Non-Economic General Interest II. Rationale, Content and Scope of Article 106(2) TFEU 1. Contextualization of Article 106 TFEU in EU Primary Law 2. The Evolving Interpretation of Article 106(1) and (3) TFEU and the Liberalization of Privatized Services of General Economic Interest 3. The Interplay between Public Undertakings, Special Rights and Exclusive Rights 4. The Relationship between Article 106(1) TFEU and Article 37 TFEU on Commercial Monopolies 5. Article 106(2) TFEU as a Sui Generis Derogation 6. Article 106(2) TFEU’s Direct Effect 7. Role of the Commission pursuant to Article 106(3) TFEU III. Services of General Economic Interest beyond Article 106(2) TFEU 1. The Commission’s Stance on Services of General Economic Interest as a Pillar of the European Economic and Social Constitution 2. Article 14 TFEU, Protocol no. 26 on Services of General Interest, Social Cohesion and the Denationalization of Social Welfare 3. Article 36 of the Charter of Fundamental Rights and Access to Services of General Economic Interest 4. The Twofold Nature of Services of General Economic Interest: Derogation and Obligation IV. Distribution of Competences between Member States and the EU 1. Universal Service, Services of General Economic Interest and Common European Values 2. What’s in a Service of General Economic Interest? The Identification of Public Service Obligations V. Services of General Economic Interest and the Abuse of Dominant Position 1. The Joint Application of Article 106(1) TFEU and Article 102 TFEU 2. The CJEU’s Fluid Reading of Article 106(2) TFEU VI. Services of General Economic Interest and State Aid 1. The Historical and Legal Background on the Financing of Services of General Economic Interest Prior to the ‘Almunia Package' 2. The ‘Almunia Package’ and the Social Dimension of State Aid 3. The Commission’s Sectorial Practice after the ‘Almunia Package’ and the Relevant Case Law of the CJEU 4. The Developments Regarding Economic Social Services of General Interest 5. The New Temporary Framework on State Aid in the Context of the Coordinated Economic Response to the COVID-19 Outbreak Conclusions Case Law Bibliography Index