The common good, public subsistence and the functions of public undertakings in the European internal market

Abstract

Despite the fact that ours are market societies, the common good – bonum commune – plays a surprisingly important role, not only in the Member States of the European Union but also in Community law. As stated in the Communication from the Commission of 20 September 2000, services of public interest are a key element in the European model of society. The new Article 16 in the EC treaty now confirms their place among the shared values of the Union and their role in promoting social and territorial cohesion. It stipulates that the Community and the Member States ... shall take care that such services operate on the basis of principles and conditions which enable them [the services] to fulfil their missions. On the other hand, as the Community is committed to the principle of free and fair competition (Art. 3g/4 EC), there is bound to be at least a certain tension between this principle and the concepts of common good or public subsistence. Economists point out that the “enemies of an open society” follow “their own interests under the cover of the common good”. Bonum commune – this “sounds like something that has been given a-priori precedence, something that calls for republican civic virtue and that would seem to place obligations above individual rights”. But the European Commission sees no contradictions here. An earlier Communication stated that “far from being incompatible, services of general economic interest, internal market and Community competition policy were complementary in the pursuit of the fundamental objectives of the Treaty. Their interplay must benefit individual citizens and society as a whole.” It is therefore consistent for Article 16 EC to state that Articles 73, 86 and 87 EC (transport / application of competition rules to public undertakings / regulations governing state aid) continue to apply fully and without prejudice.