The Division of Powers between Member States and the Community - Term Paper Example

The Commission continually stresses the neutrality of Article 295 EC. Many of the demands of the European Monetary Union, EMU and the operations of the Internal Market have deprived the Member States of alternatives on how to organize and supply services of general interest. Nevertheless, in all the Commission’s Communications, it has been stressed that it is the responsibility of all public authorities at the appropriate local, regional or national level to define the mission of services of general interest and the way these will be fulfilled.

This process has to have full transparency. It is essential to determine as to what services of general interest remain within total Member State competence, which falls beyond the purview of Community Law.  The importance of this issue can be gauged from the fact that most of the litigation over the scope of Article 86(2) EC arises from opportunistic individual litigation and operates ex-post on a Member State’s policy. In this regard, it has to be considered whether, the definition of Community versus Member State Competence by Buendia Sierra be relevant, as he is of the opinion that a division between State activities of “regulation”, which would not be considered economic activities and services offered by the public sector.

Such ideas are in consonance with EU thinking, as a parallel might be drawn with Keck and also the reluctance of the ECJ and Commission to apply regulatory activity of the state within Articles 81 and 82 EC. These ideas have been reinforced in recent ECJ case law where a distinction continues to be drawn between economic and non-economic activities. Services of general interest are subject to the growing Europeanization of public services and though, Member States can choose how to deliver public services, such choice is constrained by Community law where the application of state aid and competition rules is involved.

Cleared guidelines are required in respect of legal certainty as has been the case with respect to the provision of healthcare by private contractors in the UK.