L'accesso ai servizi di interesse generale. de-regolamentazione e ri-regolazione del mercato e ruolo degli Users' Rights

The target of the present research consists in selecting and building the contents of the new Services of General Interest (SGIs) fixed in the post Amsterdam European legislation. In fact, besides art. 86 EC Treaty, where SGIs are considered an exception to the competition and access to market rules (with market fails), the “new” art. 16 EC Treaty, as well as art. 36, Charter of Fundamental Rights and, recently, art. III-122, European Constitutional Treaty, try to (partially) dis-articulate Access-to-SGIs Principle from the Competition and European Economic Law. Now SGIs really appear to constitute a Fundamental Right of all individuals of whichever nationality to expect from European Union (EU) and Member States (MSs) those services which appear necessary to promote the European cohesion and welfare. SGIs are not, now, only something related to market regulation in order to protect competitors; financial and banking services, transport services, energy services, telecommunications, hospitals, etc., start to appear as a real obligation of the EU and MSs which can structure individuals expectations and claims. We will see that this dis-articulation within SGIs concept does not seem absolute since the same principle appears to find a limit in the competition rules. In the first part of the present work we address the new figure of SGIs in order to check if European Law really structures juridical positions which individuals are allowed to invoke against EU and MSs (on the basis of subsidiary). We will see – in this framework – the importance of the “constitutional” rule embodied in art. 16, EC Treaty, and art. III-122, European Constitutional Treaty, since such rules directly create an obligation on EU and MSs to “guarantee” those SGIs being coherent with a minimum basis in terms of efficiency, quality and security (Basic Services – BSs - ). Consequently, we will see that failing to fulfil their legal obligation EU and MSs are required to pay damages to the SGIs Users and Consumers who did not get at least BSs. In the second part we will present some conclusions in terms of impact of the new Access-to-the-SIGs Principle on the Regulation of the entrepreneurial activities. We will look at the de-regulation occurring in the market regarding exclusively antitrust targets which is coupled with a re-regulation process in order to promote the Users’ Rights. In a way values which have been considered permanently outside the framework of the regulatory activity penetrates and influence it. The third part of the document summarizes some solutions actually being studied by the European Commission (mainly in the transport area) in order to fulfil, from the part of the EU, the obligation fixed in art. 16. We will see that some important steps have been – and are being – processed.