The End of Contentious Politics?
The Sectoral Withdrawal on Social Services
After the adoption of the Services Directive and the impossibility of putting a Framework Directive on the legislative agenda, the SGI regulation as a broad, intersectoral and political issue was abandoned. Instead, policy makers engaged with a further fragmentation of the notion of SGI, which meant a further sectorizing of policy making. This sectorizing was reflected in four ways: (a) the forging of and focus on the category of SSGI; (b) a reform of state aid rules directed at SSGI; (c) the introduction of soft law in the realm of SSGI; and (d) the corresponding sectorizing of interest representation.
After the contentious debate over the Rapkay report on the Commission’s White Paper on SGI in 2006, the dialogue among the EU institutions was recalibrated: since a majority of decision makers were not favourable to a general framework, it was clear that network industries were definitely regarded as belonging to the market realm and regulated through sectoral liberalization directives. Hence, the perimeter of the debate was to be confined to the myriad of—potentially local—social services which were less compatible with a market approach. To this end, the notion of social services of social interest was created: it covers complementary social security schemes, social assistance to persons in need, employment and training services, social housing and long-term care; healthcare is dealt with separately. Typically, while network industries and sectoral liberalization is handled by the Commission’s DG MARKT, SSGI would remain the parameter of DG for employment and social affairs
(DG EMPL). In a communication appended to its strategy for ‘The internal market for the 21st century’ from 2007, the Commission nevertheless reasserted the exclusive market approach even to SSGI. First, it made clear that the category of SSGI did not overlap that of non-economic SGI which only covers ‘traditional state prerogatives such as police, justice and statutory social security schemes’ (European Commission 2007b, p. 4) and remains outside of the scope of application of EU law. Rather, ‘social services can be of an economic or non-economic nature depending on the activity under consideration’ (ibid., p. 5).
From a policy making point of view, the main initiative of the Commission has been a commitment to address criticism from local and national public authorities by relaxing competition rules (i.e. state aids) applicable to SSGI. The reform of the so-called Monti-Kroes package from 2005 took until 2012 to be implemented in the incarnation of the Almunia package. Although it is too early to assess the effects of the reform, the new rules provide more flexibility for local and social SGI, mainly by granting them derogation from notifying public financial support to the Commission; but at the same time, they also bring about more complexity in other respects. More particularly, the more stringent control by the EU Commission on the definition of SGI, on whether it is provided in an efficient way from an economic point of view, and to what extent public compensation may distort cross-border competition is contentious, and shows that the line between Member State and EU competences remains blurred (van de Gronden 2013).
In addition to the revision of state aids rules, soft law has been introduced. The forum on SSGI was created and held for the first time in Lisbon in 2007. It brought representatives from all EU institutions together with interest groups and stakeholders. At the first forum, the Commissioner for employment and social affairs, Vladimir Spidla, stated boldly that, sooner or later, the EU would adopt a Framework Directive on SGI. He was contradicted by the Commission President himself soon after. The second forum was held in France in a context where the French government had fully abandoned its claims for a horizontal framework on SGI, and the Commission still denied that competition rules were problematic.
The fact that an official from DG MARKT was displaced to DG EMPL to deal with SSGI is telling in this regard. The third forum on SSGI could only be organized because of the 2010 Belgian Presidency’s activism. The main output of the forum was the elaboration of a common quality framework for SSGI, which constitutes a set of rules (see Box 4.2) that can be adopted and implemented voluntarily by the Member States.
EPSU has underlined that the EU Commission advocated nonmandatory quality standards but made no proposition as to how the existing legal provisions (the Charter of Fundamental Rights, the Protocol 26 on SGI and the Article 14 TFEU) could be used in order to tackle
Box 4.2. Contents of the common quality framework for social services (contents)
THE CONCEPT OF SOCIAL SERVICES QUALITY PRINCIPLES FOR SOCIAL SERVICES Overarching quality principles for social service provision Quality principles for the relationships between services providers and users
Quality principles for the relationships between services providers,
public authorities, social partners and other stakeholders
Quality principles for human and physical capital
ELEMENTS FOR A METHODOLOGY TO DEVELOP
Cross-country comparability Data availability Responsiveness Conclusions
Source: European Commission, www.ec.europa.eu, date accessed 29 November 2015
problems related to SGI provision (EPSU 2012). The Belgian Presidency, together with some MEPs (notably Proinsias De Rossa, rapporteur on SSGI), tried to relaunch the political dynamic on SGI and had secured the support of all major political groups within the EP for the creation of a high-level group on SGI. But the initiative met with the resistance of most Member States as well as the Commission. Since the third forum on SSGI under the Belgian Presidency, no further presidency of the Council has agreed to organize the forum again.
This circumscription to the issue of SGI to SSGI was clearly accompanied with a similar sectorizing of interest groups as well as an adaptation to the marketization of their activity. After the adoption of the Services Directive, the third sector organizations and groups which had campaigned for the adoption of a Framework Directive on SGI decided to set up a lobby, called Collectif SSGI, focused on SSGI, which they claim as a major strategic move:
The CollectifSSIG arose from the now general awareness that the rhetoric assertion of subsidiarity and the non-economic nature of social services was now behind us and that there was no other choice than collectively enter the fortress of European law to achieve the recognition of our specificities (...) and with one common objective: sectoral clarity. (SSIG 2006, pp. 8—9)
Since then, the idea has grown among the representatives of the sector that they had to adapt and find their place in the market framework provided by the EU, as the following statement shows:
After working for eight years on this issue and lobbying for a Framework Directive, I now think that this claim makes no sense (...) Representatives of SSGI are convinced that they are right, like union members, but they are in the clouds, they don’t stick to reality. They spend very little time in Brussels (...) But there has been significant change: at the outset, they were not even aware that they are economic actors (...) organizations that provide social services are economic actors, market actors.
Similarly, a main representative asserts:
At the time, I thought that a Framework Directive was the way to discuss SGI as a global issue. We did not master all the instruments, all the intricacies of EU law. Meanwhile, there has been a recognition of SSGI, much progress has been made since then. Today, the consolidation of a single directive would be impossible. There are different legal bases. The incorporation in a single legislation would be too difficult. It is difficult to see what its added value would be.
Thus, there is evidence that even the most pro-active advocates of a global re-regulation of SGI have over time converted to sectoral integration, relying on the market paradigm and enforced through the intricacies of EU law. This is in tune with the literature on the professionalization and bureaucratization of interest representation in the EU (Saurugger 2008).