Who is afraid of SGEI? : services of general economic interest in EU law with a case study on social services in Swedish systems of choice

Abstract: For a long time confined to Article 106(2) TFEU, a provision allowing to justify regulatory measures derogating from Treaty rules by invoking their necessity in order to enable undertakings entrusted with services of general economic interest (SGEIs) to fulfil their special tasks, SGEI has become a constitutional concept of EU law. In the post-Lisbon EU Treaties it is subject to new provisions, in particular Article 14 TFEU and the Protocol on services on general interest.As a legal concept allowing to balance EU market integration and the pursuit of legitimate national policies related to public services, SGEI is also a political concept, and therefore its legal interpretation is an ultra-sensitive matter. This dissertation proposes that SGEI cannot anymore be contrived as a narrow concept of EU competition law, but must be understood as a broad public service concept encompassing both public authorities’ policy missions and undertakings’ public service obligations. This follows from an analysis of the CJEU’s understanding of the EU concept of SGEI in the frame of Hirschman’s theory on exit and voice, and thus on the double background of its own case law foreclosing exit from EU market rules for public services, and of its acknowledgement of the SGEI “voice” this has led to in the Treaties. The analysis shows that the CJEU’s bifurcation by the notions of “public service obligations” and “public service tasks”, is aimed at applying the Treaty SGEI provisions loyally without pre-empting their political use by the Union and the Member States.To shed some light on the political use of the EU concept of SGEI made by the EU legislator and the Member States in a context of Europeanisation and liberalisation, this dissertation scrutinizes also how the new EU procurement and state aid rules applying to social services relate to the Treaty principles on SGEIs, and how the Swedish systems of choice for elderly home care and education relate to the EU rules. It analyses whether these relationships, if too transparent and loyal, may constrain the process of liberalisation of social services in the Member States, and whether it can explain that an explicit characterisation of social services as SGEIs seems to be avoided in EU procurement law and in Swedish law.