in competition with one or more service suppliers

What does "in competition with one or more service suppliers" mean in GATS and other FTAS that borrow the GATS definition? (of "services supplied in the exercise of governmental authority" i.e. public services )

"For the purposes of this Agreement...

(b) 'services' includes any service in any sector except services supplied in the exercise of governmental authority;


(c) 'a service supplied in the exercise of governmental authority' means any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers."

(Source of the following text- http://www.iatp.org/files/GATS_and_Public_Service_Systems.htm )

See especially the  governmental authority exclusion page.

If this page seems repetitive its because its so important to understand this.


Firstly, in order for a service to be excluded, BOTH criteria must apply.

That is, in order for the exclusion to apply, a service must be supplied on a non­ commercial basis and its delivery must not be in competition with another service supplier. (for example, a government service cant compete with a commercial one, nor can the government offer any llike services.

Examples:

"universal basic income"

No "Medicare For All" (Unless it is "Single Payer" which means it charges no money at all (since it is the only one it has to be free) So also nor do we allow health insurance to be sold, it cant be and the GATS must be left first, by means of the Article XXI procedure)

"NHS"  No, because the UK also sells health insurance.. So NHS is more like a public option, one that may have lost its pre-1995 grandfathering-in status because of Brexit.

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Thus, the exclusion does not apply to services that are supplied on a non­commercial basis but which are supplied in competition with another service provider.

Similarly, the exclusion does not apply to services that are supplied on a commercial basis even where these services are supplied in the absence of competition with any other
service supplier.

Hence, only a small sub­set of services ­­ those that are provided by completely non­commercial,
absolute monopolies ­­ appear to be protected by this exclusion.

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There are other rules, too, lots of them. What is a Service Supplied in the.png

Image Caption: Example of a paywalled paper on this issue. One of a great many.

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Secondly, the exclusion is narrow by virtue of the ordinary definition of its terms.

The agreement does not define the phrases "on a commercial basis" and "in competition with one or more service suppliers".

However, the ordinary definitions of these terms are broad, making the set of services that they describe very large, and the set of services that falls outside them ­­ and hence outside the scope of the agreement ­­ quite small.


"Commercial" is defined variously as: "Engaged in commerce; trading" 5 ; "Of or pertaining to
commerce or trade" 6 ; "Of, engaged in, or concerned with, commerce" 7 ; or "concerned with
commerce" 8 (emphases added).


The definition of "commerce" includes: "financial transactions, esp. the buying and selling of
merchandise, on a large scale" 9 , "the exchange of goods" 10 or "buying and selling together; trading;
exchange of merchandise" 11 .


The definition of "trade" includes: "the business of distribution, selling and exchange" 12 , "buying and
selling ... buying and selling conducted between nations etc.; the exchange of goods between
peoples" 13 and "the buying and selling or exchange of commodities for profit; commerce, traffic,
trading" 14 .


"Competition" is defined as: "Rivalry in the market, striving for custom between those who have the
same commodities to dispose of" 15 ; "the act or an instance of competing or contending with others (for
supremacy, a position, a prize, etc.)." 16


"Compete" is defined as: "to try to get what others also seek and which all cannot have, to compete
for export markets". 17



Most so ­called public services ­­ which are normally supplied through a complex mixture of public and private
suppliers, or which frequently include certain commercial aspects ­­ appear to fall, at least in part, under these broad
definitions. They would thus fall outside the protective exclusion. 18


Thirdly, wherever there are uncertainties about its scope, the exclusion will almost certainly be interpreted narrowly. 19


Moreover, in the absence of a clear definition within the agreement itself, the scope of the exclusion in any particular case will be determined not by member governments, 20 but by dispute panels that operate according to international
law 21

in processes that are closed to public scrutiny and debate. These panels can be expected to define these
phrases so that the resulting "governmental authority" exclusion has a very narrow practical application. 22

Important GATS obligations now apply to services that fall outside the narrow "governmental authority"
exclusion


The GATS obligations of general application apparently already apply to most public service systems and to the
government regulations pertaining to these systems. These obligations include the most­ favoured­ nation treatment obligation (Article II), 23

obligations concerning transparency (Article III), 24 and certain domestic regulation provisions
(Article VI). 25 In addition, in sectors where members have made specific commitments, more restrictive GATS
obligations, including national treatment (Article XVII) 26 and market access (Article XVI), 27 also apply to services and to government regulatory measures within members' public service systems. Negotiations that are now underway to expand the agreement are likely to subject public service systems and government regulations to even greater GATS exposure.

See the web page on governmental authority exclusion for much much more.