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Service of general economic interest ‘refers to services of an economic nature which the Member States or the Community subject to specific universal service obligations by virtue of a general interest criterion. The concept of services of general economic interest thus covers in particular certain services provided by the big network industries such as transport, postal services, energy and communications.’ This definition mirrors the dual nature that services of general economic interest have. On the one hand, they have an economic nature, for they are, in the Commission''s words, market services; on the other hand, they have an implicit non-market nature, for they are provided in the general interest.
As far as the question whether this concept is a national or a Community concept is concerned, the emergence of Article 16 seems to mix the two dichotomic approaches, which constructs shared and horizontal competences of the Community and Member States when defining this concept. And it challenged the former approach by the Court that the concept of services of general economic interest is totally a community concept. Nevertheless this method left a grey area where to be drawn a borderline of the respective powers between the Community and Member States. Subsequently in Green Paper on Services of General Interest the Commission attempted to make this grey area less by distinguish such respective powers. However in the subsequent White Paper on Service of General Interest the Commission gave up such attempt, and wished to reconstruct Article 16 in European Constitution by endowing the Community with surveillance power over the operation of services of general economic interest by Member States. Consequently answering this problem one time for all is unlikely and still in process with the development of integration of the Common Market.
In my opinion the surveillance model, or hierarchical formula and not horizontal formula, would be better. Because of the large cultural, economic and political differences among Member States it is objectively impossible for the Community to establish a uniform system of services of general economic interest suitable for the whole Common Market. Then it goes without saying that Member States have to be provided wide discretion to perform their services of general economic interest alone. In such circumstances it is rather wise to confer somewhat discretion power on Member States at the same time reserve surveillance power to the Community.
In addition, the concept of service of general economic interest is dynamic one, capable of changing with economy, technology and society. The extent of this concept would be enlarged or shrinked case by case and time by time.
3.1 Services
The concept of ‘services’ used in Article 86(2) absolutely has a broader meaning that the concept used in Article 50. According to the practices of the Court, categorized as services of general economic interest according to Article 86(2) are the administration of major waterways , the operation of airlines , the provision of electricity , the provision of postal service , mooring services in ports , the treatment of waster , the provision of emergency ambulance services , the supply of telecommunication equipments and so on.
Therefore, the concept of services used in the field of Article 86(2) must have a wider spectrum of activities, which can include not only the provision of services in virtue of Article 50, but also the provision of good in light of Article 23. Without the following adjective words both of ‘economic’ and of ‘general’ would, in my view, the concept of ‘services’ employed in Article 86(2), as a general derogation, include any activities contained in EC Treaty.
3.2 Economic
Article 86(2) specifies that the services concerned have to be of an economic, or market, nature. An economic activity points to any activity consisting in offering goods or services on a given market. Furthermore it means that the activities performing SGEI must fulfill the law of demand and supply and run for profit, at least in part of their operation. Hereby ‘for the meaning of ‘economic’ one must turn to the case law on the meaning of ‘undertaking’ ’ .Thus in my view the function of ‘economic’ here points to the essence of entities which operate services of general economic interest, as defined in Hofner .
As far as the meaning of the word ‘economic’ is concerned, the distinction between services of general economic interest and services of general interest must be taken into consideration also. The word of services of general interest is not used by the Treaty itself. However it was developed from the term of services of general economic interest and ‘it is broader than the term of services of general economic interest and covers both market and non-market services which the public authorities class as being of general interest and subject to specific universal service obligations.’
3.3 General
The concept of general means services of general economic interest should necessarily meet general needs of economic operator and not a special category of people . So a service or benefit offered by only to certain undertakings or economic sectors can not be considered to be ‘general’. Moreover admittedly the extent of ‘general’ cannot be so extended as to benefiting any citizen and any geographic part of European Community. Regional developments and actions directed at certain disadvantaged groups of people can be regarded as a ‘general’ interest in so far as they constitute a substantial part of the Common Market. In addition, the general nature of services of general economic interest consequently results in the operation of universal service obligations conferred on the entrusted undertakings. And it is the very operation of universal service obligations that not only departs undertakings entrusted services of general economic interest from pure market operation, but also justifies the deviation of the effectiveness of the EC Treaty by those undertakings conferred on exclusive rights according to Article 86(2). The Commission did not exhaust all forms of services of general economic interest, but she said it should cover in particular certain services provided by the big network industries, such as transport, postal services, energy and communications .
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