Greater Legal Security for Services of General Interest

Probably in the autumn, the commission wants to publish a new communication on services of general interest (SGIs). “SGIs are very important for democracy and social cohesion,” said Klaus Dauderstädt, chairman of the CESI committee for employment and social affairs (SOC), on 7th September in Berlin. The EU Commission seems to be seeking simplification, particularly in European public procurement law, which the CESI would warmly welcome. “The public contracting bodies need greater scope for decision-making,” Klaus Dauderstädt claims. This is the only way to achieve a higher level of legal security.

The Commission should expand the options to provide SGIs autonomously, fostering “in-house” operation and allowing for direct commissioning without European tendering,  Klaus  Dauderstädt points out. “Everything else would be contrary to the objective of the Commission to give public sector contractors greater power of discretion by means of decision-making,“ says the SOC chairman. Also for service concessions, the public sector needs far-reaching freedom of discretion. The CESI furthermore supports a rise in the de minimis thresholds for procurement not open to tender.

According to Dauderstädt, EU regulations should not impair inter-communal co-operation. “If SGIs are offered in a common, inter-communal, area, autonomous provisions for co-operative operation without tendering must be provided for.“ The question of control of the company and not that of legal form of the operator should  be significant for classification as an in-house operation in relation to subsidy regulations. “Unfortunately, case law of the CJEU is very dogmatic here, if a one percent private capital share is already enough to dictate tendering,” Dauderstädt says. This makes it all the more important for the European legislature to ensure a clear legal position. The CESI viewes with scepticism the efforts of the Commission to promote public-private partnerships (PPP). According to Dauderstädt, “it needs to be at the discretion of the tendering body whether such a PPP is sought.” The European regulatory framework should in practise not lead to favouring of certain operating models.