The Importance of SGEI in the Post-Lisbon Treaties

Abstract

This chapter examines the EU constitutional framework on public services, as reflected in the post-Lisbon framework on SGEI. It looks first on Article 106(2) TFEU as a Treaty provision allowing Member States to retain powers, and second on the other Treaty rules on SGEI which have emerged from the political debate between 1997 and 2007. A general analysis of these rules shows that they open for an Europeanisation of public services, and promote the concept of SGEI has a Treaty “voice” for public service regulation. Article 14 TFEU is the prominent element of this framework as it contains both a principle on the protection of SGEI missions and a legal ground for EU law on SGEIs. Both the place of Article 14 TFEU in the Treaties and its wording suggest that the interests of achieving public service tasks and of market integration should be balanced, even in the field of EU free movement and procurement law. The chapter further examines the relationship between this framework and the Union’s “foundational principles” in the post-Lisbon Treaties, in particular the values of the Union, the respect for human rights, of democracy and of the identity of the Member States, and the promotion of social and territorial cohesion. Based on these analyses, it is concluded that Article 14 TFEU forces the CJEU to take a stance on whether SGEI may be understood as a broad concept of “public service” in EU primary law.