Edited by Grith S. Ølykke and Albert Sanchez-Graells
Chapter 8: The provision on services of general economic interest in the 2014 Directive – pure reiteration of the obvious?
Article 1(4) and 1(5) of the 2014 Directive emphasize the freedom of Member States to organize the provision of Services of General Economic Interest (SGEIs) and social security systems. The wording of Article 1(4) and 1(5) was not included in the 2011 Proposal; it was added by the Council, and later supplemented by the Parliament, during the negotiations. Bringing a reference to SGEIs into public procurement legislation does not as such add to the current state of law, however following on are Non-Economic Services of General Interest (NESGIs), which are also explicitly mentioned in the recitals of the 2014 Directive. It is stated that NESGIs are not covered by the 2014 Directive; however, if interpreted in the light of existing case law, this statement will probably not have much of an effect, as only very few services are acknowledged to be non-economic by the CJEU. The right to organize social security systems is recognized by the CJEU in settled free movement case law and therefore, similarly, should not change the state of the law. However, recent case law (after the adoption of the 2014 Directive) could be inspired by Article 1(4) and 1(5) and this chapter considers whether the purpose of the introduction of these provisions was to send a strong signal to the CJEU regarding the avoidance of any new limits on Member States’ discretion to regulate NESGIs or even SGEIs, which might already have been received.
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