Services of general interest
Interest (in Switzerland public services , public service and public infrastructure ) is in Germany administrative term that also in the political and social science plays an important role discussion. It describes the state's duty to provide the goods and services that are considered necessary for human existence - basic services .
As part of service management, this includes the provision of public facilities for the general public, i.e. traffic and transport , gas , water and electricity supply , garbage disposal , sewage disposal , educational and cultural institutions , hospitals , cemeteries , swimming pools , fire brigade , etc. ( infrastructure ) . Most of these are activities that are now performed by municipal companies .
Concept and task of services of general interest
Ernst Forsthoff introduced the term into the discussion on state and administrative law following Karl Jaspers . The original doctrine of administrative law only knew intervention management . Forsthoff expanded this dogmatics in his 1938 publication in Königsberg , The Administration as Service Providers, with the concept of service administration , which was intended to determine the relationship between the individual and the state providing the service. He saw the need for individuals to have rights to participate in services of general interest. He referred to the state's performance-ensuring activity in fulfillment of social responsibility as services of general interest. Forsthoff defined the term services of general interest in his own words as "those events that were held to satisfy the need for appropriation ".
Forsthoff justified the need for general interest in the administration as a service provider as follows:
"With the bringing together of large populations in the smallest of spaces in the big cities , as brought about by industrial emancipation in the 19th and 20th centuries , new conditions and requirements arose for individual life. They can be illustrated in such a way that one differentiates between the controlled and the effective living space of the individual. [...] The spatial stratification of the population triggered by industrialization has led to the fact that the individual living space under control has decreased more and more (from house, yard and workshop to rented apartment and the workplace in the factory ), while technology reduces the effective living space extraordinarily advanced. With the dominated living space, the individual lost the safeguards that gave his existence a certain independence. Now he was dependent on precautions that came to the aid of his social need and made it possible to live without a controlled living space: gas, water, electrical energy, sewage drainage, means of transport, etc. The social need is therefore independent of wealth . [...] This need To come to the rescue has become a state task, whereby the state should be understood in the broader sense, including the communities. What happens in fulfilling this task is public service. "
This task of keeping the basic supply of essential goods and services "available for everyone at conditions appropriate to the welfare state" corresponded to the assumption of services of general interest by public service providers, for example through a state railway or post office or municipal utilities for water and electricity. In the meantime, however, services of general interest have largely been privatized . As a result, it should “be exposed to the selection function of the competition and thus function as efficiently, flexibly and unbureaucratically as possible”. In the view of Zippelius, however, the welfare state remains “required to intervene to regulate if the necessary basic supply ... is not achieved”, e.g. B. due to strikes over which the affected citizens have no significant influence. In such cases, it would correspond to the original idea of public services of general interest to place the balance of interests between employers and employees in the hands of the state or municipal (i.e. democratic ) overall responsibility, on whose side both employers and employees are represented.
Services of general interest as a legal term
The term “services of general interest”, which is frequently used in public administration practice, is legally an indefinite legal term . It is often used in laws without its content being further defined. In the Treaty establishing the European Community , based on the French term “services publics”, Article 86 (2) of the EC Treaty speaks of “services of general economic interest”. These are vaguely defined as “market-related activities that are performed in the general interest and are therefore linked by the member states with special public service obligations.” These are predominantly understood to be the areas of services of general interest. However, the terms are not completely identical in terms of content. The EU Commission has also adopted the vague legal term in its vocabulary and defines it as “market-related or non-market-related activities that are performed in the general interest and are therefore linked by the authorities to specific public service obligations”. Services of general interest were anchored in the contract at European level with the Treaty of Lisbon in the “Services of general economic interest” regulated in Section 14 TFEU .
The legal basis of services of general interest in Germany is the guarantee of local self-government in accordance with Article 28 (2) of the Basic Law . The GG avoids the term services of general interest, but describes it as “all matters of the local community.” By this, the BVerfG understands those “needs and interests that are rooted in the local community or have a specific reference to it”. Each municipality must decide for itself within the framework of self-administration what ultimately becomes the content of services of general interest. While one municipality is a trade fair location, many other municipalities are not a trade fair location. In one municipality, trade fairs and exhibitions are part of the general interest, in the other not. Services of general interest can therefore by no means be regulated on a nationwide basis. In § 2 para. 2 no. 1 Regional Planning Act is determined that balanced in Germany social, infrastructural, economic, environmental and cultural conditions are desirable. "Sustainable services of general interest must be secured".
Under administrative law, services of general interest are understood to mean all services of the municipality, in the provision of which there is a general public interest . For the BVerfG, services of general interest are “which the citizen absolutely needs in order to secure a decent existence.” According to the German understanding, the design of services of general interest can be economic or non-economic, in competition or as a monopoly, profitable, cost-covering or in need of subsidies. Their spectrum ranges from energy and water supply to sewage and waste disposal, police, fire brigade, hospitals, cemeteries, social housing and public transport to cultural, sporting and social offers. Despite the change, municipal services of general interest continue to be part of the actual core area of self-administration.
Services of general interest as a term in administrative law
The legal relevance of the term services of general interest is legally unresolved and heavily disputed. In administrative law, there is hardly a term that has triggered a greater fascination, but on the other hand has also caused more annoyance than the concept of services of general interest. On the one hand, it is often used in the discussion of administrative law and is used as an argumentation support. On the other hand, it is pointed out that it is more of a sociological term with a primarily “problem-clarifying, less problem-solving function”. Even Forsthoff had to admonish in 1959 that the term became a “commonplace concept”, “with which one can prove everything and therefore nothing”. In his book “The State of Industrial Society” Forsthoff admitted that it was a concept of political science “as it was understood in the 18th century ”.
Some municipal codes of the federal states use the term services of general interest: In Baden-Württemberg (Section 102, Paragraph 1, No. 3 GemO), Bavaria (Art. 87, Paragraph 1, No. 4 BayGO) and Thuringia (Section 71, Paragraph 2, No. 4, KO ) the municipal economic subsidiarity clause only applies “outside of municipal services of general interest”. However, because of the legal vagueness of the term services of general interest, this is viewed as a problematic regulation.
Services of general interest and communal services today
In the context of a debate about privatization, the term is sometimes interpreted in a polarizing way. Those who think statistically and see the state primarily as a “guaranteeing state” tend to give the term a special and important role. Liberal politicians believe that the end of services of general interest has come. In any case, it can be observed that many activities of services of general interest formerly perceived by state or municipal monopolies now have to compete with private providers, or that traditional services of general interest are now also perceived by private individuals. In the course of the progressive Europeanization of commercial law, which increasingly provides for the public tendering of previous municipal tasks, even the municipalities and representatives of the municipal economy see the task of the municipal economy shrinking. However, public services of general interest can also be organized privately. In a great analogy to the “strong state” in the regulatory system of the social market economy , the guaranteeing state restricts itself in this case to the setting of framework conditions, in this case contractual goals, and leaves the implementation to the private initiative.
On the other hand, from around the 2000s onwards, there was also a counter-trend towards remunicipalisation (e.g. water supply in Berlin, energy networks in Hamburg, etc.), partly supported by petitions .
On June 23, 2017, International Public Service Day, the first day of services of general interest took place.
Digital services of general interest
In the current discussion of the digitization of all areas of life, the question also arises whether “digital services of general interest” belong to the tasks of the public sector. These include B.
- digital infrastructure ( broadband internet access , WLAN hotspots, IT equipment),
- digital content ( open data , live streaming , social media channels),
- enabling new services ( public space servers, labs, coworking spaces).
- Ernst Forsthoff: The administration as a service provider. Stuttgart 1938.
- Ernst Forsthoff: Services of general interest and the municipalities. Stuttgart 1958.
- Ernst Forsthoff: The state of industrial society. Shown using the example of the Federal Republic of Germany. Munich 1971.
- Fritz Ossenbühl: Services of general interest and private administrative law. In: DÖV . Issue 15/16, year 1971, p. 513 ff.
- Johannes Hellermann: Local services of general interest and communal self-administration. Tübingen 2000, plus Habil. Bielefeld 1998.
- Ulrich Hösch: The municipal economic activity - participation in economic competition or services of general interest. Tübingen 2000.
- Fabian Loewenberg: Public service and public services in Europe. Berlin 2000, ISBN 3-8305-0206-0 .
- Johann-Christian Pielow basic structures of public supply. Tübingen 2001, also Habil. Bochum 1998.
- Jens Libbe, Jan Hendrik Trapp: Safeguarding the common good as a challenge - municipal control potential in differentiated forms of performing tasks. A position determination. ( Memento of August 13, 2007 in the Internet Archive ) (Web archive)
- Christian Linder Services of general interest in the constitutional order of the European Union. Frankfurt a. M. 2004.
- Jürgen Löwe: Public companies in the market economy? A contribution to the redefinition of the relationship between economy and politics. In: Journal for Public and Public Sector Enterprises. (ZÖGU), issue 4/2001, pp. 413-431.
- Jens Kersten: The development of the concept of services of general interest in Ernst Forsthoff's scientific work. In: The State. 44 (2005), issue 4.
- Milos Vec: Services of general interest. In: Cordes, Lück, Werkmüller (Hrsg.): Concise dictionary for German legal history. 2nd, completely revised and enlarged edition. 4. Delivery, Berlin 2007, pp. 933-935.
- Alexandra Kemmerer: When the citizens still knew the limits of their responsibilities. Is “services of general interest” an existentialism? Forsthoff's key concept of state action is historized. In: Frankfurter Allgemeine Zeitung. August 29, 2007 (No. 200), p. N 3.
- Claudia Neu (ed.): Services of general interest. A sociological approach. Heidelberg 2009
- Tobias Bringmann: Services of general interest today and tomorrow - Stadtwerke's future model, in: Gerald Sander (ed.): Water, electricity, gas. Municipal services of general interest in upheaval. On the tension between public services of general interest and EU legal requirements. Hamburg 2010
- Alban Knecht: Services of general interest as a common task (PDF; 3.1 MB), In: Armutskonferenz (Ed.): What belongs to all - Commons. New perspectives in the fight against poverty. ÖGB-Verlag, Vienna 2013, pp. 61–72.
- Sigrid Boysen, Mathias Neukirchen: European State Aid Law and Member State Services of General Interest. Baden-Baden 2007, ISBN 978-3-8329-2303-7 .
- Mathias Neukirchen: Transparency Guideline and Transparency Guideline Act: A Guide for Practice. In: Europarecht 2005. Issue 1, ISSN 0531-2485 , pp. 112-123.
- Charles B. Blankart, Björn Gehrmann: The Third Sector in the European Union: Services of general interest from an economic point of view. (PDF; 363 kB), In: Hans-Jörg Schmidt-Trenz, Rolf Stober (Ed.): Yearbook Law and Economics of the Third Sector 2005/2006 (RÖDS). Nomos, Baden-Baden 2006, pp. 36–71.
- Benjamin Linke: Ensuring the service of general interest in local public transport. Baden-Baden 2010, ISBN 978-3-8329-5502-1 .
- Aid for universal postal services (PDF; 333 kB)
- Felix Berschin's legal dissertation, "Services of general interest through competition", Heidelberg 2000, as a PDF document (2.17 MB)
- Information from the Schader Foundation on services of general interest
- Explanation of terms on the website of the local political information library of the Heinrich Böll Foundation
- Glossary on the subject of services of general interest on the pages of the SPD parliamentary group
- European Commission Green Paper on Services of General Interest (PDF; 487 kB)
- FAZ from September 27, 2004 online "Services of general interest between competition and common good"
- On the way to a new concept of municipal services of general interest (PDF file; 114 kB). Retrieved July 30, 2015.
- Gerhard Pöschmann: Compatibility of internal market and services of general interest , in: Österreichische Gemeindezeitung of October 18, 2007 (No. 10/2007)
- ^ Ernst Forsthoff: The administration as a service provider , 1938.
- ↑ Julia Brehme: Privatization and regulation of public water supply , Mohr Siebeck, 2010, ISBN 978-3-16-150399-3 , p. 134 ff.
- ^ Ernst Forsthoff: The administration as a service provider. 1938. Quoted from Ernst Forsthoff: The state of industrial society. 1971, p. 75 f.
- ↑ Reinhold Zippelius , Allgemeine Staatslehre , 16th edition, § 35 III 1.
- ↑ Reinhold Zippelius, Allgemeine Staatslehre , 16th edition, § 35 IV 5.
- ↑ Reinhold Zippelius, Allgemeine Staatslehre , 16th edition, § 26 V 2.
- ↑ Jan Kuhnert, Olof Leps: European law requirements for a new non-profit housing . In: New non-profit housing . Springer Fachmedien Wiesbaden, 2017, ISBN 978-3-658-17569-6 , p. 213-258 , doi : 10.1007 / 978-3-658-17570-2_8 ( springer.com [accessed February 28, 2017]).
- ↑ EU-COM 270 of May 21, 2003.
- ↑ BVerfG, decision of November 23, 1988, Az. 2 BvR 1619, 1628/83, BVerfGE 79, 127 , 151 - Rastede.
- ↑ BVerfG, judgment of March 20, 1984, Az. 1 BvL 28/82, guiding principle = BVerfGE, 66, 248, 258.
- ↑ Thorsten Franz: Making a profit through municipal services of general interest. 2005, p. 75.
- ^ Ernst Forsthoff: Der Staat der Industriegesellschaft , p. 77.
- ↑ Thomas Geer: On the responsibility of the social market economy. In: Responsibility as a market economy principle: on the relationship between morality and economy. Campus Verlag, 2008, ISBN 978-3-593-38639-3 , p. 536.
- ↑ Klaus Wirth, Bernhard Krabina: Act now! Positioning, raising awareness, using the opportunities and potential of digitization! In: Forum Public Management. 2017, 2, pp. 4-6.