Comparative public law in Europe
The legitimacy of the European Union depends on its ability to strike the right balance between further European integration and the preservation of national diversity. Striking such a balance is a difficult exercise. The encounter of the European Union law of the internal market and the organisation of the public sector within Member States constitutes another illustration of this difficulty. It has long been thought that the law of the internal market would have no impact on the organisation of public bodies and the public sector within Member States. However, from the 1990s onwards, the European Union has set several limits to the autonomy of Member States in this area. These limits to State autonomy have been justified by the obstacles that some national choices of organisation of the public sector have created for the completion of a well-functioning internal market. For example, in 1999, the Court of Justice decided that the relations between public bodies fell within the scope of European public procurement law and its competition requirements. This decision paved the way for a further extension of the scope of the internal market and the freedoms of movement. However, long-standing administrative traditions and arrangements at the national level such as several forms of inter-municipal cooperation in France and Belgium have been challenged by the European Commission and private undertakings as a result of this case law. These challenges were met with strong resistance and criticism in those two States.
Building on a doctoral dissertation defended by the author in 2016 at the Université libre de Bruxelles, Emmanuel Slautsky’s book “L’organisation administrative nationale face au droit européen du marché intérieur” focuses on the difficulties arising from this encounter between the European Union law of the internal market and the organisation of the public sector within Member States and assesses this development of European Union law in the light of the provisions of the European treaties protecting national diversity.
The book examines, firstly, three cases in which European Union internal market law limits the autonomy of Member States in organising their public sector. These three case studies are: the application of free movement and public procurement competition requirements within the public sector; the incompatibility between the legal status of some public undertakings and the European prohibition of State aid; and the obligation of Member States to trust the regulation of utilities sectors to independent regulators (the sectors of electronic communications and electricity are examined). The book assesses, secondly, whether the autonomy and the administrative specificities of Member States, as protected under European Union primary law, have been respected in these three case studies. An analysis of the reception of the studied European Union law requirements in Belgium, France and the United Kingdom is included in this assessment. It is submitted that the autonomy of Member States in organising their public sector may be limited under the European treaties but that the three analysed European Union law requirements go too far in restricting this autonomy and therefore are not fully compliant with European primary law.