INTRODUCTION

CSOs evolve in an increasingly competitive environment where fighting for market shares against for-profit companies, but also against their non-profit counterparts, is very much the order of the day. At the same time, CSOs have a long tradition of cooperation between themselves which sometimes conflicts with the discipline imposed by competitive markets. They may conclude catchment area agreements so as to avoid ‘wasteful duplication’. It is also quite common for CSOs to agree on common pricing strategies which reflect social concerns by subsidising below-cost services to needy clients with higher fees paid by better-offclients. Yet, CSOs are not-for-profit: they restrict competition with a view to further the social goals by which they are statutory bound, whereas commercial companies are presumed to do so with a view to increase profit. This fundamental difference raises the question of whether European competition law integrates CSOs’ distinctiveness as a third sector between state and market or, on the contrary, if it assimilates them to for-profit companies.

This is reminiscent of an issue which has attracted the attention of many scholars before: can European competition law internalise public service values? Although pertinent, this chapter does not address this question in detail. It mainly considers the possible reconciliation of European competition law with the social values promoted by civil society rather than with the public service values guaranteed by the state. This book argues that too much focus on the state-centred conception of the general interest underpinning the notion of SGEI found in Article 106(2) TFEU has lost sight of the fundamental contribution of civil society to the welfare of modern societies. CSOs have pioneered many social services which have subsequently been ‘entrusted’ to them by the state and they are still intervening today in response to the failure of the state to answer society's most basic needs. States are well aware of civil society's essential role in promoting welfare and direct significant amounts of subsidies towards it as a result. For the above reasons, it seems important to analyse European competition law's ability to account for the distinctive features of CSOs.

With this thread running through the chapter, it will first be examined under what circumstances CSOs are considered as ‘undertakings’ and, therefore, enter the jurisdictional boundaries of European competition law (5.2). CSOs will then be confronted to the substance of European competition law.