Les services sociaux d’intérêt général

The topic of social services of general interest (SSGIs) is now firmly anchored in the Community debate (v. The topic of social services of general interest (SSGI) is now well established in the Community debate (see this review No. 3-2009, Public Sector column, on the conclusions of the Council of the European Union of 25 May 2009 on social services), it seemed logical that the French national representation should take up the issue in turn, if only to take a position on the latest developments in the doctrine of the European Commission on the place in the EU of public services or services of general (economic) interest, (SI(E)G), in the appropriate terminology of the EC Treaty and Commission communications); but also on the results of the interministerial mission on "taking account of the specific characteristics of services of general interest in the transposition of the Services Directive and the application of Community State aid law" (cf. report by Michel Thierry, Inspection générale des affaires sociales, January 2009, La Documentation française, March 2009).

The information report prepared under the aegis of MPs Caresche, Forgues, Lecou and Rosso-Debord is structured around three parts. The first part recalls, in the same spirit as that which inspired the above-mentioned Council conclusions of 25 May 2009, that SSGIs are first of all "a key element of the European social model", given their essential place in the economy and in employment, stressing in passing that they thus play "an essential shock-absorbing role in the current crisis". But it is also an opportunity for parliamentarians to stress what they consider to be "a privileged area for the expression of (diversity)". of the European social model, particularly in view of the very different level and distribution of financial effort in favour of the social sector between Member States, the varying degrees of involvement of the public sector, as well as the third sector and the private for-profit sector (as illustrated, for example, by the long-term care sector) and the varying degrees of public beneficiaries (the example of social housing being particularly significant in this respect). From this comparative analysis, it is not surprising that it emerges that France stands out for its broad conception of SSGIs, with organisational arrangements based on a major contribution from the third sector and with substantial funding from the voluntary sector in return for its missions.

The second part of the information report goes beyond the hexagonal framework to look at the state of positive Community law applicable to SSGIs. It is also the part that collects regrets. MEPs first of all deplore the "late recognition" of the specific characteristics of SGIs in the EC Treaty and a "purely doctrinal identification" of SSGIs and consider the original, essentially contentious legal framework for SSGIs to be unsatisfactory, on the grounds in particular that it is "shared with other SGEIs, based on competition rules, very complex" and that it "does not offer real legal certainty". The burden is severe, in particular on the Commission. The launch of its on-line interactive information service on SGIs is presented as "an implicit admission of the inadequacy, particularly for SSGIs, of the current rules". Its "Monti-Kroes" package, on the question of public service compensation under the Community rules on state aid, is admittedly described as appreciable, but considered to be "complex, disproportionate and insufficiently secure". Finally, the Commission is also criticised for not having taken a strong initiative to respond to political demands and for having made numerous announcements of clarification which "have not been acted upon". However, the parliamentary report has the honesty not to cover the Commission alone with all the evils. The Community legislator itself is also targeted, to reproach it for its intervention on the occasion of the adoption of the Services Directive (Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market: v. ConcurrencesNo. 3-2006, Public Sector Review, p. 157) which proved to be "limited to an ambiguous exclusion from the scope". As for the Member States, it has to be said that no consensus is emerging within them on the subject, which is still being debated.

How, therefore, can we move this debate forward? The third part of the information report attempts to provide some elements of an answer to this question, both at national and Community level. With regard to the national prism, the honourable Members rightly, in our view, call on the French legislator to improve the application of Community rules when implementing the Monti-Kroes’ package and transposing the Services Directive. Specific proposals are made to this end. Three of them, among others, are worthy of note: choosing a pragmatic and broad approach to the concept of a mandate for SGEIs; giving content to the concept of recognised charity as provided for in the exclusion of social services referred to in Article 2(2)(j) of the Services Directive; and adapting the current rules on control and transparency to the Community monitoring of public service compensation. As for the Community approach, the report calls for "a political demand for clarification and recognition" which could eventually justify intervention by the European legislator, after, however, having subjected the principle to a "concerted subsidiarity test" in the framework of the Conference of Parliamentary Committees for Community Affairs (COSAC). This position is not new, if we recall the debates that fuelled, in particular, the referendum campaign on the Treaty establishing a Constitution for Europe in 2005, when the advisability of adopting a framework directive on SGIs was discussed at length. Of course, it takes on a new dimension in the light of the Lisbon Treaty with the revision of Article 16 EC and the insertion of a protocol on SGIs (cf. ConcurrencesNo. 4-2007, Public Sector column, p. 143). This is enhanced by a particularly welcome proposal in this period of renewal of the European Commission: "to create within the (new) European Parliament, a political dynamic so that the personalities planned to be European Commissioners can set out, at their prior hearing, their views on SSGIs and, beyond that, on SGIs". Let us hear it loud and clear...