WHAT IS THE STATUS FOR SOCIAL SERVICES IN THE EUROPEAN UNION ?
Arguments for non-economic social services of general interest [1]
In European Union law, the status of services of general social interest (SGSI) is uncertain and debatable. Vaguely defined and, with few exceptions, assimilated to businesses providing economic services, they struggle to find their rightful place.
The liberalization of all activities, including services, has been taking place since 1957 through various legal instruments, supported by the General Agreement on Trade in Services of the WTO. For social services, the most significant issues are the generalization of a contingent logic of provision that undermines any form of partnership, leading to a reduction in the legitimacy of associative initiatives[4], an unprecedented revolution in management borrowing from for-profit private enterprises, and the opening up of entire fields of the social and medico-social landscape to commercial operators, as well as a serious alteration of the intervention clinic..
This liberal overdetermination diverts the meaning of the general interest intended for beneficiaries in favor of productivist logics aimed at financial gain, relegating the insolvent to compassion and private charitable initiatives. This reformatting engulfs the social-democratic contract, the values of public service and cooperation among partners, as well as the practices of social work..
This evolution is certainly not irreversible, but on the condition of another doctrine that gives more substance to the notion of exclusively social activities formulated by the Court of Justice of the European Communities (Poucet and Pistre ruling). For this, within the generic set of services of general interest (SGI), it would be necessary to extract the SSIG from the services of general economic interest (SGEI) in which they are confined and (re)classify them in the category of non-economic services of general interest (SNEIG).
To this end, we will successively examine the contingency of community law, the main arguments drawn from its contradictions, the negative effects of markets on social action and their possible corrections, to conclude with the necessary modification of the balance of political forces to achieve this.
1. Contingency of Community Law
The contingency of community law[5] primarily results from its overdetermination by the liberal economy, which is itself underpinned by the ordoliberalism that founded the European construction[6], but also from the permanent compromise between different national projects and the political formations present.
It also stems from the pragmatic construction emanating from the Court of Justice, filling, on a case-by-case basis, the conceptual gaps with statements reflecting the essentially market-oriented vocation of the Union. In this sense, some[7] observe a shift in the philosophy of this institution; moving away from classical ordoliberalism, it would tend towards a primary objective of financial profits, more in line with the economic thought of the Chicago school[8]. Hence, there is a tension between historical ordoliberalism and the current radicalized neoliberalism.
This pragmatism concerns elected officials and public authorities of the member states regarding shared competencies, the principle of subsidiarity, the euro compatibility of regulatory and funding modalities, the complexities of applying community rules, and the fears of reclassifications in case of a manifest error. This results in cautious behaviors, excessive recourse to public service markets favoring the lowest financial bid while claiming to save quality through the magic of specifications. It also facilitates the opening of the social market to profit-driven operators, at the risk of eliminating associative actors who are effective but less competitive in tenders.
In a context of difficult public funding, this culture of competition leads some cash-strapped public authorities, even when they are not ideologically aligned with this liberalization, to offload responsibilities through public service delegations in favor of private operators who charge their clients.
1.1. Ordoliberalism
The invisible foundation of European construction since 1957, the ordoliberal model has been continuously consolidated since then. Various treaties have implemented it through the derived law produced by the Commission and co-decided by the Parliament and the Council; all of this is interpreted by the European Court, whose rulings and jurisprudence significantly contribute to the realization of the internal market[9]. This whole constitutes the European doxa [10] on which minority arguments aspiring for another Europe fail.
Ordoliberalism, rarely named or often ignored, results from the German imprint during the negotiations of the Treaties of Rome. "The most powerful partner managed to impose essentially its point of view... the others, particularly France, obtained only partial concessions. As a result, it is primarily the German model that is realized at the European level, with the four central elements of the competitive system advocated by ordoliberalism: free and open internal and external markets, primacy of competition rules in structural policy, and primacy of monetary policy as well as discipline of budgetary policy in macroeconomic policy..." [11]
This affiliation is strongly claimed by former European Commissioner Frits Bolkestein, former president of the Liberal International, author of the services directive, for whom: "the thought of Euken (father of ordoliberalism) and his solutions remain relevant. The conceptual framework he developed is still used in European competition policy..." [12]
1.2. The social market economy
Inherent to ordoliberalism, the social market economy, typical of the Rhine model, primarily aims to establish a free market intended to bring about economic and social progress. In practice, the stated objectives are expressed either in terms of a common market in the EEC and then EC treaties, or in less unpopular terms of social market economy in the constitutional treaty and then the Lisbon Treaty in 2000, with the goal being the same. The highly competitive social market economy decided in Lisbon remains the Union's priority, supported by the Monti report in 2010, which was unfavorable to the inclusion of a social progress clause in the treaties. It is currently the essential instrument of the Single Market Act project launched by the Commissioner for the Internal Market, Michel Barnier.
If the social market economy designates a constant objective, the elusive compromise that underpins it nonetheless leaves room for a reversal of doctrine aimed at extracting the SSIG from the market sphere and locking access to market operators.
This goal is difficult to achieve because services account for 70% of the GDP of member states (including 9% for social and health services), and their margin for improvement is a key objective of European policies set by the Lisbon European Council in 2000, a priority relaunched in 2005 up to the Europe 2020 objective: A strategy for smart, sustainable, and inclusive growth [13].
It is within this Lisbon strategy that the directive concerning services in the internal market, dated December 12, 2006, known as the services directive, is situated, for which a rare majority was required in the European Parliament to exclude certain social services.
In the community classifications[14], services are indeed classified solely based on the economic criterion: General interest services (SIG) are services, whether economic or not, that public authorities consider to be of general interest and therefore subject to specific public service obligations. General economic interest services (SIEG) are services of an economic nature mandated to fulfill public service obligations. Social services of general interest (SSIG) are determined according to two main groups: on one hand, legal schemes and complementary social protection schemes, and on the other hand, other services provided to individuals, with benefits being considered as economic activities. Finally, non-economic general interest services (SNEIG) are those carried out without economic compensation, by the State or on behalf of the State, within the framework of its missions. This absence of economic compensation can only be assessed on a case-by-case basis by the Commission, and it is not currently possible, according to existing doctrine, to determine an ex ante classification. These different definitions, however, remain very vague.
The objective of demarcating social services from the market is therefore doubly complicated to justify because, on the one hand, it challenges the neoliberal ordoliberal doctrine and, on the other hand, it always raises fears of introducing a grain of sand into the engine of economic growth. Moreover, it is a source of public spending, even increases in such spending, contrary to the newly imposed drastic reductions.
2. Arguments drawn from the contradictions of community law
The imprecision of the status of social services in community law results from a legal construction subject to casuistic interpretations that have the effect, if not the aim, of reinforcing their inscription in a more or less long-term hegemonic market logic. However, there are elements conducive to their demarcation. These can be found in the three constitutive areas of their identity: their non-profit character, their objective dedicated to the general interest, and their implementation modalities (mandates).
2.1. About the non-profit nature of social services
1- The statistical classifications of economic activities produced by the UN (CITI) and by the statistical classification of economic activities in the European community (NACE) do not distinguish between market and non-market activities, even though it is stated that the distinction is important in these systems [15]. Social activities are listed in detail under several headings (nos. 87 & 88).
On the other hand, for the WTO, which aims at the general liberalization of services (GATS), social services, although listed in the nomenclature (reference: 8 C-933), may not be affected. Article I-3 indeed excludes services provided in the exercise of governmental authority, meaning those that are not provided on a commercial basis or in competition with other providers. Social security activities and other public health and education services not provided under commercial conditions are good examples of this. The criterion of non-profit motive is visible here, associated with that of mandate (the notion of exercising governmental authority) even if social services are not explicitly named; this is reinforced by a 1998 communication from the Council of Trade in Services on health and social services indicating that they involve an interaction between a multitude of objectives, influences, and constraints, both economic and non-economic (p. 2).
2- Even though the issue of SSIG has a transnational scope, one cannot erase national specificities, especially since social policies are shared competencies, with their implementation, funding, and controls remaining the responsibility of each State under the principle of subsidiarity[16]. Moreover, the social aspect is a constitutional principle stated in the first article of the Constitution, under which France is an indivisible, secular, democratic, and social republic. The "realized social" thus finds a strength superior to the governmental power mentioned by the WTO and echoed in the EU doctrine. In this case, can the priority question of constitutionality (QPC) not be raised?
3- At the community level, the integration of social aspects into economic activities does not take into account its non-profit nature. Indeed, the European Court has ruled, in at least two judgments[17], that any activity consisting of offering goods or services in a given market constitutes an economic activity. This conception overlaps with that of a business, namely: any entity engaging in economic activity, regardless of its legal status and mode of financing[18]. According to the Pavlov ruling in 2000, the absence of a profit motive as well as the elements of solidarity invoked[19] are not sufficient to remove its status as a business (point 117). Finally, the Bond van Adverteerders ruling of April 26, 1988, reminds us that Article 60 of the treaty does not require that the service be paid for by those who benefit from it (point 16).
These various rulings help to establish, by extension, the economic nature of most social services and their classification as services of general economic interest.
However, there are others, rarely mentioned, that qualify this statement:
-The Fenin judgment (T-319/99) in which the court held that organizations fulfilling an exclusively social function, based on the principle of solidarity and lacking any profit motive, are not businesses.
-The Selex judgment (C-113/07 P - point 70), 2009, where the Court recalls that by their nature, the activities of Eurocontrol are typically prerogatives of public authority that do not have an economic character.
4- If these various rulings do not specifically target social services, there is nonetheless an argumentative pathway that broadens the effects of certain decisions to the social sector.
The Humbel judgement (263/86), 1988, stating that there is no economic consideration in the case of courses provided within the framework of national education financed by the public budget.
Wirth judgement, C-109/92 the Court ruling that secondary education followed in the context of national education cannot be qualified as service.
The decision of the EFTA supervisory authority (39/07/COL) on the public financing of kindergartens in Norway in 2007 extends the scope of the Humbel judgement to the early childhood preschool sector without being challenged by the Commission, which cites it as an example in the Guide to SGEIs and in particular SSIGs (p. 25).
The decision of the Commission (N118/00), 2001, in response to a French request regarding the status of grants allocated to professional sports clubs with training centers. According to the French government, the fundamental objective is to continue an education that combines academic and sports aspects, community engagement in neighborhoods, and violence prevention. According to the Commission: support for the civic, academic, and sports training of young people can be considered an action that falls under the general missions of the State in the field of education, thus outside the scope of competition. Therefore, support for these measures would not constitute aid within the meaning of Article 87-1 of the EC Treaty, as the notified scheme concerns education and initial training. Consequently, in accordance with the provisions of Regulation 68/2001 of the Commission relating to the application of Articles 87 and 88 of the EC Treaty to training aid and more specifically its 6th recital, these measures do not fall within the scope of Article 87. Furthermore: actions for violence prevention and community engagement in neighborhoods defined by the French authorities as being of general interest can be assimilated to measures of citizenship education in the broad sense, which are among the general missions of the State. As a result, the Commission has decided that the grant scheme notified by the French authorities does not constitute State aid.
5- The Sodemare ruling, 1997, specifically concerns social services. It states that Articles 52 and 58 of the EC Treaty do not prevent a Member State from allowing only non-profit private operators to participate in the realization of its social assistance system by entering into agreements that entitle them to reimbursement of the costs of health-related social assistance services. The necessary condition of non-profitability for the execution of a social service function, supported by the Lombardy region, a party to the dispute, is reiterated in point 31 of the ruling: According to the Italian government, the condition of absence of profit motive proves to be the most coherent means in light of the exclusively social purposes of the system in question. The choices made regarding the organization and provision of assistance by non-profit private operators would not be influenced by the requirement to generate profits from service provision so that these operators prioritize social purposes.
6- The services directive clearly indicates that in order to provide certain services in the social field, the Court of Justice has already accepted that it may be justified to subject the provider to the requirement of not pursuing a profit-making objective (ref. 71), a point confirmed by recitals 73 acknowledging that the important missions related to social and territorial cohesion conferred on the SIEGs require certain demands from the member states, notably to be a legal entity, a non-profit entity. The directive further specifies that it should not affect the principle of universal service as it is implemented in social services (ref. 28). It also states that insofar as the service is still essentially funded by public funds, these activities carried out by the state or on behalf of the state, in the context of its missions in the social, cultural, educational, and judicial fields do not fall within the scope of this directive (ref. 34). Therefore, it seems that the foundational remuneration condition of the notion of service, assessed based on the existence of an economic counterpart, is tempered as soon as there is public funding.
Finally, the same directive excludes from its scope non-economic services (2-2a), healthcare services (2-2f), social services related to social housing, child assistance, and support for families and individuals who are in a situation of need, either permanently or temporarily, which are provided by the State, by providers mandated by the State, or by charitable organizations recognized as such by the State (2.2j). For the Commission, social services are only intended for the most disadvantaged, which reflects a heavy ideological bias with significant consequences.
7- Various other texts of a legal and/or doctrinal nature emphasize the non-profit character of social services based on the principle of national solidarity to exclude them from the commercial sphere:
The comment contained in interinstitutional file 2004/0001 (COD) between the Commission and the Competitiveness and Growth Working Group 2004, on social security schemes indicates that the main characteristic of remuneration lies in the fact that it constitutes the economic consideration for the benefit in question, a counterpart normally defined between the provider and the recipient of the service. The Court held that such a feature was lacking in the case of courses provided under the national education system. By establishing and maintaining such a system, the State does not intend to engage in paid activities, but fulfils its mission in the social, cultural and educational fields towards its population. The system in question is, as a general rule, financed by the public budget and not by students or their parents (page 3, 4 e para.). This text, admittedly non-binding, also seems to mitigate the scope of the Pavlov and Bon van Advertisers judgements, yet presented as irrefutable by the Community dox.
The communication of the Commission Implementing the Community programme of Lisbon. Social services of general interest in the EU COM (2006) 177 final recalls that the functioning of social services is based on a principle of solidarity (page 4) and that one of their characteristics is the lack of profit-making to address the most difficult situations by an asymmetrical relationship between providers and beneficiaries that cannot be assimilated to a normal supplier-consumer-type relationship thus requiring the participation of a third-party payer (page 5).
The (re)classification of social services as non-economic services based on their non-profit nature therefore seems to be an argument not suspect of being partisan.
2.2. On the general interest, exclusive vocation of SSIG
In EU law, the general interest is an important legal and political element that allows for exceptions to the principle of the prohibition of state aid. Its determination is solely the competence of the member states, provided that it does not violate community rules. It is also the main criterion for the implementation of subsidiarity in a politically fluid environment, with risks of reclassifications or even sanctions.
Article 107 of the TFEU[20] summarizes the economic philosophy of the EU: Unless exceptions provided for by the treaties, aid granted by States or through State resources that distort or threaten to distort competition is incompatible with the internal market.
Article 106-2 tempers this prohibition to allow, as an exception, member states to fulfill their general interest obligations: Companies responsible for managing services of general economic interest are subject to the rules of the treaties, particularly the competition rules, to the extent that the application of these rules does not hinder the legal or factual fulfillment of the specific mission assigned to them.
Only the companies responsible for services of general economic interest (SGEI) are therefore targeted, while non-economic services of general interest (NESGI) fall outside the scope of community competencies.
The services directive considers, for its part, that services of general interest are not covered by the definition in Article 50 of the treaty and therefore do not fall within the scope of this directive (recital 17).
It is up to national and local public authorities to determine their services of general interest (SGI) that allow for exemptions based on imperative reasons of general interest. This concept, resulting from a gradual and still unfinished development by the European Court of Justice, covers, among other things, the maintenance of social order, social policy objectives, the protection of service recipients, and the protection of the proper administration of justice, all of which concern social services acting in the context of social assistance and juvenile judicial protection. The services directive complements the above enumeration by adding the necessity to ensure a high level of education (recital 40).
Some rulings of the European Court contain provisions confirming the exemption of services of general interest from competition and market rules. Thus, in the Corbeau C-320/91 ruling of 1993: Member States may grant companies, which they assign the mission of general economic interest, exclusive rights that may hinder the application of the competition rules of the treaty, to the extent that restrictions on competition, or even an exclusion of all competition, are necessary to ensure the fulfillment of the specific mission entrusted to the companies holding exclusive rights (point 14)[21]. According to the 2004 White Paper of the Commission (non-binding act): the effective fulfillment of a mission of general interest prevails, in case of tensions, over the application of the treaty rules (point 3.2).
In summary, as important as it is, the notion of the general interest remains subject to different interpretations. It oscillates between two visions: one Anglo-Saxon, utilitarian, resulting from the sum of individual interests regulated by the market, and the other, voluntarist, transcendent, in the French republican tradition under the authority of the State, an entity of cooperation of public services organized and controlled by the government according to Léon Duguit. However, this approach, which goes beyond the sum of individual interests, struggles to maintain its authority in a community law serving the market social economy. Furthermore, the divide is not only between these two visions but also among political formations, those that claim, adapt, or resign themselves to the rules of liberalism, both ordoliberal and neoliberal, and those, until now in the minority, wanting to substitute other foundations for the Europe of peoples. The former strive to pragmatically modulate the existing rules through the search for compromise within the liberal paradigm, which impacts the notion of the general interest, unbeknownst to the ground actors, leading to a liberalization of all services, including social ones, demanded by employers and encouraged by the WTO.
It is in this confined space, constantly shrinking, uncertain, threatened, poorly defended, that the missions of general interest conferred to social services are situated. However, there are certain margins that allow for the protection of social and educational actions, compensating them fairly through taxes and not through price or charity.
2.3. In the complexity of implementations (mandates, funding)
Rarely used in French law, the term "mandatement" has emerged due to the obligations arising from compliance with European rules as well as the excessive use of public procurement procedures.
The euro compatibility of state aid, by way of derogation, stems from the Altmark ruling C-280/00, 2003, and the provisions grouped in the Monti-Kroes package, 2005. It only concerns services of general economic interest (SGEI).
In the Altmark ruling, the mandate is a mandatory condition for granting state aid, which thus becomes compensation. It is an official, prior, and prescriptive act through which the public authority assigns the responsibility for executing a given mission to a company. It can take various forms but must explicitly specify the exact nature of the mission, the duration and scope of public service obligations (PSOs), and the identity of the companies involved.
§ The Altmark ruling imposes 4 cumulative conditions:
The beneficiary company must be effectively tasked with clearly defined public service obligations.
The parameters on the basis of which the compensation is calculated must be clearly established in an objective and transparent manner.
Compensation shall not exceed what is necessary to cover all or part of the costs incurred by the execution of public service obligations, taking into account the related revenues and a reasonable profit. Overcompensation is prohibited beyond a justified margin of 10%.
When the choice of the company to be entrusted with the execution of OSP is not made within the framework of a public procurement procedure, allowing for the selection of this candidate at the lowest cost to the community, the level of compensation must be determined based on an analysis of the costs of an average company, well-managed and adequately equipped with means of transport[23].
§ The Monti-Kroes package groups three texts related to public funding provided as compensation for SGEI, according to which certain state aids that do not meet the 4 conditions of the Altmark ruling are nevertheless considered compatible with the market and exempt from prior notification to the Commission if:
The compensation amounts to less than 100 million € (excluding VAT) over the previous two financial years and does not exceed 30 million € per year (de minimis thresholds), with no ceiling for hospitals or social housing companies.
The mandate specifies the nature and duration of the OSP and pertains to a SIEG determined by the contracting authority. The requirement of necessity and proportionality must also exist. In the event of a manifest error, the entity responsible for carrying out the specific mission must reimburse the amounts paid.
If the above requirements are not met, prior notification must be made to the commission, which will assess the impacts on competition.
The injunctive nature of these rules and the obligations for their application have raised—and continue to raise—concerns and hostilities in France and, to a lesser extent, in Germany. For field operators and national public authorities, there is a need to clarify and proactively supplement them with a legal instrument that secures the SIGs rather than exposing them to the sole casuistic interpretations of the Commission and the Court. Many stakeholders also demand the exclusion of early childhood services, home care, continuing education, and popular leisure activities from the market scope where they are maintained by the services directive. However, few have gone so far as to request the reclassification of SSIGs into SNEIGs. But for the Commission, the Council, and the parliamentary majority, there is hardly any need to add a text to the clear and complete texts for those who know how to read them! [24]
.
In summary, mandates with induced financial effects are important elements of the composition (or decomposition) of social services. Again, there are spaces that allow for the subtraction or proper distancing of these from the top-down logic inspired by liberalism.
3. Negative effects of markets on social action and possible corrections
The direct or transposed European rules sometimes negatively impact the national administrative frameworks. Regarding social action in France, it is useful to clarify the legal and financial situations in which it takes place while highlighting the securities that can be ensured.
§ A public contract is a contract concluded for a fee that meets the needs of the administration. In this case, the public authority purchases a service from a third party chosen after an open or limited tender process to pre-selected candidates based on their specific competencies (exclusive rights or special rights). Social services as providers fall under public service contracts according to Directive 2004/18/EC - Annex II B category 25.
§ A public service delegation is a contract by which a public authority entrusts the management of a public service for which it is responsible to a delegatee whose remuneration is substantially linked to the results of the operation of the service.
§ A grant, initiated by a third party, consists of a financial contribution from the public entity to an operation justified by the general interest. In France, its payment is in most cases subject to the existence of a (multi)annual objectives agreement.
In the social and medico-social sector, these different modalities allow for the financing of missions of general interest to establishments and services of varying statuses (law 2002-2).
Ceux fonctionnant en régie, dans le cadre des administrations d’État ou locales ou bien ceux in house , situés à l’extérieur pour lesquels les pouvoirs publics assurent un contrôle équivalent à celui effectué dans leurs propres administrations ne sont pas concernés. Ils sont hors-marché. Le statut in houseest un concept encore relativement vide, la Cour européenne se réservant de l’apprécier au cas par cas. Les deux conditions cumulatives (un contrôle similaire et le fait d’être le principal destinataire de l’activité) semblent pertinentes dans le domaine de l’aide sociale à l’enfance, de la protection judiciaire, par exemple. Les financements qui en résultent sont hors marché et s’intitulent contrats de prestations intégrées ou contrats in house .
Many of those that operate through daily rates, daily packages, or global allocations fall under a modality of public expenditure transfer engaged in accordance with legislative or regulatory provisions, which, according to the French Court of Auditors in 1998, is analyzed as a pricing system for health or social services. They are funded by public funds or similar (Social Security), and the set price is enforceable against third-party payers, in order to finance the exercise of mandates conferred by civil and/or judicial authorities (in the field of educational assistance, juvenile delinquency). These are mandatory expenditures, allowing for proper implementation by a specialized service that is authorized or accredited. What about the euro-compatibility of this mode of financing? Does the non-existence or extreme rarity of doctrinal exposition on this point, as well as the continuation of pricing in this manner, mean that there is no problem?
Those, relatively fewer in number, relying on funding through grants (clubs and specialized prevention teams, etc.) are in a more critical situation. According to the Prime Minister's circular, they must enter into a multi-year agreement of objectives aligned with national and/or local social policy objectives. The initiative lies with them, even when responding to a call for projects that define general objectives realized through the associative project. In practice, these services are more subjected to open tenders in competition and faced with the lowest financial bids, to the detriment of the quality of services provided.
Those who can only provide services following open or pre-selected tenders under exclusive or reserved rights related to their specialized skills (continuing education organizations, RSA support services, early childhood care facilities, home assistance services, popular education) are severely impacted by the opening of the market, risking losing their way or having to adjust their exclusively social missions.
For the services falling under the last two categories, are they experiencing the effect of a conjunctural insecurity resulting from the ambiguity of community rules, or is it a fundamental trend incorporating competitive neoliberalism as a "best practice" for social implementation?
3.1. Legal Aspects
The pressure exerted by various national and European bodies and movements has, to date, vainly called for the rapid and clear enactment of a securing legal instrument. However, despite numerous meetings among all concerned parties, the Council and the Commission remain steadfast in their position, possibly considering some marginal concessions based on the mutual assessment of the impact of the services directive and the Monti-Kroes package, without committing much through the Green Paper (note 23).
The implementation of Protocol No. 26 on the PSOs annexed to the Treaty of Lisbon and the realization of Article 14 of the TFEU have sparked another initiative led by the intergroup on public services of the European Parliament, open to stakeholders representing civil society. Each party strives to assert its viewpoint, with very unequal lobbying. The minority thesis advocating for the (re)classification of PSOs among the SNEIG encounters a majority position aiming for "realistic" adjustments to the community legal framework[27].
In addition, the protocol demanded by Holland is currently (January 2011) sparking a parliamentary mobilisation, not yet majority, against the Commission and its narrow vision on social services intended only for disadvantaged people and vulnerable groups. This fundamental controversy[28] raises the double question of the residual nature of social services and that of the margin of freedom of the Member States resulting from the principle of subsidiarity.
For the purpose of achieving exclusively social activities by excluding SSIGs from the scope of the market, the determination of the respective competences, made mandatory by Article 14 of the TFEU, could, in our view, be done on the following basis:
A- Community Competence
Development of a legal instrument outlining 3 generic categories of social services engaging in activities:
a) exclusively social,
b) essentially social,
c) partially social.
B- National/local competence (principle of subsidiarity)
1- Classification of social services into one of the 3 categories using bundles of indicators and based on NACE 2 (see chapter 2.1 above). This determination is based on:
a) The volunteering of candidate entities,
b) The contradictory instruction of the supervision file by the public authority (under different regimes of agreements, approvals, authorizations),
c) The control of the administrative judge.
2- Public funding proportional to the amount of mandated social activity.
The majority of current social services fall into category a) as approved by the exclusions of the services directive, including early childhood care. Some others fall into category b), for example, those whose socio-health anchoring prevails over comfort activities within the eclectic range of personal services and which should, for this reason, also be excluded from the directive. Finally, category c), residual, targets entities where the social component is minor due to their purposes (residences for the elderly) and/or their profit status.
Thus, unlocking the current situation where everyone is passing the buck, this determination of competencies, respectful of the principle of subsidiarity and the cultural specificities of each, would lead to the possibility for most social services of a (re)classification within the non-economic services of general interest.
3.2. Institutional Aspects
Operators fear moving from a logic of partnership between public authorities and associations to a logic of service providers responsible, in application of binding specifications, for carrying out previously determined missions, far from the singular, often unpredictable problems encountered in the field, requiring flexibility and speed of technical responses, detection of new needs and proposing inventive solutions. In addition, with a view to rationalising resources, the GCSMS make some fear a dissolution of small associations, yet adapted in many cases, job losses, others seeing it on the contrary as a way to better resist competition from merchant operators.
3.3. Financial aspects
The reductions in resources, their non-sustainable nature and the complexities of allocations generate insecurity for the exercise of missions and the job security of employees. The least so-called financial, an essential parameter of calls for tenders, raises a lot of concern, the competition risking create dumping and penalising the social clinic to the detriment of the rightholder.
There are ways to ward off this already proven shift towards the logic of public procurement, without falling into the other risk created by public service delegations, when operators are paid on the product of their activity alone. On the one hand, the subsidy financing system does not require it to be an economic service of general interest (SGEI) but it is fragile because it is discretionary, unless it is secured by multi-year agreements of objectives and on the condition that they are not specifications disguised as calls for projects. On the other hand, in-house status and integrated service contracts are modalities to be protected. They have long allowed a large number of social services to be paid and we do not see why they would become obsolete. To do this, in administrative law, the legal concept of compulsory expenditure does not require that establishments and services be of economic interest. Their nature therefore reinforces the classification a) of ch. 3.1 supra.
3.4. Clinical aspects
In terms of social and educational practises, the introduction of competition and the existence of a market affect the quality of services rendered in the general interest.
The shift of the exclusively social objective towards an incidentally social goal and the diversion of the social purpose by lucrative opportunities can only generate a regression of socialised national solidarity and a retraction of the republican contract. Of an ardent obligation, the social would be reduced to the status of product in a selective market, the least wealtful citizens having to be content with a universal but minimal service, at the lowest public cost.
The selection of the most solvent clients, the least heavy, the reduction of personnel resources, the weakening of interdisciplinary work, the shortening of intervention times to be concerned only with the vain and ephemeral suppression of symptoms, the increase in the number of cases followed, the unavailability to attentive and patient listening, the interinstitutional competition substituted for the necessary trust between one and the other, in particular for the coordination of actions, when it is not the hunt for customers, are only the main negative effects of this commodification of the social. It overtakes the technical operation of the services (cost reductions to gain market share) and penalises the clinic of interventions. Finally, it affects everyone since the beneficiaries are no longer considered to be the beneficiaries of an equal regime.
SSIGs are specific services guaranteeing the effectiveness of fundamental rights. The legally possible and technically simple way to record this specificity is their (re)classification, in their rightful place, in the SNEIG. They have nothing to do or expect from their classification in services of general economic interest (SGEI) where they are for reasons based on market criteria and objectives. This (re)classification would have at least three main consequences: 1) Placing them outside the Community's competence. 2) Discourage merchant operators from investing in an unproductive field of financial profits. 3) Restore to the social economy its major and noble vocation as an instrument of inclusion and social cohesion.
The new title of non-economic social services of general interest (SSNEIG) that we have proposed elsewhere[29] is certainly different but not very far from a formula proposed by the preparatory group of the 3rd forum on SSIG organised by and under the Belgian Presidency of the Council of the EU, in Brussels in December 2010[30]. It is in fact suggested, in the context of a reserved contract [31], the creation of a uniform European statute of the undertaking of social interest or of the social economy company (or any other equivalent name), a status which would favour the social qualification of the aims pursued by the operator rather than the economic or non-economic nature of the services provided. Unfortunately, to date, these proposals have not been accepted either by the participants or by the authorities, proof, if any, of the pregnance of the liberal doxa.
Nevertheless, professionals in the field are mobilising[32]. Refusing any corporatist vision, they constitute transversal collectives working for and in the general interest, seeking to contribute their stone, in a rightful place, in the (re)construction of social Europe. At the same time, others invested in doctrine.
Conclusion
Ultimately, the (re)classification of social services in the non-market sphere is a matter of political will. To do this, in the community corpus, there are enough legal and doctrinal elements but these are neither seen nor retained by the liberal doxa, which generally sticks to a few cosmetic arrangements.
The specific nature of social services does not escape anyone, but the current majority is reluctant to cross the Rubicon to place them in law on the shore where they are already in fact. Exclusively social activities, although recognised by the European Court, are still far from being recognised in Community practises.
[1] Article to be published in the Journal of Health and Social Law (RDSS), No. 4, July/August, 2011, Dalloz.
[2] Joël HENRY, specialised educator, former president of the NGO EUROCEF, honorary president of the C.N.AEMO.
[3] Michel CHAUVIÈRE, research director at the CNRS, member of CERSA, University of Paris 2 [3]
[4] In particular by more or less authoritarian concentrations, as in France with the so-called Social and Medical-Social Cooperation Groups (GCSMS).
[5] Max Weber, Sociologie du droit , Paris, PUF, 1986.
[6] Ordoliberalism: Theory advocating economic freedom, trusting individual initiatives and market mechanisms and opposing all forms of socialism and dirigism. See Pierre Bilger's Blog, The Fribourg School, Ordoliberalism and the Social Market Economy..
[7] M.-A. Frison-Roche, « L’État, le marché et les principes du droit interne et communautaire de la concurrence », Les petites affiches, 17/05/1995, n° 59-7.
[8] Chicago School: informal group of liberal economists around Milton Friedmann, supporting the neoclassical theory of the libertarian free market (individual freedom, reduction of the state) and monetarism.
[9] This excess of the role of the judge is often deplored, including by some of them. V. Koen Lenaerts, judge at the CJEU, Round table, 3rd SSIG symposium, Brussels, 27 October 2010.
[10] Doxa: Parmenides: Confused opinion that we have about someone or about an aspect of reality, as opposed to the true path to the truth. Husserl: Set of non-objective beliefs and ideas.
[11] François Bilger, Idées et intérêts dans la construction économique européenne , Petites affiches, La loi, Le quotidien juridique, 22 janvier 2009.
[12] Frits Bolkestein, Construire l’Europe libérale au XXIème siècle, Conférence à Fribourg en Brisgau, 10 juillet 2000.
[13] V. paragraphe 3.1, Un marché unique pour le XXI e siècle , COM (2010) 2020, Communication de la Commission, pp. 21-22.
[14] Guide de la Commission européenne relatif à l’application aux SIEG et en particulier aux SSIG, des règles de l’UE en matière d’aides d’État, de marchés publics et de marché intérieur, p. 17.
[15] V. EUROSTAT, NACE, rév. 2.
[16] This principle is a keystone of European building. Finding its origins in the social doctrine of the Church, imposed by the German negotiators during the elaboration of the Treaties of Rome, it is defined in Article 5 -1-2 of the EC Treaty: The community acts within the limits of the powers conferred on it and the objectives assigned to it by this treaty. In areas which do not fall within its exclusive competence, the Community intervenes [...] only if and to the extent that the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore [...] be better achieved at Community level.
[17] Arrêts 1987 Commission/Italie, 118/85, point 7 puis 1998, Commission/Italie, C35/96, point 36.
[18] Arrêts 1991 : Höfner et Elser, point 21, 1993 : Poucet et Pistre, point 17,1995 : Fédération française des sociétés d’assurances e.a, point 14, arrêts Albany, point 77, Brentjen’s, point 77, Drijvenden Bokken, point 67.
[19] Il s’agit d’un fonds de pensions pour des médecins hollandais.
[20] Traité de fonctionnement de l’UE.
[21] Doctrine renforcée par l’arrêt Commune d’Almelo C-393/92 du 27 avril 1994 (point 46).
[22] Rapport du Medef, Marché unique, acteurs pluriels : pour de nouvelles règles du jeu, 1 ier juillet 2002, principe n°3 : « Intégrer le secteur social dans le secteur marchand ».
[23] L’arrêt Altmark purge un litige relatif à des transports en Allemagne.
[24] Assisted, if necessary, by online technical assistance. Let us add that a (consultative) Green Paper on the modernisation of public procurement with a "social services" component has just been opened.
[25] For details of this transposition, see Synthesis report on transposition by France, January 20, 2010.
[26] For example, the financing by a department of expenses incurred by an association for a judicial AEMO measure decided by a children's judge.
[27] L’irlandais Proinsias De Rossa (SD) doit présenter prochainement un rapport circonstancié.
[28] Controversy launched by social housing organisations after Decision E-2/2005 on capping the resources to access social housing in the Netherlands.
[29] Joël Henry : Contribution écrite au 3ème Forum SSIG- Bruxelles, décembre 2010.
[30] Belgian Presidency of the Council of the European Union, Paper SSIG 01, SSIG & marchés publics, B questions 07 & 07 bis, p.5.
[31] Terminology contained in Directive 2004/18/EC on the coordination of procedures for the award of public contracts to reserve access to certain contracts for protected workshops only (Article 19).
[32] The MP4-Champ social movement (www.mp4-champsocial.org) has put online two petitions signed by more than 4,500 social workers, medical-psychological personnel, teachers, magistrates, various citizens. .