During the years 2004–2010, I worked as a practitioner of Swedish public law
on housing and waste treatment; this book was born out of that experience. As a
legal advisor for local and regional authorities in Sweden, I faced the challenge
of understanding what a service of general economic interest (SGEI) is and how
the SGEI character of an activity affects the application of EU market rules to
national measures affecting the activity. I was also able to witness the striking
contrast between the intensity of the EU debate on services of general interest at
an EU level and the loud silence on this topic in Sweden. Yet it was clear that in
Sweden as anywhere else in the EU, market law implacably made its way into the
Member States’ regulation of social services, one of the most sensitive parts of
national democracy. It was also clear that this evolution could explain the introduction
of several new provisions on SGEI in the EU Treaties, first through the
Treaty of Amsterdam 1997–1999 and a decade later through the Treaty of Lisbon
2007–2009.
This transformation of SGEI into a constitutional concept of EU law is the
result of a political compromise and, unsurprisingly, the post-Lisbon Treaty framework
on SGEI has not only brought up new legal issues but also left crucial legal
questions unanswered. This book addresses some of the unsolved questions: in
particular, what constitutes an economic activity for the purpose of EU market
law and what is the legal meaning of the EU concept of SGEI? The debate on
SGEI may not be particularly topical at the moment but it seems important to discuss
the meaning and relevance of SGEI, especially because the EU Commission
has a mandate to negotiate the international trade agreement between the Union
and the USA. The book also proposes an analysis of the ambiguous relationship
between the SGEI provisions in the FEU Treaty, as interpreted by the CJEU, and
the EU procurement and state aid legislative package adopted within the frame of
the Commission Communication on Services of General Interest 2012. Finally, in
order to gain a better understanding of the strategic choices made in these legislative
packages, the book focuses on the Swedish regulation of public social services
in systems of choice and on the effects a strict application of the EU state aid rules
would have on their liberalization.