Abstract
Chapter 13 presents, in light of performed analysis, arguments demonstrating that the Services Directive generally represents a broadly conceived governance device considering its overall function and objective in the context of the development of the realisation of the internal market for services. It also presented arguments showing that the effects of the Services Directive on the national regulatory autonomy are not only related to the fact that Articles 14 and 16 as combined with Article 4(7) of the Directive alters the understanding of Articles 49 and 56 TFEU, but also, firstly, that certain national regulatory structures are modified, secondly, that regulatory power is indirectly handed over from the national and EU legislators to the national administrations and the Commission and, finally, that the national room for manoeuvrability by the Member States is reduced in this respect.
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Notes
- 1.
See recital 20 of Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance), [2004] OJ L 158/77, providing that, “[i]n accordance with the prohibition of discrimination on grounds of nationality, all Union citizens and their family members residing in a Member State on the basis of this Directive should enjoy, in that Member State, equal treatment with nationals in areas covered by the Treaty, subject to such specific provisions as are expressly provided for in the Treaty and secondary law”.
- 2.
See the discussion in Chang et al. 2010. The economic benefits were not yet undeveloped whereby the potential economic benefits were not neglected whereas the political discussions, especially in certain Member States, such as Germany, Denmark and Sweden, were focused on the dreaded effects on social policy issues and minimum wages. See also, Crespy and Gajewska 2010.
- 3.
Commission White Paper on Governance COM(2001) 428 final.
- 4.
For a similar reasoning, see Nicolaïdis and Schmidt 2007, p. 732. However, see for a different opinion, Klamert 2010, p. 130.
- 5.
See, e.g., the of Opinions of Advocate General Mazák delivered on 18 May 2010 in Case C-119/09, Société fiduciaire nationale d’expertise comptable v. Ministre du Budget, des Comptes publics et de la Fonction publique [2011] ECR 0000 and of Advocate General Cruz Villalón in Case C-57/12, Fédération des maisons de repos privées de Belgique (Femarbel) ASBL v. Commission communautaire commune de Bruxelles-Capitale [2013] ECR 0000 in contrast with the Court’s judgment in the same cases as well as Opinion of Advocate General Cruz Villalón in Joined Cases C-357/10 to C-359/10, Duomo Gpa Srl (C-357/10), Gestione Servizi Pubblici Srl (C-358/10) and Irtel Srl (C-359/10) v. Comune di Baranzate (C-357/10 and C-358/10) and Comune di Venegono Inferiore (C-359/10) [2012] p. 0000 this is in contrast with the Court’s conclusion in that case. In both situations, the Court had the possibility to decide whether the reasons set forth in Article 16 of the Services Directive were exhaustive or not, but evaded such principal conclusion. The same situation may be seen in Case C-384/93, Alpine Investments BV v. Minister van Financiën [1995] ECR I-1141, where the Court was faced with a possibility to conclude whether the Keck-line of case law was equally applicable to the free movement of services. However, from the Court formulated no definite answer to this question.
- 6.
Especially from Germany, Denmark and Sweden, Chang et al. 2010.
- 7.
Hatzopoulos 2012, p. 346.
- 8.
See further, http://ec.europa.eu/internal_market/services/services-dir/mutual_evaluation_en.htm, where are presented the actions taken by the Union founded on the structure of the Services Directive as set out by the Council.
- 9.
Commission Communication on the single market act, twelve levers to boost growth and strengthen confidence “Working together to create new growth” COM(2011) 206 final, Section 3.
- 10.
Barnard 2008, at p. 367.
- 11.
Case C-57/12, Fédération des maisons de repos privées de Belgique (Femarbel) ASBL v. Commission communautaire commune de Bruxelles-Capitale [2013] ECR 00000.
- 12.
Case C-119/09, Société fiduciaire nationale d’expertise comptable v. Ministre du Budget, des Comptes publics et de la Fonction publique [2011] ECR 0000.
- 13.
The National Board of Trade, Kommunernas regelöversyn utifrån tjänstedirektivet (The screening process by Municipalities in respect of the Services Directive).
- 14.
Stelkens et al. 2012, pp. 16–17.
- 15.
Commission Communication on better governances for the single market COM(2012) 259 final, p. 8.
- 16.
In Romania, it was considered that “[t]he restricted range of justifications shall be treated as only ‘guiding’, as in another part of the same piece of legislation there is a definition of the concept, which encompasses a wide range of justifications”. Dragos and Neamtu 2012, p. 52.
- 17.
Stelkens et al. 2012, pp. 37–39.
- 18.
Commission Communication on the implementation of the Services Directive—A partnership for new growth in Services 2012–2015 COM(2012) 261 final, p. 5.
- 19.
For such discussions related to the Swedish administrative system, see Reichel 2010, Section 2.2.
- 20.
Stelkens et al. 2012, p. 10.
- 21.
Commission Communication on better governances for the single market COM(2012) 259 final, p. 5.
- 22.
Ibid, p. 6.
- 23.
This is the case no matter if imposed “when exercising their legal autonomy” or not.
- 24.
For a similar reasoning, see Van de Gronden and de Waele 2010, p. 429.
- 25.
Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein [1979] ECR 649.
- 26.
See, e.g., Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) [2005] OJ L 149/22; Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts [1993] OJ L 95/29; Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours [1990] OJ L 158/59.
- 27.
For such reasoning, see Otken Eriksson and Öberg 2004, albeit in respect of the initial proposal.
- 28.
For such discussion, see Hatzopoulos 2012, Chapter 9.
- 29.
Proposal for a Directive of the European Parliament and of the Council on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services COM(2012) 131 final; Proposal for a Council Regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services COM(2012) 130 final and; Commission Staff Working Document, impact assessment, Revision of the legislative framework on the posting of workers in the context of provision of services SWD(2012) 63 final.
- 30.
Chang et al. 2010, p. 101.
- 31.
Davies 2007, p. 240.
- 32.
Hatzopoulos 2012, pp. 344–352.
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Wiberg, M. (2014). The Services Directive Constituting Simply Policy. In: The EU Services Directive: Law or Simply Policy?. Legal Issues of Services of General Interest. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-023-7_13
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