1.Introduction

1.1.The Question and the Context in which it is raised

This paper concerns the concept ‘Services of General Interests’ (SGIs) and the question of whether the characteristics that give them special status in EU law provide guidelines for a definition of ‘publicness’. This helps to identify public services, provided by private bodies under service contracts, that are subject to general principles of Icelandic administrative law.

The concern is for the legal certainty of the users of public services. The Icelandic Administrative Procedure Act No. 37/1993 applies to the state and municipalities when taking decisions on individuals’ rights and obligations. Accordingly, the act does not apply to the relations between the user of statutory services and a private body providing services under a service contract, unless authorised by law.Alþt. 1992-1993, þskj. 505 - 313. mál, comment to Article 1 of the bill which became the Administrative Procedure Act. One of the act’s main objectives is to ensure the legal certainty of citizens in their relations with public authorities. Application of its rules increases the likelihood of fair and correct implementation of law. For instance, the right to be heard and the principle of proportionality can contribute to the outcome of a case, or in the context of service contracts, the realisation of the various services the citizens are to receive by law. If the protection provided by public administrative law is lost when contracted out, the users of services, provided by private entities under service contracts, may be in a different position in this respect from those users that receive such services from public authorities.

According to general principles of autonomy, freedom to contract (private law) and the legality principle (public law), administrative obligations do not bind private entities – unless prescribed by law and contract. Thus, the legal situation can be clarified by prescribing the applicability of administrative law in legislation or the terms of service contracts. However, a sample of service contracts, concluded by Icelandic authorities with private entities, has revealed that the legislator and public authorities do not necessarily address the relevance of administrative principles to the relationship between the provider and the users of services delivered under a service contract.Margrét Vala Kristjánsdóttir, ‘Gildissvið Reglna Stjórnsýsluréttarins Um Þjónustu Einkaaðila Samkvæmt Þjónustusamningi’ [2020] Tímarit Lögréttu 7–11; Margrét Vala Kristjánsdóttir, ‘Administrative Law and Service Contracts - Adding Colour to the Grey’ (PhD thesis, Oslo University 2019) Ch. 4. This is the situation dealt with in this paper.

From the point of general rules of delegation, a private party carrying out legally delegated activities acts in the same capacity as the delegating authority.Páll Hreinsson, Stjórnsýsluréttur-Málsmeðferð (Bokautgafan Codex 2013) 218. The question is whether a private party, delivering public services under a legally authorised service contract, is subject to the same constraints or controls as the public authority, including those contained in public administrative law.

This is where unwritten general principles of Icelandic administrative law come into the picture. They are not subject to the limited scope of the Administrative Procedure Act. The general principles have wider scope – they can apply, insofar as the contracted activities concern public administration in the substantive sense.This assertion relies on an analysis of the interpretation, meaning and development of the general authorisation for concluding a service contract in Article 40 of the Public Financing Act, No. 123/2015 and its predecessor, Article 30 of the now repealed Government Financial Reporting Act, No. 88/1997. For the analysis, see Kristjánsdóttir, ‘Gildissvið Reglna Stjórnsýsluréttarins Um Þjónustu Einkaaðila Samkvæmt Þjónustusamningi’ (n 2). Thus, through a functional approachA functional approach has received increased attention and support in Nordic administrative law. See for instance, Erik Boe, ‘Forholdet Mellom Privatrett Og Offentlig - Nye Tendenser’ in Peter Lödrup and others (eds), Rettsteori og rettsliv: Festskrift til Carsten Smith til 70-årsdagen 13. juli 2002 (Universitetsforlaget 2002) 119; and Bent Christensen, Forvaltningsret: Opgaver : Hjemmel : Organisation. (2. udgave., Jurist- og Økonomforbundet 1997) 88; Karsten Naundrup Olesen, ‘Varetagelse Af Offentligretlige Interesser Ved Udlicitering’ in Carsten Henrichsen, Peter Blume and Steen Rønsholdt (eds), Forvaltningsretlige perspektiver. (Jurist- og Økonomforbundets Forlag 2006) 405. to public administration, the type or character of public functions is key to the applicability of general principles of administrative law to particular actions performed under service contracts.

On the other hand, the fact that services are provided under a service contract alone does not suffice to establish the applicability of public administrative law to the contracted activities. The ‘publicness’ of the activity in question must be established. When seeking to define ‘publicness’, one must keep in mind that the activities assigned to public authorities are of various kinds and belong to different categories or fields of law. Which distinctive features contribute to the ‘publicness’ of a particular function, depends on the societal structure and realities at a given time and place. The question of ‘publicness’ may, therefore, be answered differently in different countries and at different times.See examples in Peter Cane, Administrative Law (4. ed, Oxford Univ Press 2004). The idea that public services can be defined as activities in the public interest (substance) for which public authorities (form) are responsible, is widely shared,Elisenda Malaret Garcia, ‘Public Service, Public Services, Public Functions, and Guarantees of the Rights of Citizens: Unchanging Needs in a Changed Context’ in MR Freedland and Silvana Sciarra (eds), Public services and citizenship in European law: public and labour law perspectives (Clarendon Press; Oxford University Press 1998) 57. It is pointed out that these are the underlying common denominators of public services in the Member States of the EU. at least in countries that more or less share ideas regarding the relations between the state and society. The question of ‘publicness’ relies on the type of relations between the state and society, referred to as the welfare state.The delegation of public services to private parties may be seen as one of the manifestations of the market state. However, the involvement of the private sector cannot be seen as a retreat from the social interests that characterise the welfare state. There is a connection between public functions and the entitlements of the welfare state. Private participation in the provision of welfare to citizens is meant to contribute to efficiency and lower costs of public activities, but not to change the purport of public functions. The typical welfare state ensures its citizens’ entitlements, for which state and municipalities are responsible.

In the Icelandic context, certain ‘publicness’ criteria have been deduced from judgments of the Icelandic Supreme Court, opinions of the parliamentary Ombudsman, and theories on private liability for human rights violations.Margrét Vala Kristjánsdóttir, ‘Defining “Publicness” in Service Contracts - Adding Colour to the Grey’ (2021) 17 Sjórnmál og stjórnsýsla, veftímarit; Kristjánsdóttir, ‘Administrative Law and Service Contracts - Adding Colour to the Grey’ (n 2) Ch. 5. Together, these form the grounds of a general holistic three-phased test for the definition of publicness which may help differentiate between those services to which principles of administrative law apply from those they do not. First, the ‘initial points’ cover the extent of public funding, the extent to which a private alternative is entrusted with the performance of a statutory activity, the exercise of statutory power, and public service. The second, the ‘material points’, cover human rights, legal certainty, and public interest in a broad sense. Finally, the ‘supporting points’ include factors such as public control, supervision and the extent to which the functions in question are governed by public law. As holistic criteria, the value of each criterion may differ, however, depending on the circumstances in each case and the combination of the applicable criteria.

The task of this paper is to examine whether the definitions and examples of SGIs are comparable and support these criteria, and/or provide additional guidelines as to how public functions, to which Icelandic public administrative law applies, may be singled out. Before further explaining the reason for seeking support from SGIs in this regard, a few words on the link between EU and Icelandic law are appropriate.

1.2.The EEA Agreement

The EEA agreement is rooted in the EU Treaties. It is enacted by the Icelandic European Economic Area Act, No. 2/1993. Based on the agreement, certain EU legislation is included in Icelandic law: legislation covering the four freedoms, i.e., the free movement of goods, services, persons, and capital. It also entails a system to ensure undistorted competition and cooperation in other important areas such as research and development, education, social policy, and the environment.The second paragraph of Article 1 of the EEA Agreement (OJ No L 1, 3.1.1994, p. 3; and EFTA States’ official gazettes). Matters become part of the AgreementAs stated in Article 2(a) of the EEA – Agreement, the term ‘Agreement‘ means ‘the main Agreement, its Protocols and Annexes as well as the acts referred to therein.’ According to Article 119, these form the integral part of the agreement. by the means of a decision of the Joint Committee, which is responsible for the management of the agreement. Agreement between the EFTA states on the establishment of a surveillance authority and a court of justice (the Surveillance and Court Agreement) OJ L 344, 31. 1.1994 and the EFTA States’ official gazette. The aim of the Agreement is, inter alia, to promote the ‘respect of the same rules, with a view to creating a homogeneous European Economic Area’.See the first paragraph of Article 1 of the EEA Agreeement. For the realisation of its aim, the Contracting Parties shall ensure fulfilment of the obligations arising out of the Agreement and homogenous interpretation and application of EU/EEA law.

Accordingly, as an EFTA Member State, Iceland is subject to EU rules in various substantive fields under the EEA Agreement, including EU legislation concerning Services of General Interest (SGIs) that have been implemented in Icelandic law or derived from the relevant case law of the EU and EFTA courts. The special status of SGIs, as developed and categorised in EU law in the fields to which the EEA Agreement applies, is thus to be reflected in Icelandic law. The implemented law should generally state these services and their effect with regard to the application of the rules of the internal market; thus, SGIs are of relevance in the execution of Icelandic law.

As for administrative law, in particular, it is noted that administrative tasks in the EU are undertaken on two levels – the EU and the national level. On the one hand, EU administrative law governs the execution of EU law by the institutions and bodies of the EU itself. On the other hand, the rules of principles of EU administrative law place requirements on the Member States concerning the application of the substantive rules of EU law. The EEA Agreement does not prescribe the administrative rules that apply in connection to the application of its rules. The application of rules implemented in Icelandic law on the basis of the EEA Agreement is generally, under the principle of procedural autonomy, subject to national administrative rules – insofar no special rules, written or unwritten are derived from EEA law.Hreinsson (n 3) 1017. As national law generally includes the same administrative provisions as EU law,Although in some instances they may be different as regards structure or content, see Niels Fenger, ‘New Challenges for Administrative Law Theory’ in Anna-Sara Lind and Jane Reichel (eds), Administrative law beyond the state (Martinus Nijhoff Publishers 2013) 122. or more detailed provisions,Hreinsson (n 3) 55. conformity with European administrative rules may, in practice, not need to be put to the test.See Niels Fenger, EU-rettens påvirkning af dansk forvaltningsret (2018) 10. If it does, however, the national law should – if at all possible – be interpreted in conformity with EU legislation, written as well as unwritten,Hreinsson (n 3) 51–52. given that the case in question concerns the implementation of EU/EEA law. Based on the principles of homogeneity, conform interpretation, and effectiveness, the contracting states must respect EEA requirements that are wider and modify national administrative rules.Fenger (n 17) 11–13. Both legal systems thus apply in parallel to the same case; the doctrine of interpretation ‘has simply been doubled.’Fenger (n 15) 121; Bjørnar Alterskjær and Nils Fenger, ‘EØS-Rettens Betydning for Norsk Forvaltningsrett’ (2006) 41 Jussens venner 171, 172.

The rules of the implemented legislation regarding SGIs, including any possible administrative rules, apply to their performance. This, however, is not the main concern of this paper. It does not examine how the special status of SGIs or administrative rules are implemented in Icelandic law. It is about the characteristics that make certain services so special that they are given special status in EU law and if this status tells us something about ´publicness’ that may be useful for recognising public functions, provided under service contracts, to which principles of Icelandic administrative law may apply.

Section 2 below explains the features shared by SGIs and public services at the national level and explains the idea of looking at the former in search of criteria for identifying public functions in the sense of public administrative law. Section 3 outlines the legal basis and definitions of the term ‘SGIs’ and its sub-terms. Section 4 examines the criteria and examples of SGIs that may contribute to the definition of ‘publicness’. Section 5 states conclusions.

2.Why seek Advice from SGIs?

The concept of Services of General Interest is based on EU values and goals concerning the public and is of ‘central importance to a welfare state.’Ulla B Neergaard, ‘Services of General (Economic) Interest: What Aims and Values Count?’ in Ulla B Neergaard, Ruth Nielsen and Lynn M Roseberry (eds), Integrating Welfare Functions into EU Law - From Rome to Lisbon (DJÖF Publishing 2009) 194. Its objective is to ensure the availability of well-functioning, high quality, accessible, and affordable services of general interest to the public.Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - White Paper on Services of General Interest’ COM (2004) 374 final 3. As the market may not have sufficient incentive to provide such services, the argument goes, public-interest objectives are ensured by subjecting their provision to certain obligations regardless of their profitability.ibid 23. This means that the general rules governing the EU internal market, ensuring the free movement of goods and services within the Union, do not reach the provision of certain types of services. Services defined as ‘non-economic services of general interest’ (NSGIs) are placed outside their scope, and services categorised as ‘services of general economic interest’ (SGEIs) justify deviations from such rules.Some aspects of how such services are organised may however be subject to other general Treaty rules, such as the principle of non-discrimination, see Commission, ‘A Quality Framework for Services of General Interest in Europe’ COM(2011) 900 final 3. As the rules of the internal market must not ‘impinge on the powers retained by the Member States’,Koen Lenaerts, ‘Defining the Concept of “Services of General Interest” in Light of the “Checks and Balances” Set out in the EU Treaties’ 19 Jurisprudence 1247, 1264. they are to define the services they consider to be of general interest.Commission, ‘Communication from the Commission - Implementing the Community Lisbon Programme - Social Services of General Interest in the European Union’ (2006) COM (2006) 177 final pt Introduction. However, to fulfil objectives of general interest, action must be taken at both EU and national levels.Commission, ‘Communication from the Commission - Services of General Interest in Europe’ OJ 2001 C 17/04 para 9. The message from the EU to the Member States, therefore, is that certain values matter and that they must take action towards their realisation.Commission, ‘Communication from the Commission - Services of General Interest in Europe’ (n 27), Executive summary, paras 8-9. It is stated that SGIs are part of values shared by the Member States and a key element in the European model of society. Accordingly, the Member States are not entirely free to define what they mean by Services of General Interest. The missions, standards, and obligations to be fulfilled must take account of the EU objectives in this respect.Commission, ‘Communication from the Commission - Implementing the Community Lisbon Programme - Social Services of General Interest in the European Union’ (n 26) pt Introduction. The question has even been raised whether the margin of discretion enjoyed by the Member States still exists, see Lenaerts (n 25) 1264.

The Member States are, on the other hand, free to decide whether to entrust the provision of such services to a private entity or provide them themselves.Commission, ‘White Paper on Services of General Interest’ (n 22) 15. EU law is neutral with regard to the identity of the provider of Services of General Interest. A provider of such services is subject to the same rights and obligations under EU law, irrespective of whether this body is classified as a private or public entity.Commission, ‘Communication from the Commission - Services of General Interest in Europe’ (n 27) para 21. See also Commission, ‘White Paper on Services of General Interest’ (n 22) 23.

As it is the activity, rather than the actor, which determines whether it constitutes an SGIs, it seems a good idea to ask whether the definitions and the examples of the services that have been acknowledged as SGIs can be viewed as indicators of ‘publicness’ of an activity carried out under a service contract. SGIs under EU law and public services at the national level share important features. Both concepts concern services of a special character for which public authorities are responsible. They are of a dynamic and evolving nature and adapt to changing times, social policies and perceptions as to which services are considered important enough to justify and allow deviations from general rules within each legal system.For SGIs see, Wolf Sauter, ‘Services of General Economic Interest and Universal Service in EU Law’ [2008] European Law Review 175; Lenaerts (n 25) 1264. At the EU level, services constituting SGIs may conflict with the general principles of the internal market.Sauter (n 32) 175; Lenaerts (n 25) 1264; Ulla B Neergaard, ‘Services of General Economic Interest: The Nature of the Beast’ in Markus Krajewski, Ulla B Neergaard and JW van de Gronden (eds), The changing legal framework for services of general interest in Europe: between competition and solidarity (TMC Asser Press 2009) 19; Commission, ‘A Quality Framework for Services of General Interest in Europe’ (n 24) 9. The effectiveness of the relevant EU Treaty provisions, governing the internal market, must thus be balanced against the general interest pursued by such servicesLenaerts (n 25) 1249. and be excused from such rules for the parts that constitute SGIs.Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Accompanying the Communication on “A Single Market for 21st Century Europe” Services of General Interest, Including Social Services of General Interest: A New European Commitment’ (2007) Com (2007) 725 final 5. See also, Commission, ‘Communication from the Commission of 20 December 2011 on the Application of the European Union State Aid Rules to Compensation Granted for the Provision of Services of General Economic Interest’ (2012) OJ C 8/02 para 47.

At the national level, the involvement of public authorities and control under public law principles may conflict with general principles of private law. Here, the balancing is, in short, one of public interest against the freedom of individuals to act and not to be subject to any obligations without legal authorization. Thus, a private body, engaged in economic activities that otherwise would be subject to the rules of private law, becomes subject to public law principles for the parts that constitute public administration in the substantive sense.

According to the above, an analysis of the nature of particular tasks is needed in both fields. Activities that may be classified on either side of a public-private scale do not raise special concerns. In the EU context, market services may be placed at one end and are, as such, placed within the competence of the EU. The exercise of public authority may be placed at the other end;Neergaard, ‘Services of General Economic Interest: The Nature of the Beast’ (n 33) 20, Figure 1. this is a matter of national competence. In the context of public administrative law, private functions may be placed at the one end and the public functions of public authorities at the other. Here, the choice of applicable rules is not difficult. However, the placement of a particular function may appear to be somewhere in the space – the ‘grey area ‘or ‘grey zone’ – between the firmly ‘public’ and ‘private’ categories.See illustration in ibid. See also; Commission, ‘Commission Staff Working Document - Guide to the Application of the European Union Rules on State Aid, Public Procurement and the Internal Market to Services of General Economic Interest, and in Particular to Social Services of General Interest’ Commission Staff Working Document SWD(2013) 53 final/2 23. In this case, this situation must be clarified to determine the appropriate set of rules.

3.SGI(s) - The (Legal) Concept(s)Besides legislation, the overview relies on the various communications of the Commission of the European Communities, in which the Commission has set forth definitions on SGIs and the related (sub-) terms, the Commission Decisions and several of the many academic writings concerning the matter of SGIs in various context. The overview does not provide an independent analysis of EU case law referred to in these sources.

3.1.Terms and Sources

Services which public authorities class as being of general interest and subject to specific public obligations have been referred to as SGIs ever since the adoption of the Commission’s Communication in 1996.Commission, ‘Communication from the Commission - Services of General Interest in Europe’ (1996) OJ 1C 281. With the Treaty of Lisbon 2009,OJ C 306, 17.12.2007, 1–271 Protocol (26) on Services of General Interest, which states the wish of the contracting parties to emphasise the importance of services of general interest, SGIs not only became a legal concept,Ulla Neergaard, ‘The Concept of SSGI and the Asymmetries between Free Movement and Competition Law’ in Ulla B Neergaard and others (eds), Social services of general interest in the EU (TMC Asser Press 2012) 207. but also a legal concept of constitutional ranking in the EU.Lenaerts (n 25) 1245. It increased the number of social values and objectives of the EU and considerably enhanced the role of SGIs in the Union.For a summary of the amends made by the Treaty of Lisbon as regards values, objectives and competences, see, for instance, Dagmar Schiek, ‘Social Services of General Interest: The EU Competence Regime and a Constitution of Social Governance.’ in Ulla Neergaard and others (eds), Social services of general interest in the EU (Springer 2012) 77–83.

The term includes both non-economic (NSGIs) and economic (SGEIs) services of general interest,Neergaard, ‘Services of General Economic Interest: The Nature of the Beast’ (n 33) 21. For a graphic presentation of the relationship of these concepts, see ibid 20. See also; Lenaerts (n 25) 1250. Also; Neergaard, ‘The Concept of SSGI and the Asymmetries between Free Movement and Competition Law’ (n 41) 207. both of which are addressed in Protocol (26) on services of general interest. As for NSGIs, Article 2 of Protocol (26) states that the provisions of the Treaty do not affect, in any way, the competence of Member States to provide, commission, and organise non-economic services of general interest. NSGIs are not addressed in EU primary legislation. The term is mentioned, though without definition, in Directive 2006/123 on services in the internal market (the Service Directive),Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 2006 L 376/36. Article 2(2) (a) of which states its non-applicability to non-economic services of general interest.

SGIs that are of an economic character (SGEIs), on the other hand, are mentioned in both Articles 14 TFEU and 106(2) TFEU, in Article 2 of Protocol (26), in Article 36 of the Charter of Fundamental Rights, and the Service Directive.‘…only insofar as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them.’ Article 14 TFEU acknowledges that SGEIs are among the shared values of the EU and that they have a role in promoting social and territorial cohesion in the Union and the Member States. It also states that the EU and the Member States ‘shall take care that such services operate on the basis of principles and conditions, […] which enable them to fulfil their missions.’

Article 106(2) TFEU subjects undertakings, entrusted with the operation of SGEIs, to rules contained in the Treaties – but if this obstructs the performance of the particular tasks involved in such services, the Member States are allowed to derogate from these rules. The EU Charter of Fundamental Rights, in Article 36, recognises the right of access to SGEIs as a fundamental right. It states the EU’s respect for such services provided for in national law and practices, in accordance with the Treaty, in order to promote the social and territorial cohesion of the Union. Recital 17 to the Service Directive reiterates that services that are performed for an economic consideration (SGEIs) fall within the scope of the Directive. Then Article 17 of the Directive enumerates certain SGEIs, which are excluded from its scope. Article 15(4) and Recital 72 furthermore state that SGEIs are not to be affected by the Directive’s evaluation process.

The three concepts, SGIs, NSGIs, and SGEIs are related – SGI being a general concept with two subgroups. An interesting comparison is provided by Neergaard, who compares the conceptual framework to a family relationship, SGIs being the ‘mother’ with two ‘daughters,’ NSGIs and SGEIs.Neergaard, ‘The Concept of SSGI and the Asymmetries between Free Movement and Competition Law’ (n 41) 207–210. All constitute legal concepts which ‘relate to services which in modern European societies are extremely essential.’ibid 210.

A fourth concept has also been evolving in EU law, i.e., social services of general interest (SSGIs). The attention given to SSGIs is of either economic or non-economic character, depending on the activity involved.Commission, ‘A Quality Framework for Services of General Interest in Europe’ (n 24) 4. In the ‘family tree,’ SSGIs may be seen as the grandchildren of SGIs, sometimes the daughters of NSGIs, and sometimes of SGEIs.Neergaard, ‘The Concept of SSGI and the Asymmetries between Free Movement and Competition Law’ (n 41) 210–211. A visualisation of the family tree is presented on page 210. The possibility of more 'grandchildren’ is also suggested. This term is not mentioned in the EU legal texts but is attributed to the European Commission’s ‘soft law’ documents.Ulla Neergaard and others (eds), Social Services of General Interest in the EU (T M C Asser Press 2013) 4. See further Erika Szyszczak, ‘Soft Law and Safe Havens’ in Ulla Neergaard and others (eds), Social services of general interest in the EU (TMC Asser Press 2012). However, the texts of the EU legal provisions are not void of social aspects. Article 9 TFEU, for instance, provides social protection. It states that the Union shall, in defining and implementing its policies and activities, ‘take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training, and protection of human health.’ The Community framework thus requires the Member States to uphold certain standards, with respect to certain services, when they determine the arrangements for applying the objectives and principles they have adopted. Social services are also addressed in Article 2(2) (j) of the Service Directive. This omits services relating to social housing, childcare, and support of families and persons permanently or temporarily in need from its scope of application, when they are provided by the state, by providers mandated by the state, or by charities recognised as such by the state, irrespective of their identity.

3.2.Definitions/Criteria

The legal texts that refer to the term ‘Services of General Interest’ or its subgroups ‘non-economic services of general interest’ and ‘services of general economic interest’ do not provide definitions of these concepts. Neither do they articulate the connections between them nor what distinguishes them from each other and other kinds of services. The titles are, however, descriptive. The ‘general interest’ factor, indicating that the services are provided in the interest of the public, separates SGEIs from ordinary economic services,Economic activities being activities consisting in offering goods and services on a given market, see for instance, Commission, ‘Green Paper on Services of General Interest’ COM (2003) 270 final 14. Commission, ‘Communication from the Commission of 20 December 2011 on the Application of the European Union State Aid Rules to Compensation Granted for the Provision of Services of General Economic Interest’ (n 35) para 11. See also Mustafa T Karayigit, ‘The Notion of Services of General Economic Interest Revisited’ 15 European public law 575, 589. to which the rules governing the internal market generally apply. The ‘economic’ character of activity is also a defining factor and the one that distinguishes SGEIs (including SSGIs) from NSGIs (also including SSGIs). Although the language is indicative in this respect, it is not always clear in which category a particular activity falls. However, because they have different legal effects, distinctions between them are called for.

It has been suggested that a definition of Services of General Interest should specify which services are of such character that they are to be given special protection from EU market principles, why they are considered to have such character, and the degree of protection to be accorded to them.Neergaard, ‘Services of General Economic Interest: The Nature of the Beast’ (n 33) 49. See also Pierre Bauby, ‘Unity and Diversity of SSGIs in the European Union’ in Johan Willem van de Gronden and others (eds), Social services of general interest in the EU (Springer 2012) 50. To cut a long story short, absolute definitions of SGIs and the subgroups are not available. See, for instance, Commission, ‘White Paper on Services of General Interest’ (n 22) 10; Lenaerts (n 25) 1248. As the power to define SGIs lies principally with the Member States, a universal definition is difficult. Different economic, social, geographical, and cultural situations result in different services of general interest and different needs and preferences of users and consumers.Commission, ‘White Paper on Services of General Interest’ (n 22) 10. For a fuller explanation on why there is no definition of SGI, see further Sauter (n 32) 175. Still, some benchmarks have been developed by court rulings in individual cases, as well as clarifications as to the type of services (examples) constituting SGIs.Neergaard, ‘Services of General Economic Interest: The Nature of the Beast’ (n 33) 26. Some have been adopted in EU legislation, while others are found in documents of the European Commission in the form of Commission Decisions and Communications. They have developed over the years, starting with the Communications on Services of General Interest in Europe (1996Commission, ‘Communication from the Commission - Services of General Interest in Europe’ (n 27). and 2000ibid.). Definitions and terminologies are also provided in the Commission’s Green Paper on Services of General Interest (2003);Commission, ‘Green Paper on Services of General Interest’ (n 52). the White Paper on Services of General Interest (2004),Commission, ‘White Paper on Services of General Interest’ (n 22). Communication on Services of General Interest, Including Social Services of General Interest; a New European Commitment (2007);Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions- Accompanying the Communication on ‘A Single Market for 21st Century Europe” Services of General Interest, Including Social Services of General Interest: A New European Commitment’ (n 35). A Quality Framework for Services of General Interest in Europe (2011)Commission, ‘A Quality Framework for Services of General Interest in Europe’ (n 24). and the Guide to the Application of the European Union Rules on State Aid, Public Procurement and the Internal Market to Services of General Economic Interest, and in particular to Social Services of General Interest (2013).Commission, ‘Commission Staff Working Document - Guide to the Application of the European Union Rules on State Aid, Public Procurement and the Internal Market to Services of General Economic Interest, and in Particular to Social Services of General Interest’ (n 37). Guidance may also be derived from the Communication on the Application of the European Union State Aid Rules to Compensation Granted for the Provision of Services of General Economic Interest 2012Commission, ‘Communication from the Commission of 20 December 2011 on the Application of the European Union State Aid Rules to Compensation Granted for the Provision of Services of General Economic Interest’ (n 35). and the Commission Decision on the Application of Article 106(2) of the Treaty on the Functioning of the European Union to State Aid in the Form of Public Service Compensation Granted to Certain Undertakings Entrusted with the Operation of Services of General Economic Interest (2011).Commission, ‘Commission Decision of 20 December 2011 on the Application of Article 106(2) of the Treaty on the Functioning of the European Union of State Aid in the Form of Public Service Compensation Granted to Certain Undertakings Entrusted with the Operation of Services of General Economic Interest.’ OJ 2012 L 7. The last two documents, along with the Communication – European Union Framework for State Aid in the Form of Public Service CompensationCommission, ‘Communication from the Commission - European Union Framework for State Aid in the Form of Public Service Compensation (2011)’ (2012) OJ C 8/03. and the Commission Regulation on the Application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis Aid Granted Undertakings Providing Services of General Economic InterestCommission, ‘Commission Regulation (EU) No. 360/2012 of 25 April on the Application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de Minimis Aid Granted to Undertakings Providing Services of General Economic Interest’ OJ 2012 L 114., form the ‘new SGI package’ – one of the objectives of which was to clarify basic concepts relevant for the application of state aid rules to SGEIs.

The criteria and examples below are drawn from legislation and some of the above documents.The underlying EU case law is not specifically examined. The Commissions’ work already reflects it. The coverage begins with an identification of the available explanations of NSGIs and examples of activities constituting such services. This is followed by explanations and examples of SGEIs and SSGIs, and how the SSGIs that constitute SGEIs may be distinguished from those that constitute NSGIs.

Services characterized by their non-economic nature,However the non-economic nature of an activity may be explained differently depending on the context in which they occur, see for instance; Lenaerts (n 25) 1251, who points out differences between the provisions on competition and freedom to provide services in this respect. NSGIs, have been referred to as ‘non-market services,’ which cannot be entrusted to private entities on a commercial basis. They also have been described as ‘welfare state activities,’ providing a certain level of basic services (healthcare, subsistence minimum, or education) to every citizen.Neergaard, ‘Services of General Economic Interest: The Nature of the Beast’ (n 33) 28. In addition, they have been called services exclusively performed ‘under the principle of solidarity’ and ‘subject to public control,’ or ‘linked to the exercise of State prerogatives and to the fulfilment of State responsibility towards the population.’Lenaerts (n 25) 1250–1251, where these criteria are used in the context of competition law. It is pointed out, that the principle of solidarity does not exclude the application of Treaty provision on free movement and EU citizenship. On this point see also; Neergaard, ‘The Concept of SSGI and the Asymmetries between Free Movement and Competition Law’ (n 41) 230. Services that are intrinsically prerogatives of the state include those involved in ensuring internal and external security, the administration of justice, the conduct of foreign relations, and other exercises of official authority.Commission, ‘Communication from the Commission - Services of General Interest in Europe’ (n 27) para 28. An entity is to be deemed as exercising public authority when the entity is performing a task that forms ‘part of the essential functions of the State or is connected with those functions by its nature, its aim, and the rules to which it is subject.’Commission, ‘Communication from the Commission of 20 December 2011 on the Application of the European Union State Aid Rules to Compensation Granted for the Provision of Services of General Economic Interest’ (n 35) paras 14, 25. In a list of such examples, the Commission included activities related to the army or the police, air navigation safety and control, maritime traffic control and safety, anti-pollution surveillance, and the organisation and financing of prison services, and the enforcement of prison sentences.ibid 16.

Services that are intrinsically prerogatives of the state also include services that are part of established systems and their maintenance, to fulfil the state’s duty towards its population in the social, cultural, and educational fields.Commission, ‘Communication from the Commission - Services of General Interest in Europe’ (n 27) para 29. Solidarity-based social security schemes, such as compulsory sickness insurance schemes, constitute NSGIs.ibid. A social security scheme is considered solidarity-based when affiliation with the scheme is compulsory, the scheme pursues an exclusively social purpose and is non-profit, if the benefits are independent of the contributions made and are not necessarily proportionate to the earnings of the person insured and, finally, if the scheme is supervised by the state.See further Commission, ‘Communication from the Commission of 20 December 2011 on the Application of the European Union State Aid Rules to Compensation Granted for the Provision of Services of General Economic Interest’ (n 35) para 18. Para 19 provides a list of criteria for economic social security schemes. Regarding education, public education organised within the national educational system, funded and supervised by the state, may be considered as a non-economic activity,ibid 26. irrespective of the payment of tuition and enrolment fees.See further ibid 27. See also Adinda Sinnaeve, ‘What’s New in SGEI in 2012? - An Overview of the Commissions`s SGEI Package’ 2 European State Aid Law Quarterly 349.

The above summary gives some insight into the criteria used and what kind of activities have been considered as constituting NSGIs. It shows that the exercise of state prerogative and of other functions of official authority and the principle of solidarity are significant features of NSGIs and these criteria may be viewed as guidelines against which other services may be measured.It must be noted, however, that the principle of solidarity does not automatically place an activity within the category of NSGI and outside the scope of EU rules. See, for instance, Commission, ‘Commission Staff Working Document - Guide to the Application of the European Union Rules on State Aid, Public Procurement and the Internal Market to Services of General Economic Interest, and in Particular to Social Services of General Interest’ (n 37) 22; Commission, ‘A Quality Framework for Services of General Interest in Europe’ (n 24) 4. See also, for instance, Lenaerts (n 25) 1251; Bauby (n 53) 28; Erika Szyszczak, ‘Modernising Healthcare: Pilgrimage for the Holy Grail?’ in Markus Krajewski, Johan van de Gronden and Ulla Neergaard (eds), The Changing Legal Framework for Services of General Interest in Europe (TMC Asser Press 2009) 212.

SGEIs, like NSGIs, involve the performance of important tasks in the public interest.Commission, ‘Communication from the Commission of 20 December 2011 on the Application of the European Union State Aid Rules to Compensation Granted for the Provision of Services of General Economic Interest’ (n 35). See also the Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (Service Directive). Its Recital 70 states that services may be considered to be SGEIs only if they are provided in the application of a special task in the public interest entrusted to the provider by the Member State concerned. SGEIs may be marketable to some degree but if the market lacks sufficient incentives or does not satisfactorily provide such services, public intervention may be considered necessary.Commission, ‘Communication from the Commission - Services of General Interest in Europe’ (n 27), recital 14. See also Karayigit (n 52) 576. On market failure, see also; Commission, ‘White Paper on Services of General Interest’ (n 22) 22. See also Commission, ‘A Quality Framework for Services of General Interest in Europe’ (n 24) 3; Commission, ‘Communication from the Commission - European Union Framework for State Aid in the Form of Public Service Compensation (2011)’ (n 66) para 47. Also Commission, ‘The Application of Article 106(2) of the Treaty on the Functioning of the European Union to State Aid in the Form of Public Service Compensation Granted to Certain Undertakings Entrusted with the Operation of Services of General Economic Interest’ (2012) OJ L 7. Thus, because of their economic nature, SGEIs are not entirely non-marketable. Still, they are different from other economic or marketable services.

Despite being based on a ‘broad agreement in Community practice,’Commission, ‘White Paper on Services of General Interest’ (n 22), annex I, 22. there is no authoritative, clear, and precise definition or uniform criteria at the EU level to be fulfilled by the Member States to comply with the EU mission of providing services of general economic interest.Karayigit (n 52) 576–577, 583. The Commission has even questioned the desirability and possibility of developing a single comprehensive EU definition of the content of such services.Commission, ‘Green Paper on Services of General Interest’ (n 52) para 49. See also Karayigit (n 52) 576. Still, Article 1 of Protocol (26) accounts for some elements included in the notion of shared values in respect of SGEIs (a high level of quality, safety and affordability, equal treatment, and the promotion of universal accessUniversal service obligations (USO) have been explained as the requirement to guarantee for access of everyone, whatever the economic, social og geographical situation, to a service of a specified quality at an affordable price, see Commission, ‘Green Paper on Services of General Interest.’ (n 52) 4. See also Commission, ‘A Quality Framework for Services of General Interest in Europe’ (n 24) 4. For further discussion on USO see, for instance, Sauter (n 32) 176; Karayigit (n 52) 584. and user rights), which may be taken into consideration in determining the general interest nature of an activity. See also, Commission, ‘A Quality Framework for Services of General Interest in Europe’ (n 24) 21.

The Commission has given examples of the kind of services that constitute SGEIs.It is reiterated that this summary relies on Communications of the European Commission (which relies on case law) and academic writings. These include ‘in particular certain services provided by the big network industries such as transport, postal services, energy, and communications.’Commission, ‘White Paper on Services of General Interest’ (n 22) 22. Other services, such as water distribution, water supply, and waste-water services, treatment of waste, public radio and television services have also been considered as constituting SGEIs;Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Accompanying the Communication on “A Single Market for 21st Century Europe” Services of General Interest, Including Social Services of General Interest: A New European Commitment’ (n 35) 4. Some of these services, are also named in Article 17 of the Service Directive as examples of SGEIs that the freedom to provide services prescribed in Article 16 does not apply to. as have certain financial services, such as a universal banking service,Commission, ‘Commission Staff Working Document - Guide to the Application of the European Union Rules on State Aid, Public Procurement and the Internal Market to Services of General Economic Interest, and in Particular to Social Services of General Interest’ (n 37) 25. public emergency services, and mooring services for vessels in ports.Besides Commission Communications, see, for instance, Lenaerts (n 25) 1257; Neergaard, ‘Services of General Economic Interest: The Nature of the Beast’ (n 33) 22; Karayigit (n 52) 576, where the various services that courts have acknowledged as constituting SGEI are identified. The lists are non-exhaustive. The term also extends to ‘any other economic activity subject to public service obligations.’Commission, ‘White Paper on Services of General Interest’ (n 22) 22. Based on the principle of solidarity, such activities include services that are ‘person-centred and ensure that citizens can effectively enjoy their fundamental rights and a high level of social protection.’ibid 16. Therefore, although they may be provided for compensation, such services are not fully subject to the EU market rules. Regarding state aid – for instance – situations, where undertakings are granted compensation for the provision of such services, do not constitute state aid in the sense of the Treaty and are, therefore, deemed compatible with the internal market and exempt from the requirement of notification laid down in Article 108(3) of the Treaty.Commission, ‘The Application of Article 106(2) of the Treaty on the Functioning of the European Union to State Aid in the Form of Public Service Compensation Granted to Certain Undertakings Entrusted with the Operation of Services of General Economic Interest’ (n 82).

The concept referred to as social services of general interest (SSGIs) recognises the general interests involved in social services and reflects the view that focusing on SGIs in terms of economic services and competition justification is no longer plausible and sufficient.Maurizio Maresca, ‘The Access to the Service of General Interest (SGIs), Fundamental Right of European Law and the Growing Role of Users` Rights’ (International Association of Consumer Law 2005) ch I.1. Although the concept has been referred to as a ‘hot topic’ in the EU, it has become more and more visible and increasingly played a key role in the EU. Neergaard and others (n 49) 4, 6; Neergaard, ‘The Concept of SSGI and the Asymmetries between Free Movement and Competition Law’ (n 41) 210; This leads in turn to some considerations concerning competences and policies that do not necessarily coincide. Accordingly, market values and the values underlying services of general interest may be seen as competing models, the effectiveness of the relevant Treaty provisions depending on the general interests pursued by SGIs. However, this has not been regarded as meaning that one excludes the other. Rather than choosing between them, the co-ordination of EU objectives is about striking a fair balance between them. See, for instance, Lenaerts (n 25) 1249. It has also been claimed to bring ‘added value’ to the concepts of NSGI and SGEI. Lenaerts (n 25) 1249.

As already mentioned, some SSCIs are the ‘daughters’ of NSGIs and some of SGEIs. The former consists of social security schemes covering the main risks in life, which include services such as those linked to health, aging, occupational accidents, unemployment, retirement, and disability.Commission, ‘Communication from the Commission - Implementing the Community Lisbon Programme - Social Services of General Interest in the European Union’ (n 26) 7. The second group consists of a range of other essential services that play a preventive and social-cohesion role and consist of customised assistance to individuals to facilitate social inclusion and safeguard fundamental rights.ibid 1.1. Examples are services that assist those faced by personal challenges or crises (such as debt, unemployment, drug addiction, or family breakdown) and services that are intended to enable persons to reintegrate completely into society (e.g., rehabilitation and language training for immigrants) and, in particular, to return to the labour market (occupational training and reintegration). These services complement and support the role of families in caring for the youngest and oldest members of society in particular. The second group also includes activities to integrate people with long-term health or disability problems and services that provide social housing for disadvantaged citizens or socially less advantaged groups.ibid. See also; Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Accompanying the Communication on “A Single Market for 21st Century Europe” Services of General Interest, Including Social Services of General Interest: A New European Commitment’ (n 35) 5–6; and Commission, ‘Commission Staff Working Document - Guide to the Application of the European Union Rules on State Aid, Public Procurement and the Internal Market to Services of General Economic Interest, and in Particular to Social Services of General Interest’ (n 37) 22.

The above criteria and examples of SSGIs are flexible and may be broad enough to cover other types of social services.Sinnaeve (n 3) 355. Member States may also organise their social welfare systems, and construct and apply the concept of SSGIs, differently.Bauby (n 53) 42. Providing a complete list of SSGIs is, therefore, not an easy task.Commission, ‘White Paper on Services of General Interest’ (n 22) 22. Uncertainties still exist concerning demarcation lines between those SSGIs that are non-economic, on the one hand, and those that are economic on the other, and even between EU legal regimes.Neergaard, ‘The Concept of SSGI and the Asymmetries Between Free Movement and Competition Law’ (n 41) 239–204, see also 207, referring to the two central regimes; free movement and competition law. See also Lenaerts (n 25) 1251 with respect to the principle of solidarity. Still, the above examples give clues as to how they may be distinguished; although, an evaluation on a case-by-case basis may be needed to specify whether the particular missions they are charged with, to determine to which group a particular service belongs.Bauby (n 53) 50.

4.Using the defining Factors and Examples of SGIs as a Tool for the Identification of Public Administration in the Substantive Sense.

Activities constituting SGIs in the EU context and public administration, in the substantive sense in the national public administration context, share important characteristics which excuse them from rules that would otherwise apply in a legal situation. Although absolute definitions of SGIs or complete lists of activities constituting SGEIs, NSGIs, and SSGIs are not available/possible, some benchmarks have been identified. The question is if these benchmarks can help define ‘publicness’ – which is key to the applicability of general principles of Icelandic public administrative law to the relations between a provider and user of services provided under service contracts.

Before answering this question, it is worth noting that definitions of SGIs in EU law elicit the characteristics that distinguish SGIs from other activities to identify the activities that fall outside the scope of, or justify exemptions from, the general rules governing the EU market. These rules exist in a particular framework, in which the market objectives are clear. National public administrative law, on the other hand, includes rules that govern activities of national public authorities in their relations with its citizens, although certain international or European aspects may also be involved. This must be kept in mind when comparing or considering the applicability of the definitions of EU to Icelandic public administrative law.

As was explained in Section 2, economic services provided by private parties may be placed at one end of a continuum and public services provided by public authorities at the other. In between lie public services provided by private parties (in the context of national law) and SGIs (in the context of EU law). SGIs that concern essential functions of the State, constitute NSGIs,Anti-pollution surveillance, for instance, that is typically performed by a public authority, is not of an economic nature, although a private party may be entrusted with carrying it out. See further Commission, ‘Communication from the Commission - Services of General Interest in Europe’ (n 27) para 28. and leave those that are marketable among the SGEIs. The former lie close to the exercise of public functions, and the latter beside ordinary market services on the public-private scale. Both are provided with protection. The former, however, which have even been referred to as ‘safe havens’ in the SGI discourse,Szyszczak (n 51). enjoy more protection than the latter.Neergaard, ‘Services of General Economic Interest: The Nature of the Beast’ (n 33) 49. SGEIs that do not qualify as NSGIs enjoy protection, but not to the same degree.

Addressing the question at hand, it is suggested that activities to which the defining factors for NSGIsAlthough certain uncertainties remain. apply, provide useful benchmarks for the identification of ‘publicness’. This means that services that are operated exclusively under the principle of solidarity, are subject to public control or linked to the exercise of state prerogatives and the fulfilment of state responsibility towards the population, constitute public functions. Based on the available examples of NSGIs, activities, such as: policing, air navigation safety and control, maritime traffic control and safety, anti-pollution surveillance, and the execution of prison sentences, constitute public functions; as do compulsory social security schemes and social security. Furthermore, health care systems entirely based on the principle of solidarity, i.e., those that are directly funded from social security contributions and other state resources and provide their services free of charge to affiliated persons based on universal coverage, are considered to constitute public functions.Commission, ‘Communication from the Commission of 20 December 2011 on the Application of the European Union State Aid Rules to Compensation Granted for the Provision of Services of General Economic Interest’ (n 35) para 22. The examples of NSGIs also include activities such as education organised within the national educational system that is funded and supervised by the state. Importantly, the payment of tuition and enrolment fees does not affect this. It is noted that some of these activities are not typically contracted out and are therefore not in the ‘grey zone’ in which the discussion in this paper takes place. However, some are, such as education at all levels. When delivered under a contract, the status of the service in question as an NSGI indicates a public function or ‘publicness’ in the sense of Icelandic administrative law.

SGEIs concern important tasks in the public interest but such services are also marketable to some degree. According to the definition of SGEIs, they cover, ‘in particular’, services such as transport, postal services, energy, and communications, and various services concerning, for instance, the distribution and supply of water, treatment of waste, and public broadcasting. However, they also cover person-centred services that are meant to ensure that citizens can effectively enjoy their fundamental rights and a high level of social protection.

As a private body receives payment for public services provided under a service contract, there is an economic aspect to the services in question. If the services can be identified with SGIs, the economic aspect suggests that they should be classified as SGEIs. A service constituting an SGEI means that the rules of the EU´s internal market are not applied in full. Transferred to national law, this indicates that private law principles should, at least partly, give way to public law principles. Accordingly, individual protection provided by public administrative law may remain, notwithstanding the involvement of a private party. Here, a second question arises, i.e., whether all types of SGEIs should be regarded alike when used as guidelines for the identification of ‘publicness’, which triggers the applicability of general principles of Icelandic administrative law. The defining elements of SGEIs – efficiency and high-quality services of general interest, safety and affordability, equal treatment, and the promotion of universal access – do not bring one closer to an answer to the above question; they apply to both types of SGEIs. Both types are also essential for enhancing citizens’ well-being and helping individuals to make effective use of their fundamental rights.Paul Craig, EU Administrative Law (Oxford University Press 2006) 4. See also Commission, ‘Green Paper on Services of General Interest’ (n 52). Here, the concept of SSGIs may be of help.

As explained in Section 3, SSGIs can be of either economic or non-economic character, depending on the activity involved. We have learned that SSGIs have very specific objectives, that the concept is closely connected with that of social services,Neergaard, ‘The Concept of SSGI and the Asymmetries between Free Movement and Competition Law’ (n 41). such services apply at the personal level,‘Personalisation is of the heart of service provision.’ Bauby (n 53) 50. and enjoy greater protection than other SGIs. In other words, SGEI that constitute SSGIs have features that distinguish them from other SGEIs.Stéphane Rodrigues, ‘The Application to Services of General Economic Interest, Notably to Social Services of General Interest, of the EU Rules Related to State Aids, Public Procurement and the Internal Market. One Year after to Commissions’s Guide - SEC (2010) 1545 Final’ (2011) 4 European Journal of Social Law 254, 249. It is submitted that these features may form a basis for distinguishing between public services in the context of public administrative law.

According to the above, there is value in the recognition of an SGEI as an SSGI. Applied to the question at hand, the categorisation of services of economic interest as SSGIs can help single out those public functions that constitute public functions to which principles of Icelandic administrative law from those that do not. This means that, for example, services that assist those faced by personal challenges or crisis, reintegration into society and return to the labour market, as well as services concerning health or disability problems, age, and social housing,Using the examples drawn from documents of the European commission mentioned in Section 3 above. are subject to general principles of Icelandic public administrative law when provided by private bodies under service contracts. On the other hand, the relations between the user and private provider of services, such as those that conform to the standards applicable to the services provided by industries,Bauby (n 53) 50. for example, telephone and postal services, electricity and water supply, transport, and treatment of waste, should not be subject to such rules. On this basis, the second question above is answered in the affirmative. The defining features and examples of SGEIs that constitute SSGIs provide useful guidance as regards the definition of ‘publicness’.

5.Conclusions

The benefit of consulting EU law on the definition of ‘publicness’, in the context of the reach of Icelandic administrative law in service contract situations, is attributable to the fact that the various types of EU services of general interest have been categorised. The defining factors of the different types of SGIs and the available case law examples of each type provide interesting information on the characteristics of services that have dissimilar effects as regards the otherwise applicable EU rules – which is interesting in the light of the fact that public functions, when identified, also affect the applicability of rules that otherwise would apply.

It is concluded that the defining features and examples of NSGIs provide useful guidance as regards the definition of ‘publicness’, which is the keyword as regards the scope of general principles of Icelandic administrative law in service contract situations. The outcome supports and clarifies certain points included in the ‘publicness’ test, deduced from judgments of the Icelandic Supreme Court, opinions of the parliamentary Ombudsman, and theories on private liability for human rights violations. It also indicates that public services that are not SSGIs should not (unless prescribed by law) be regarded as public administration to which principles of administrative law apply when provided under service contract. Thus, it also provides additional guidelines as to how public functions, to which principles of Icelandic public administration do not apply, may be singled out.