Public Services Board
CEEP Opinion – Brexit, Trade and SGIs “Reflection on brexit and trade: possible options” – PDF
- CEEP intends to contribute to the Brexit debate by identifying reflection tracks towards ensuring level-playing field in a post-Brexit EU-UK relationship, in which providers of public services and of SGIs can operate for the benefits of citizens and companies.
- Brexit will have fundamental political, economic and legal consequences for both sides. These consequences will be shaped by the features of the agreement that is currently being negotiated. The two parties will have to reach an agreement in the following three main areas: First, the United Kingdom and the EU will need to agree on the regime for the trade of goods and services. Second, new rules are needed for migration. Third, the United Kingdom needs to be disentangled legally from the European Union (European Union (Withdrawal) Act 2018).
- In this statement, CEEP argues that solutions like the free trade agreement with Canada (CETA) do not justice to the close European ties between the UK and the EU. A comprehensive, but flexible free trade agreement with much EU acquis and deep and comprehensive content, such as the DCFTA currently in force between the EU and Ukraine, seems most likely able to meet interconnection requirements between both countries and to foster cooperation and common policy-making in the future. Therefore, it is highly desirable for the economic prosperity of the EU and the UK.
- The future trade negotiations for free trade agreements like the DCFTA should respect environmental, social and security standards. Especially, the possibility to amend the agreement in view of political or economic developments is crucial given the geographic, historical, political and economic relations between the European Union member states and the United Kingdom. A DCFTA oriented agreement can assure a high degree of access to the EU single market, at least for trade in goods, but not necessarily for movement of people and services.
CEEP Opinion on EU Trade Agreements, adopted by CEEP General Assembly on 08 June 2016 – PDF
- CEEP wants to support a coherent implementation of the EU’s trade strategy and sees free trade agreements as an opportunity to set worldwide well-designed standards to support sustainable development, including by safeguarding subsidiarity and the essential role played by services of general interest (SGIs) and the social economy. Therefore:
- More legal certainty is needed over the safeguard of the provision of SGIs in international trade agreements. Hence, CEEP calls European institutions, and notably the European Commission, to engage into a constructive debate on the possibility to include standard clauses to fully preserve the discretionary power of national, regional and local authorities in how to provide, organise, finance and commission SGIs, and notably services of general economic interest (SGEIs) subject to trade agreement rules.
- The EU should pursue effectively the Sustainable Development Goals 2030 in its trade policy. Binding and enforceable provisions to promote high environmental and labour standards need to be included in all future FTAs negotiated by the EU and any attempt of social and environmental dumping should be prevented. Furthermore, EU Trade agreements need to ensure a better coherence between development goals and trade interests.
- CEEP calls the European Commission and Member states to continue their efforts towards a more evidenced-based, inclusive and transparent trade policy. Furthermore, in a democratic system, competent authorities should not find it difficult to enact any standards because of fearing to be challenged by corporate claims.
- Trade agreements need to be fit for the digital age. Cross-border data flows, if addressed, shall be in compliance with data protection and security rules in force in the country of residence of the data subject. New services should not be automatically included in EU market access commitments without re-negotiation. In addition, the “digital dimension” of products and services shall be negotiated in the context of their respective original classifications.
- The current European legal definition (Recommendation 2003/361/EC of 6 May 2003) for small and medium-sized enterprises (SMEs) does not encompass the majority of local public services enterprises (LPSEs) from its scope because it excludes enterprises with a public ownership of more than 25%.
- The SME definition is widely used both in European and national legislation, as well as in EU financing programmes, in response to the EU policy priorities and more recently the Better regulation agenda.
- However, it appears that the EU SME Definition unnecessarily discriminates against LPSEs for the very nature of their ownership structure. This is notably contrary to article 345 TFEU which states that “The Treaties shall in no way prejudice the rules in Member States governing the system of property ownership”.
- As a consequence, LPSEs cannot take part in a number of funding and financial schemes. They are also constrained by unnecessary and especially disproportionate regulatory burden from which other SMEs covered by the definition are exempted because of disproportionate costs, and therefore may suffer a disadvantage, especially in areas where they are in competition with private enterprises.
- Hence, an amendment to the European SME definition is required in order to guarantee equal treatment to all types of SMEs irrespectively of their type of ownership. Should this not be possible or not desired, future reference to the SME definition should exclude Article 3, Paragraph 4 of the Annex to the aforementioned Commission Recommendation.
Reacting to the adoption of the draft European Parliament’s recommendations to the European Commission on the negotiations for the Trade in Services Agreement (TiSA) by the International Trade (INTA) Committee of the European Parliament, CEEP General Secretary Valeria Ronzitti commented:
“In order to support the creation of sustainable growth and jobs in Europe, free trade agreement negotiations should not put the provision of high-quality and affordable services of general interest under pressure.
We believe that TiSA negotiations have a great potential to shape globalisation and set up fair international trade standards guaranteeing the respect of the EU acquis. In a constructive way, the INTA committee requested the EU to fully seize this opportunity.
Most importantly for us, the committee has reasserted its position on the exclusion of services of general (economic) interest. It sends a clear signal that the Commission’s current approach on the safeguard of services of general interest based on the public utilities clause is insufficient. As proposed in the report, a ‘golden standard’ clause would significantly increase legal certainty and predictability, which are key factors to foster investments in physical and social infrastructures.
Ahead of the plenary vote, CEEP calls MEPs for strong support of Ms Reding’s report.”
- The Remedies Directive of 2007 aims at providing the economic operators with more effective national review procedures in order to ensure the effective application of the EU public procurement law. In particular, the Directive introduced a mandatory standstill period between the awarding and the conclusion of the contract, as well as the possibility the render a contract ineffective in case of illegal direct allocation.
- CEEP represents employers and enterprises providing services of general interests and thus represents both economic operators and contracting authorities. Therefore it is crucial for CEEP that there is a balance between guaranteeing certain rights to economic operators and legal certainty for contracting authorities.
- An effective Remedies Directive is of crucial importance for CEEP: in order to maintain the presumption of legality of the performance of the contracting authorities in public procurement (and avoid immediate economic responsibilities on public authorities), it is important that the rights of bidders are guaranteed by a judicial system which gives them adequate protection. At the same time, the burden on contracting authorities in terms of delayed procedures and legal insecurity has to be reduced as much as possible. This is important in order not to challenge the obligation of contracting authorities in terms of provision of public services.
- It is important to remind that an effective implementation of the new public procurement package will help to avoid remedies procedures. The very essence of the new rules has been to provide a clearer legal framework to avoid remedies. In this context, the detailed codification of the possibility of “in-house” procedure and public-public cooperation in the new public procurement package is particularly important.
On the Effectiveness of the Remedies Directive
- Overall CEEP believes that the Remedies Directive has provided better review procedures for economic operators. In particular, it has enabled to make the public procurement process more open and accessible. In the light of the public service obligations of CEEP members, one of most relevant provisions are the suspension of the award procedure, the possibility of ineffectiveness and the possibility of alternative penalties to ineffectiveness. However, regarding the latter point, it is problematic for public services providers when the possibility of applying alternative penalties instead of ineffectiveness for “overriding reasons relating to a general interest” is not transposed or clarified in national legislation.
- There is no doubt that the existence of the Remedies Directive has lead to a multiplication of judicial procedures and therefore a delay in allocation procedures. Contracting authorities suffer from a lack of capacities compared to the increasing number of complaints. Furthermore, they are suffering from a lack of legal certainty and frivolous procedures. As a consequence, they can be reluctant to close a procedure because of the fear of being sued. In respect with the principle of procedural autonomy, Member States should organise review procedures in such a way to minimize the burden for contracting authorities. It appears that the procedures are particularly burdensome when it is dealt with at the level of ordinary courts rather than by a specialised review body. Alternative resolution mechanism might be adequate in some Member states where ordinary court procedures take long. Furthermore, intermediate mediation mechanisms might be helpful to avoid heavy delays in allocation procedures. Such mechanisms already exist in some member states (e.g. UK) and could be particularly useful when contracting authorities have to allocate tenders for projects of general interest.
CEEP Opinion on the European Commission Package “Better Regulation For Better Results – An EU Agenda” – PDF
- CEEP welcomes the new approach proposed by the Commission in the Better regulation package. More transparent, inclusive and evidenced-based decisions through a systemic approach are needed to ensure that EU measures are fit for the needs of citizens, enterprises and public administrations, including public services providers. Most importantly it will enable to increase the ownership of the European project.
- Better regulation is a collective responsibility. Clear commitments from the co-legislators are fundamental to make Better regulation effective and legitimate. Also, as a cross sectoral European Social Partner, CEEP is fully aware of its responsibility in making Better Regulation happen.
- Better regulation has a great potential to contribute to social and economic cohesion in Europe by creating the right environment for accompanying the on-going modernisation of public services across Europe.
- However, CEEP believes that there is some room for improvements in order to make sure that Better regulation will be effective. First of all, citizens and stakeholders need to be better informed on how decisions are taken at each important step of the policy-cycle. In particular the delegated acts procedure and ‘trilogues’ need to be even more transparent.
- Additional public consultations channels are very welcomed. Nevertheless, in order to make the process effective it is important that factors such as timing, intelligible drafting as well as transparency on how the results are taken into account, are considered and improved.
- A more evidenced-based decision-making is needed to ensure the quality of political decisions at the final stages of the decision-making procedure, but the requirement of impact assessment should not end up paralysing political decisions.
- In order to not undermine the balance between social, environmental and economic objectives, it is fundamental that the new REFIT approach fully embraces the principles of transparency and legal security. In addition, we call on the European Commission to include the general cross-sectoral social partners in the REFIT platform.
CEEP Opinion on the mid-term review of the EU 2020 strategy – PDF
CEEP Response on the Ombudsman Consultation on Transparency in TTIP – PDF
CEEP Response to the European Commission Consultation on Investor-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership (TTIP) – PDF
CEEP Opinion on the Transatlantic Trade and Investment Partnership (TTIP) – PDF