An extension of exemptions: systemic shifts in European Union law and policies
| Author | Tamás M. Horváth,Ildikó Bartha |
| Date | 01 June 2022 |
| Published date | 01 June 2022 |
| DOI | 10.1177/0020852320905359 |
| Subject Matter | Articles |
Article
An extension of
exemptions: systemic
shifts in European Union
law and policies
Ildik
o Bartha
MTA-DE Public Service Research Group, University of
Debrecen, Hungary
Ta m a
´s M. Horva
´th
MTA-DE Public Service Research Group, University of
Debrecen, Hungary
Abstract
Rules on services of general interest allow exceptions to the internal market law of the
European Union.Do these exceptions really remain within the limits of free competition?
Nowadays, this question seems not to be independent from the risk of direct political
considerations influencing the market of public services. This tendency may result in
national legislative or administrative measures that may run counter to the spirit of the
original objectives of European Union integration. European Union substantive and pro-
cedural lawdoes not seem to raise unavoidable obstaclesto such efforts. In the context of
the European Union regulatory framework for services of general interest, our research
focuses on the results of an analysis of a database of European Union court cases that
highlights the challenges and threats of recent national instruments of public sectororga-
nization to the operation of the European Union internal market and competition rules.
Points for practitioners
The role of states, either through a shift in their regulatory influence or by means of
direct economic intervention, has undergone changes in the last 15 years of European
Corresponding author:
Ildik
o Bartha, MTA–DE Public Service Research Group, University of Debrecen, Hungary.
Email: bartha.ildiko@law.unideb.hu
International Review of Administrative
Sciences
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DOI: 10.1177/0020852320905359
journals.sagepub.com/home/ras
2022, Vol. 88(2) 570–586
International
Review of
Administrative
Sciences
integration. The strengthening populism and illiberal turns may be rooted in the
re-understanding of member states’ role in integration through the activism of radical
governments and/or political powers, not only in politics. This article is about how the
risks of this shift are mirrored in the sectoral policies of public services.
Keywords
exclusive rights, public sector reorganization, public services, services of general eco-
nomic interest, state aid
Introduction
The article examines changes in the substantial and procedural rules of the
European Union (EU) regulatory framework for services of general interest
(SGIs). Originally, the signatories of the EU treaties committed themselves to
confer a significant part of their regulatory powers in economic relations on the
European Community (EC) in order to realize their shared interests in opening
national markets and eliminating the obstacles to enhanced competition in a
European single market. However, this approach has been challenged over the
last 15 years. With the development of the single market, the EU has had to
face the need to ensure service provision (Wollmann and Marcou, 2010: 2) and
related tensions of complying with the requirements of progressive liberalization at
the EU level. This process led to a gradual extension of exemptions in EU legis-
lation, that is, member states’ opportunities to deviate from the generally applica-
ble EU rules on grounds of the regulation and financing of public services.
Some of the recent tendencies of policy formulation by national governments
resulting in legislative or administrative measures in the extended area of public
services may run counter to the spirit of the original objectives of EU integration in
the field of competitiveness. Our research question (R1) is how the case law of the
EU courts reflects this direction of national policy formulation and legislative/
administrative changes. The second research question (R2) is to what extent the
applied measures of SGIs as exemptions from competition rules are compatible
with the policy and legal requirements of the EU internal market.
According to our hypothesis, a green light to rather ‘member-state-oriented’
policies of public service regulation has been given by the extended application
of particular tools in the area of SGIs as exemptions from EU internal market and
competition rules. This extended application is clearly demonstrated in the case
law of the EU courts. This systemic phenomenon is going to result in the increas-
ingly relative borderlines between member states’ actions that are ‘still compatible’
with or really against the internal market.
The EU terminology is based on the categories of services of general economic
interest (SGEIs), SGIs and, recently, services of social general interest (SSGIs),
571
Bartha and Horva
´th
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