20.10.2011 klo 11:13

Lausunto EU:n valtiontukisäännöksistä ja SGEI-palveluista

European Commission
Directorate General for Competition

Re: Consultation on the Review of the State Aid Rules on SGEI

On the behalf of the Federation of Finnish Enterprises (FFE), ID number 07265875082-72, please find the following comments as our contribution to the consultation:

Introductory remarks:

The ultimate goal of SGEI regulation should be opening public markets to free competition, any discrimination of any party should not be allowed, nor should any party be favored.

The legislative framework should be clear, transparent and based on the Think Small First –principle. It is obvious that small companies meet great challenges when they try to run their businesses and compete within the SGEI regulation environment. It should be borne in mind that one of the key policy goals communicated by the Commission and the European Parliament as regards the ongoing revision of the Public Procurement legislation is enhancing SMEs access to markets. It is of utmost importance that the same principles are followed while revising the SGEI rules.

The SGEI regulation should be consolidated and integrated in the Public Procurement regulatory framework. This is the only way to secure that there is always a sufficient effort to organize public services in the most efficient way.

In Finland, the complex legislative framework – public purchase, state aid, SGEI rules – has already lead to a situation where public sector operators tend to choose certain legal forms in order to avoid the applicability of the rules governing competition, which have been created to guarantee competition and the operability of the markets. In addition to this, there is a growing problem caused by public entities that are endangering market balance in such situations where there have always been active private companies offering their services.

State aid framework:

In general, we welcome there requirements laid down in Commission´s document as a good starting point to revising the SGEI framework. However, there are still some elements, which may distort competition.

The most fundamental rule has to be that any services can only be defined SGEI services if those services are not provided or cannot be provided by normal competitive markets. Testing the markets will always have to take place prior to defining a service SGEI service. Thus, we feel that the best way of testing the market and securing efficient use of public resources, a similar process to public tendering should take place before SGEI contract is awarded.

It is also of utmost importance that the rules are enforced efficiently. Once the SGEI service provider has started its operations, it is very difficult – at least for other companies in the market – to react to possible illegal state aid in its various forms. This is quite a serious problem regarding the volume of potential SGEI services.

As a detailed comment we would like to point out that in the definition of circumstances defining competition distortion (e.g. sections 2.9:49 and 2.9:50) the wording used is “more serious competition distortions in the internal market”. We propose that the wording should preferably be “significant competition distortions”.

Draft de minimis:

We feel that the general de minimis rules should be applicable here, too. The new 150.000 € de minimis rule would add the complexity of the state aid regulation as a whole. If new rules will be given, the amount set should be lower than the proposed 150.000 €.

The regulation would apply to municipalities with population exceeding 10.000 inhabitants. We do not find this threshold appropriate, since in many business sectors there are well functioning market dynamics even in very small municipalities. This limitation to the applicability of the rules should in any case be reduced to e.g. 5.000 inhabitants.

Draft decision:

In our opinion the current threshold of 30 million € defining the obligation to notify an individual state aid should be decreased to 15 million €.

Additionally, the list of exemption from notification should not be widened. We want to emphasize that for example in the sectors of health and social welfare services the markets have been evolving positively in the recent years at least in Finland. This development should not be disrupted by opening the list of exempted services. We do not share the Commission view that “… the intensity of the distortion of competition in those sectors is relatively minor…”. Providing health and social welfare services takes place in a very turbulent business environment due to many reasons. This turbulence must not be increased.

We are in favor of limiting the period for which the SGEI services can be entrusted to a service provider. A fixed period of 5 or in some defined special circumstances 10 years might be appropriate to ensure that competition is not hindered.

Federation of Finnish Enterprises

Mr. Antti Neimala