Transcript Folie 1 - UniFlensburg

Freedom to Provide and Receive
Services
1. What is special about services?
• The significance of the service sector for the member
states of the European Union has increased substantially
over the last 50 years.
• Today EU member states’ service sector share of GDP is
estimated at approx. 65 per cent, and the share of those
employed in the service sector (of all employees) amounts to
almost 70 per cent.
• most service sectors export less than 5 per cent of their
production to other Member States, as the obstacles to the
free movement of services resulting from specific regulatory
norms of the member states were too large.
2. The Community‘s Definition of Services
• Art. 50 EC states that the basic freedom deals with services
‘where they are normally provided for remuneration, insofar
as they are not governed by the provisions relating to the
freedom of movement for goods, capital and persons.
• The freedom to provide and receive services therefore acts
as a ‘catch-all element’ which is only invoked when none of
the other basic freedoms can be applied.
• Transport (Art. 51 (1) EC) is explicitly excluded, which is
regulated under its own heading under the common transport
policy.
• A further restriction to the freedom to provide and receive
services is the wish to liberalise banking and insurance
services in step with the free movement of capital (Art. 51
(2) EG).
Since the freedom to provide and receive services acts as a
catch-all element, its scope of application is, for the main
part, defined by how it distinguishes itself from the other
basic freedoms:
• The closest link obviously exists between the freedom to
provide and receive services and the freedom of
establishment (temporary vs. permanent basis).
•
As services are not only offered by individuals, but in
many cases also by firms with dependent employees, a
demarcation problem exists with regards to the free
movement of workers. Are the employees to be factually
regarded as employees of the provider of the service or as
the employee of the client (the recipient of the service)?
• Lastly, individual cases of demarcation problems remain
with respect to services in connection with the delivery of
goods (e.g. the assembly, starting and maintenance of a
tool machine) or with respect to services provided in close
connection with the movement of capital.
Three cases of border-crossing services can be distinguished:
1.
2.
In the case of the freedom to provide services the provider
(e.g. a lawyer or a management consultant) who has
established himself in another member state travels to a
client resident in another member state, in order to provide
the service there.
In the case of the freedom to receive services – recognised
since the Luisi and Carbone decision in 1984 – the consumer
travels to another member state to receive the service (e.g.
services offered by hotels, hospitals or a service garage for
tourists).
3.
In the case of the freedom of correspondence services –
recognised since the Sacchi ruling in 1974 – it is the service
itself (not the provider or the recipient of the service) that
crosses the border to another member state. Originally, this
affected the cross-border broadcasting of radio and television
programmes in particular. However, it is increasingly gaining
importance due to technological advancements in information
and communications technology (internet, call centres etc.).
3. Permissible and non-permissible restrictions on the
free movement of services
• Prohibition of discrimination and obligation of equal
treatment of nationals of other member states (Art. 50(3) EC).
• In addition to this, Art. 49 (1) EC contains a comprehensive
prohibition of restrictions which also catches all
‘miscellaneous restrictions’ that impede the free movement of
services although they do not discriminate, either distinctly or
indistinctly, on the grounds of nationality.
• An explicit exception to the free movement of services are all
activities which are carried out in a member state, either on a
permanent or temporary basis, in connection with the exercise
of official authority (Art. 55 EC in conjunction with Art. 45 EC).
•
The treaty allows for a distinct discrimination on grounds of
nationality in relation to all other services as well, as long as it
can be justified for reasons of public order, public security
or public health (Art. 55 EC in conjunction with Art. 46 EC.
‘Miscellaneous restrictions’ can, in accordance with the
ECJ’s case law, be justified through imperative requirements
of general interest, as long as they are non-discriminatory and
as long as the principle of proportionality is not violated. So far
the ECJ has recognised the following ‘imperative requirements
of general interest’ with respect to the freedom to provide and
receive services: fairness of commercial transactions and
consumer protection, protection of workers, coherence of fiscal
systems, reputation of capital markets, matters of cultural policy,
matters of social policy and the fight against fraud, financial
balance of the social security system, efficiency of the
administration of justice.
A series of directives support the liberalisation of the
movement of services:
• As the chapter on the freedom of establishment discussed in
detail, since the 1980s there has been a departure from the
sector-specific harmonisation of details and an advance
towards a sector-spanning mutual recognition of vocational
qualifications and diplomas as well as certificates of
professional competence.
A series of directives support the liberalisation of the
movement of services (ctd.):
• The 1989 Broadcasting Directive (89/552/EEC) guarantees
the freedom to provide television services subject to the control
of the transmitting state (the so-called ‘transmitting state’
principle), yet also contains rules that favour ‘European
creations’ (particularly through minimum quotas) which have
been strongly criticised, as they represent a massive invasion
into television broadcasters’ freedom to develop the programme
schedule. The Broadcasting Directive was updated in 1997
(Amending Directive 97/36/EC), incorporating as a new aspect
the broadcasting of events watched by huge audiences (e.g. the
Olympic Games), permitting new forms of advertising, such as
tele-shopping, as well as explicitly including the ‘transmitting
state’ principle.
• Lastly, the Posting of Workers Directive (96/71/EC) from 1996
is also of importance. It allows member states to apply certain
core elements from worker protection regulations to workers
who have temporarily been sent abroad by their company
seated in another member state to provide services, and who
therefore are in principle subject to the labour law provisions of
In the following we will systematise some fundamental ECJ
rulings and examine their implications with respect to the free
movement of services. The overview differentiates between six
case scenarios which arise from combining the three ways in
which services cross borders with the two possible sources of
restrictions. From these six theoretically possible scenarios
only five are relevant in practice. At least we are not aware of a
case where the home country of the service provider imposes
restrictions of any kind upon the latter’s temporary activity in
another member state.
Fundamental ECJ rulings on the free movement of services
Type of border
crossing
Source of
restriction
Country of
residence of
service
receiver
Country of
residence of
service
provider
Freedom to
provide
services
Van Binsbergen
(1974)
Tourist guides
(1991)
Corsten (2000)
Rush Portuguesa
(1990)
Freedom to
Freedom of
receive services correspondence
services
Luisi and Carbone
(1984)
Kohll (1998)
Geraets-Smits and
Peerbooms (2001)
Müller-Fauré and
van Riet (2003)
Bond van
Adverteerders
(1988)
ARD (1999)
Säger (1991)
Schindler (1994)
Ciola (1999)
Alpine Investments
(1995)