Home Education Higher Education Institutions in the EU: Between Competition and Public Service
If public services are regarded as economic, the competition rules have to be complied with unless they can be exempted as SGEIs by Article 106(2) TFEU. However, SGEIs are not a straightforward concept and confusion has arisen in many areas.
The term SGEIs is, itself, bewildering, since, despite the word ‘economic’ being part of the term, the interest behind those services is public rather than economic. The criterion ‘economic’ refers to the fact that these are economic services to start with, as otherwise they would not fall under competition law and thus would not need to be exempted. The term ‘services of general interest’ (SGIs) is used as an umbrella category for SGEIs and non-economic services by the Commission. According to Hatzopoulos the notion of SGIs seems to correspond with the French ‘service public’ and the ‘overriding principles of general interest’ established as a justification in the field of the free movement provisions. The terms ‘public services’ and ‘public service obligations’ are not used by the Commission, as it deems them ‘ambiguous’. Yet, ‘public services’ is used as a term by the Court and in literature in the same context as SGIs or SGEIs. The main characteristics of SGIs are universality, equality of access, a certain level of quality, continuity and a public aim.
Additionally, a new category, called ‘social services of general interest’ (SSGIs), was introduced by the Commission in the early 2000s. The definition of SSGIs is still rather disputed. In its Communication from 2006, the Commission states that ‘in addition to health services, which are not covered by this communication, we find two main categories of social services’. These categories are, according to the Commission, social security schemes and ‘other essential services provided directly to the person’. In a footnote to the latter category the Commission explains that ‘education and training, although they are services of general interest with a clear social function, are not covered by this Communication’. This vague definition has led to different interpretations in the literature; whilst some believe health and education are included in the definition others argue in favour of separate categories, namely health services of general interest (HSGIs) and education and training services of general interest (ETSGIs). Either way, it seems that SSGIs (and, if separate categories, also HSGIs and ETSGIs), comprise services which have a social aim in the broader sense. In them, Member States have primary competences and they are often traditionally regarded as non-economic, but have recently also sometimes been categorised as economic. These services thus seem to contain the unclear cases and seem to be situated somewhat in the middle of SGEIs and noneconomic services with overlaps into both. The question of whether or not such services fall under the competition law regime, however, still depends on their classification as economic in nature.
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