Public Services and Lisbon - the facts not the codology

Posted on June 11, 2008 at 11:22 AM

Proinsias De Rossa MEP canvassing on Dublin's Grafton Street

Ensuring Legal Certainty, Local Autonomy and Citizen's Rights

High quality public services, accessible to all, are at the heart of the European vision of a well-run society. If the EU can get public services right, it will offer a powerful example of what a Citizen's Europe can mean in practice for people.

It is the view of the Labour Party and our sister parties across Europe that public services must answer to the logic of the public interest, not of the free market. Public authorities, at national, regional or local level, must be free to organise public services in their own way for citizens. But we need a clear legal framework defining the special relationship between the provision of public services and Europe's internal market rules. Over the past seven years of negotiations Labour and our allies have succeeded in achieving this in the Lisbon Treaty.

The current Treaties confirm that the Member States are solely responsible for key areas like health and education and expressly forbid EU harmonisation of these sectors (Arts. 149 and 152). The European Court of Justice has repeatedly found that public services provided by or paid for by the State are not covered by EU internal market rules. Again, Lisbon does not change this. In fact, Lisbon places new obligations on the EU to respect 'essential State functions' and there is a new clause stating that any EU-negotiated international trade agreements shall not affect the delimitation of competences between the EU and the Member States nor lead to harmonisation, for example in health and education, where the treaties already exclude such harmonisation (Art.188c).

However the ECJ has found that in some circumstances public services with a 'commercial element', like transport or postal services, can be subject to internal market rules. These circumstances however are not always clear. In some cases, social considerations supersede internal market rules, but in others, internal market rules can apply. The absence of legal clarity in these cases has led to calls for legislation in order to safeguard universal public service delivery. But the adoption of such an EU law isn't possible right now as there is no legal base for it in the current Treaties.

Consequently the Party of European Socialists and the Labour Party helped negotiate the incorporation of the legal base needed which is now incorporated in Article 14 & Protocol 26. Turning logic on its head the NO campaigners have chosen to misrepresent these new provisions as a threat to public services. Sinn Fein do this, even though their own political Group in the EP have supported the demand for these provisions.

Lisbon would in fact enable the adoption of EU legislation, by MEPs and national Ministers, setting out the principles and conditions necessary for the commissioning, funding and provision of public services, while protocol number 26 sets out the principles and values that would underpin such legislation such as: universal access; user rights, preferences and needs; high quality; affordability; and safety. The protocol goes on to say incidentally that the Treaties would not affect in any way the competence of the member states to provide public services. The Charter of Fundamental Rights, also opposed by Sinn Fein, reinforces the citizen's right to access public services, specifically education, social services, and healthcare.

These new provisions have been welcomed by the European Public Service Union representing over 8 million workers in 200 unions from 36 countries. The European Public Health Alliance, the European Trade Union Council for Education, the European Anti-Poverty Network, the European Disability Federation, the European Women's Lobby, Mental Health Europa, and the European Trade Union Confederation, have also welcomed the new provisions as a significant step forward.

The long-standing treaty provisions which seek to prevent distortion of competition, and which has been vital for Ireland's economic survival in the EU are also being misconstrued. These provisions, reiterated in Lisbon, are primarily aimed at ensuring companies cannot abuse monopoly positions or establish cartels. They have been used successfully by the EU in recent years to fine offending firms over €5 billion. In contrast BUPA failed to force the Irish government to abandon risk equalization in the Irish health insurance market using these provisions; a demonstration that we retain our right to set social standards in this area of health cover. But we cannot leave these matters to the vagaries of the courts, we need certainty, hence the new Lisbon provisions referred to.

The allegation that the EU is pushing privatisation is also a myth. Since the Treaty of Rome the EU is prohibited from advocating either privatisation or nationalisation. This 'neutrality' clause, Article 295, is unchanged by Lisbon. For instance EU rules did not force the Irish government to privatise Aer Lingus as the Commission has confirmed to me in writing. On the other hand the recent nationalisation of the Northern Rock bank by the UK government was entirely compliant with EU rules.

That is not to dispute that there are politicians and others who promote privatisation. However it is a step too far to claim that the EU institutions are obliged to achieve that purpose. It was not so in the time of Jacques Delors, it is not so now, and it will not be so with Lisbon.

Finally, to demonstrate how the new Lisbon provisions can be developed, the Labour Party has produced a draft European Regulation. If we succeed in having Lisbon ratified the next political task will be to campaign to have this regulation implemented by the Member State governments. If Lisbon is not passed we will have to start rolling the stone back up the hill all over again. With luck we might get back to where we are now in 10 years time, long after Sinn Fein has faded from the scene, but too late for millions of our citizens to benefit.

Proinsias De Rossa, Labour MEP for Dublin and one of the 200 parliamentarians who the drafted the original European Constitution in 2003.

Tagged with Foreign & European Affairs • lisbonreformtreaty proinsiasderossa