What are the consequences of the Services Directive on the

organisation of Social Services of General Interest such as Housings

and Social Care ?

ITHE INSTITUTIONNAL GAME

Looking for a consensus

1. The actors of the european consensus

THE INSTITUTIONNAL PROCEDUREThe Actors

COMMISSION

COUNCIL

PARLIAMENT

Court of CountsCourt of Justice

Social and Economic Comittee

Regions Committee

Investments European Bank

European Central Bank

Institutions of décision

Institutions of Control

Institutionnal organs

THE INSTITUTIONAL PROCESSThe Council

COMMISSION

COUNCIL

PARLIAMENT

• Composed by member states ministerial representatives

• 9 specialised shapes

• work prepared by the CSA for agriculture, dedicated committees and COREPER for general affairs

• Variable system of vote depending on the subject

THE INSTITUTIONAL PROCESSThe Commission

COMMISSION

COUNCIL

PARLIAMENT

• Composed by one commissioner by state member

• Monopoly of the initiative

• Represents the Community interests and protect the treaty

• 23 General Directions (18000 people)

THE INSTITUTIONAL PROCESSThe Parliament

COMMISSION

COUNCIL

PARLIAMENT

• Composed of 732 members elected for 5 years

• Represents peoples

• Competencies for budget and political control

• 7 political groups + diverses intergroups + national groups

• 12 plenary sessions in Strasbourg, 2 weeks per month in Brussels

2. The legislative procedure

THE INSTITUTIONNAL GAMELooking for a consensus

Decides upon Conflicts among

The Council

THE INSTITUTIONNAL GAMESUM-UP

EUROPEAN COUNCIL

Meeting of states chiefs

COUNCIL

Legislative Organ representing member

states – specialised shapes

(Ecofin, Agriculture, etc.)

COMMISSION

25 members in 2006, named by member

states

PARLIAMENT

Legislative Organ Located in Strasbourg. 732 MP elected for five

years

Proposes regulation and directive to

legislative organs

Directives andRegulations

Generalisation of the qualified majority vote

Representing the proportion of each member state

Elected president for two years and a half

new function of foreing affairs ministry

President elected by Parliament, reduced number of commissioners to 15

EUROPEAN COUNCIL

Meeting of states chiefs

Decides upon Conflicts among

The Council

COUNCIL

Legislative Organ representing member

states – specialised shapes

(Ecofin, Agriculture, etc.)

Directives andRegulations

Proposes regulation and directive to

legislative organs

COMMISSION

25 members in 2006, named by member

states

PARLIAMENT

Legislative Organ Located in Strasbourg. 732 MP elected for five

years

THE INSTITUTIONNAL GAMESUM-UP

GREEN PAPER Consulting document destined to launch a wide debate between actors

WHITE PAPER

COMMUNICATION

Act project

The white paper contains propositions of communitarian actions in a specific field

The communication expresses the will of the European Commission

The Commission has the monopoly of initiative

1° lecture

2° lecture

Con

ciliation3° lectu

re

Commission Proposal

EP position

Council refuses the EP position and proposes its position Council approves PE position

EP refuses EP proposes amendements EP approves

Council does not approve all amendements Council approvesCommission

advice

Conciliating committee

Conciliation committee approves a common project

Conciliating committee does not approve the

common project

EP or Council does’nt adopt the common project

EP or Council adopt the common project

Act adoptedAct non adopted

The «Comitology »

COMMISSION

COUNCIL

Procédure comittee CONSULTATIVE

(article 3)Non blocking advice

GESTION COMITTEE (article 4)

-exécutive measureBudget-linked-

Blocking advice for 3 months, permettingthe council to decide

onQualified majority

REGULATION COMITTEE

(article 5)-exécutive measure

Budget-linked-Blocking advice for

3 months, permettingthe council to decide

onQualified majority

THE INSTITUTIONNAL PROCEDUREThe Actors

COMMISSION

COUNCIL

PARLIAMENT

Court of CountsCourt of Justice

Social and Economic Comittee

Regions Committee

Investments European Bank

European Central Bank

Institutions of décision

Institutions of Control

Institutionnal organs

SOCIAL SERVICE OF GENERAL INTEREST versus SERVICE

DIRECTIVENotion and context

1. The notion of social service of general interest

THE NOTION OF « SERVICE OF GENERAL INTEREST »

• Articles 16 of the European Treaty stresses the fact that “’Econonomic services of general interest’ (ESGI) can be esxempted from competition regulations when they contribute to “common values of the Union”

• Article 86 explains that competition regulations cannot interfere with missions of an enterprise which is in charge of a ‘Economic Service of General Interest’

• Services of General Interest (SGI) can be deduced of these (very tiny)

• SIG is a functional notion from the EU point of view (on the contrary of the French tradition, which define Public services as a organic notion)

THE HISTORY OF THE NOTION OF « SERVICE OF GENERAL INTEREST »

• the beginning of the debate : “web” ESGI (transportation facilities, energy industries, telecommunication industries etc…

GREEN PAPERGreen paper on General Interest Services published in may 2003

WHITE PAPER

COMMUNICATION

Act project

White paper published in may 2004

Communication on Social Services of General Interest published in april 2006

The Commission decided not to launch an act project in november 2007

THE HISTORY OF THE NOTION OF « SERVICE OF GENERAL INTEREST »

HERZOG REPORT, EP, january 2004

Services Directive, adoption, july 2006EP resolution on SSGI

March 2007

TO SUM-UP

• The notion of social services of general interest is hardly defined in a functional way

• It is compatible with competition, since the functional definition of SSGI allows private companies to compete on this market

• It nevertheless can explain some exceptions from the competition rules (for example state subventions), in order to organise certain services that otherwise couldn’t be developed

• the judge could say if the existence of SSGI allows those exceptions or not

SOCIAL SERVICE OF GENERAL INTEREST versus SERVICE

DIRECTIVENotion and context

2. The service directive

THE HISTORY OF THE « SERVICE DIRECTIVE »

• Three main issues :

• The achievement of the EU internal market

• The faith on the positive consequences of the freedom of services on the employment rate and common wealth

• The evolution of the notion of subsidiary on social services

• A Clear competence of the commission

• Article 42 ECT : free movement of workers linked to social security rights

• Article 48 ECT : free movement of people, services, and capital

1° lecture

2° lecture

Con

ciliation3° lectu

re

Commission Proposal

EP position

Council refuses the EP position and proposes its position Council approves PE position

EP refuses EP proposes amendements EP approves

Council does not approve all amendements Council approvesCommission

advice

Conciliating committee

Conciliation committee approves a common project

Conciliating committee does not approve the

common project

EP or Council does’nt adopt the common project

EP or Council adopt the common project

Act adoptedAct non adopted

FEBRUARY 2006

JULY 2006 SEPTEMBER 2006

Commission Proposal

EP position

Council refuses the EP position and proposes its position

EP approves

Act adopted

THE CONSEQUENCES OF THE « SERVICE DIRECTIVE »

• Is social security considered as a service covered by the services directive ? NO…

• Social services covered by the 1408/71 Regulation (and 574/72 implementation Regulation) on coordination between social security schemes are not concerned by the new Directive

•“Poucet et Pistre” Case, 1993 : affiliation to a national social security scheme is compulsory because of its aspect of non economical service of general interest

THE CONSEQUENCES OF THE « SERVICE DIRECTIVE »

COMMISSION

COUNCIL

PARLIAMENT

Court of CountsCourt of Justice

Social and Economic Comittee

Regions Committee

Investments European Bank

European Central Bank

Institutions of décision

Institutions of Control

Institutionnal organs

• Is social security considered as a service covered by the services directive ? BUT…

• Healthcare is deeply impacted by the freedom of movement, the non discrimination principles, and the freedom of services

• “Vanbraekel” Case, july 2001

• “Smits and Peerbooms” Case, july 2001

• “Watts” Case, may 2006

THE CONSEQUENCES OF THE « SERVICE DIRECTIVE »

• Is social security considered as a service covered by the services directive ? BUT…

• Preliminary disposition n° 33 of the directive is explicit : social care and housings are concerned by freedom of competition

THE CONSEQUENCES OF THE « SERVICE DIRECTIVE »

                                 

                                                                                  

33) The services covered by this Directive concern a wide variety of ever-changing activities, including business services such as management consultancy, certification and testing; facilities management, including office maintenance; advertising; recruitment services; and the services of commercial agents. The services covered are also services provided both to businesses and to consumers, such as legal or fiscal advice; real estate services such as estate agencies; construction, including the services of architects; distributive trades; the organisation of trade fairs; car rental; and travel agencies. Consumer services are also covered, such as those in the field of tourism, including tour guides; leisure services, sports centres and amusement parks; and, to the extent that they are not excluded from the scope of application of the Directive, household support services, such as help for the elderly. Those activities may involve services requiring the proximity of provider and recipient, services requiring travel by the recipient or the provider and services which may be provided at a distance, including via the Internet.

SOCIAL SERVICE OF GENERAL INTEREST versus SERVICE

DIRECTIVEThe consequences on the french

organisation of social care and housing 1. The former organisation

• Choice between direct agreement and services financed by social security and local administrations

• If direct agreement : occasional reimbursement by local administrations only if the housekeeper or the nurse is declared (pays her/his own contributions to social security, is paid at a minimum level of income, and correspond to a book of specifications (diplomas, formation etc.))

• If services financed by social security or local administrations :

• Separation between evaluation of the needs and service of housing and social care

• local monopolies of services of general interests, driven by non profit organisations chosen by public authorities by triennial agreements (automatically re-conducted)

THE FORMER FRENCH ORGANISATION OF SOCIAL CARE

EXAMPLE OF THE OLD ORGANISATION EXAMPLE OF THE OLD ORGANISATION OF SOCIAL CARE : PARISOF SOCIAL CARE : PARIS

THE FORMER FRENCH ORGANISATION OF SOCIAL CARE

The main federations of dedicated NPO

                                

                    

SOCIAL SERVICE OF GENERAL INTEREST versus SERVICE

DIRECTIVEThe consequences on the French

organisation of social care and housing 2. The new organisation : three main ways

a) Direct individual agreement with any worker

THE NEW FRENCH ORGANISATION OF SOCIAL CARE

THREE MAIN WAYS

Possible As far as it respects Service Directive (residence principle, or short-term mission), necessity to contribute to a social security system

b) Services partially financed by social security or local administrations on specific areas

THE NEW FRENCH ORGANISATION OF SOCIAL CARE

THREE MAIN WAYS

The new organisation must respects competition principles, using the tool of public bids : the winner is conventionalized for three years

C) Services partially financed by social security or local administrations

THE NEW FRENCH ORGANISATION OF SOCIAL CARE

THREE MAIN WAYS

The new organisation must respects competition principles, using the tool of the book of specifications : All services providers that will accept the book of specification and controls of its respect will be authorized to compete and develop its activity

Questions that remain to be solved

THE NEW FRENCH ORGANISATION OF SOCIAL CARE

THREE MAIN WAYS

• Have we got to finance needs expressed by French retirees living in foreign countries ?

• Are our contracts (of evaluation of the needs and of services) giving an excessive advantage to co-contracting services ?

• Are these new organisations that respect competition principles accurate on the countryside ?

THANK YOU FOR YOUR KIND ATTENTION