DEL SERVICIO PUBLICO AL MERCADO REGULADO: LOS SERVICIOS DE INTERES ECONOMICO GENERAL (SIEGE) COMO INSTRUMENTO DE TRANSFORMACION.

Maria Jesús García García

Resumen:

El concepto de servicio público de interés económico general (SIEGE) es un término acuñado en el ámbito europeo con el que se quiere establecer una nomenclatura común que incluya las diferentes fórmulas y soluciones que los estados han establecido y establecen para garantizar la satisfacción de los intereses generales y los haga compatibles con los principios del mercado interior y la libre competencia. El concepto no designa figuras o instrumentos jurídicos nuevos, sino que trata de establecer una nomenclatura común para todos los estados, capaz de aglutinar las tradiciones jurídicas que han venido aplicando los estados para satisfacer los intereses generales y los haga compatibles con las exigencias de un mercado interior. En nuestro ordenamiento jurídico, el concepto de SIEGE designa la nueva realidad jurídica que sustituye el concepto de servicio público en el ámbito interno y que implica la armonización de los mecanismos previstos para la satisfacción de intereses generales con las exigencias de la libre competencia y las reglas del mercado interior.

Abstract:

Services of general interest are services that public authorities of the EU member countries classify as being of general interest and, therefore, subject to specific public service obligations. They can be provided either by the state or by the private sector. There are three categories of services of general interest: economic, non-economic and social. Services of general economic interest, which are basic services that are provided in return for payment, such as postal services, transport or telecommunications. Non-economic services, such as the police, justice and statutory social security schemes. They are not subject to European legislation or to internal market and competition rules. Social services of general interest respond to the needs of vulnerable citizens and are based on the principles of solidarity and equal access. Social security, employment and training services, social housing, child care, long-term care and social assistance services are some examples. They can be both of an economic or non-economic nature depending on the criteria of member states and have a relevant impact on social, territorial and economic cohesion. The concept of services of general economic interest (SGEI) is a term coined by European Union Law aimed at establishing a common terminology which includes the different solutions that member states have established and set forth to ensure the satisfaction of the general interest in order to make certain economic activities compatible with the principles of the single market and free competition. The legal basis is to be found on the Treaty of Lisbon. The Treaty added a protocol on services of general interest and created the new legal basis which enables the European institutions to adopt regulations concerning the operation of SGEI under article 14 of the Treaty on the Functioning of the EU. Services of General Economic Interest include a wide variety of economic activities 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. To this end, public service obligations are imposed on the providers by means of an entrustment on the basis of a general interest criterion, which ensures that the service is provided to fulfil its mission. The concept does not designate new legal tools, but it seeks to establish a common definition to be applied by European Union member states, capable of bringing together the legal traditions that member states have been applying to satisfy essential economic activities and make them compatible with the requirements of the single market. Legislation passed at EU level has always balanced the need to increase competition and the use of market mechanisms with the need to guarantee that citizens have access to essential services of high quality at affordable prices. This has been the case, for instance, in the network industries from telecommunications and postal services to transport and energy. In the Spanish legal system, the idea of services of general economic interest describes a new legal term, which takes over the idea of public services. This implies the harmonization of the legal mechanisms intended for the satisfaction of the common good and the requirements of free The operator of the SGEI must be entrusted with a public service mission by way of one or more acts, the form of which will be determined by each Member State. The act must include the content and duration of the public service obligations; the undertaking and territory concerned; a description of the compensation and the parameters for calculating and controlling the compensation and the different arrangements for recovering any overcompensation, if this is the case. Such regulation has an impact on the functioning of the single market and draw a limit on public state aids, which are constrained by the European Union rules on competition, designed to ensure fair and equal conditions for businesses. For certain services of general economic interest to operate on the basis of principles and under conditions that enable them to fulfil their missions, financial support from the State is necessary to cover the specific costs resulting from the public service obligations. The Court of Justice held that public service compensation does not constitute State aid within the terms of Article 107 of the Treaty where four cumulative criteria are met (Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft Altmark.) First, the recipient must have public service obligations to discharge, and the obligations must be clearly defined. Second, the compensation must be calculated on the basis of a set of criteria which must have been established in advance in an objective and transparent manner by public authorities. Third, the compensation must not exceed what is necessary to cover all or part of the costs of the public service obligations, taking into account a reasonable profit. Finally, where the economic agent in charge of providing public service obligations is not chosen by means of a public procurement procedure, the level of compensation must be determined on the basis of an analysis of the costs that a well-run provider with the relevant means would have incurred. However, SGEI aid under €500,000 and over a three-year period is too small to affect competition and do not need to be regarded as State aid. Such aid falls within the scope of the SGEI De Minimis Regulation. In addition, the SGEI Decision exempts Member States from the obligation to notify public service compensation for certain SGEI categories to the Commission. Therefore, aid given under the SGEI Decision must be supported by an act of entrustment, for a period not longer than 10 years, unless a longer period is justified. Services of General Economic Interest have also an impact on the harmonization of contract Law through European Rules. As part of the methodology, this paper analyses European and internal Law and reaches the conclusion that the harmonization of member state legislation and the European legal system is a complex process in which member states have a wide range of legal options to meet the requirements of European Union legislation, since European Union Law leaves member states freedom to decide which activities are meant to be labelled as services of general economic interest and how these activities are to be organised in their internal legal systems. The only limits are those imposed by European Union Law in sectors which have been harmonised at Union level. This is the case with transport, energy, communications and postal service. In such, member states cannot contradict the rules governing such harmonisation. Other than that, manifest error of assessment is also a limit for member states, since European Commission and the Court of Justice of the European Union have the power to check the decisions made by member states. In spite of this, the margin of discretion enjoyed by the Member States is still wide, since European Union Law leaves European Union countries freedom to decide whether a given economic activity falls into the category of Service of General economic interest or no, aside from the exceptions above-mentioned. Member states have also freedom to decide how they organise SGEIs.