Abstract
This chapter discusses the specific characteristics of the free movement of services in contrast with the other rights of free movement, since services are generally denoted by transborder movement of both a service as well as a person providing or receiving the service. This is furthermore illustrated in light of issues related to regulatory competition between the Member States and whether services are generally regulated in accordance with home or host-state control. Thereafter, the process leading up to the Services Directive is discussed in general. In this respect, it is described the initial proposal of the Services Directive, introducing the country-of-origin principle, as well as the finally adopted version in which that principle was abandoned.
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Notes
- 1.
See Article 57 TFEU. See also Case C-20/03, Criminal proceedings against Marcel Burmanjer, René Alexander Van Der Linden and Anthony De Jong [2005] ECR I-4133, at paras 33–35.
- 2.
Hatzopoulos 2012, pp. 4–5.
- 3.
Ibid, pp. 8–9.
- 4.
Hatzopoulos 2012, p. 17, see also Hindley and Smith 1984.
- 5.
The fundamental freedoms, subject to a common judicial review, provides for a powerful liberalising effect beyond that which had previously been observed in their international cooperations concerning customs unions and common markets. Barnard even concludes that it has stronger liberalising effects than within the federal USA, see Barnard 2009.
- 6.
See Scharpf 1997, p. 521.
- 7.
Ibid, p. 522.
- 8.
Scharpf 1997, p. 523.
- 9.
Scharpf 2000, p. 23.
- 10.
Barnard 2010, p. 225.
- 11.
See Regulation (EC) No 764/2008 of the European Parliament and of the Council laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State and repealing Decision No 3052/95/EC [2008] OJ L 218/21. The principle of Mutual Recognition will be further discussed in Part III, see for example Sect. 11.3.4.
- 12.
Article 35 TFEU sets out that quantitative restrictions on exports as well as all measures having an equivalent effect, are to be prohibited between Member States, however in such cases mutual recognition is not an issue.
- 13.
For such discussion, see Klamert 2010, p. 131.
- 14.
Case C-210/06, CARTESIO Oktató és Szolgáltató bt. [2008] ECR I-9641, at para 110. See also cases such as Case C-192/99, The Queen v. Secretary of State for the Home Department, ex parte: Manjit Kaur, intervener: Justice [2001] ECR I-1237; Case C-212/97, Centros Ltd v. Erhvervs- og Selskabsstyrelsen [1999] ECR I-1459; and Case C-208/00, Überseering BV v. Nordic Construction Company Baumanagement GmbH (NCC) [2002] ECR I-9919.
- 15.
This theory of recognition refers to a company’s or firm’s seat, where for example its board or owners are situated physically, and not necessarily where it is registered.
- 16.
The theory of “incorporation” basically requires that a company or firm be registered in a national register to be considered a company in that state.
- 17.
See for such discussion Hatzopoulos 2012, pp. 21–22.
- 18.
Or as expressed by Edward and Shuibhne 2009, pp. 244–245, that “services sit—sometimes uncomfortably—on the borderline between, on one hand, the law regulating the freedom of market (particular the freedom to market ‘invisibles’) and, on the other, the law governing the personal right of free movement of the service provider, or in the case of corporations, of the provider’s employees”.
- 19.
Van de Gronden and de Waele 2010, conclude that the country-of-origin principle essentially comes down to a jurisdiction rule, p. 401.
- 20.
Third paragraph of Article 16(1) of the Services Directive.
- 21.
Commission Communication on the action plan for the single market CSE(97) 1 final.
- 22.
Completing the Internal Market: White Paper from the Commission to the European Council (Milan, 28–29 June 1985) COM(85) 310, see De Witte 2007, p. 2.
Commission Communication on the action plan for the single market CSE(97) 1 final, p. 7.
- 23.
See for a further discussion regarding the evolution of the internal market in Part III.
- 24.
Completing the Internal Market: White Paper from the Commission to the European Council (Milan, 28–29 June 1985), COM(85) 310, p. 26 where it is provided that “in 1982 market services and non-market services already accounted for 57 % of the value added to the Community economy while industry’s contribution has dropped to less than 26 %”. This may be compared with the situation today when the services market represents 70 % of the GDP within the European Union, as set out in Recital 4 of the Services Directive.
- 25.
Ibid, at para 13.
- 26.
Ibid, at paras 67–73.
- 27.
The principle of Mutual Recognition and the “new” approach is further discussed in Part III.
- 28.
De Witte 2007, p. 4.
- 29.
See Case 48/75, Procureur du Roi v. Jean Noël Royer [1976] ECR 497, and Case C-55/94 Reinhard Gebhard v. Consiglio dell’Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165 as compared to Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein [1979] ECR 649 (Cassis), and, for the same reasoning, see De Witte 2007, p. 5. This will be further discussed in Chap. 7.
- 30.
See for example Council Directive 92/50/EEC relating to the coordination of procedures for the award of public service contracts [1992] OJ L 209/1. See also Sundstrand 2012, pp. 58–59.
- 31.
Council Directive 89/48/EEC on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration [1989] OJ L 19/16.
- 32.
Directive 96/71/EC of the European Parliament and of the Council concerning the posting of workers in the framework of the provision of services [1997] OJ L 18/1.
- 33.
Hatzopoulos and Uyen Do 2006, p. 923.
- 34.
However, it may also be the case that the free movement of services has not been utilised frequently because it involves the physical movement of either a provider or recipient of services, which may entail social, economic, cultural and linguistic difficulties. See the discussions by O’Leary 2011, p. 504.
- 35.
Commission Communication on the action plan for the single market CSE(97) 1 final.
- 36.
Ibid, p. 7.
- 37.
Ibid.
- 38.
Commission Communication on the strategy for Europe's internal market COM(1999) 464 final.
- 39.
Commission Communication on the strategy for Europe's internal market COM(1999) 624 final, in the Introduction, “The Single Market Observatory, a study group operating under the auspices of the Industry section of the Economic and Social Committee, considered the Communication at their meetings of 8 October and 8 November. The Commission organised a hearing on 29 October which was well-attended by representatives of industry, trade unions, other non-governmental organisations and of the candidate countries” (A full report of the hearing could at the time (but not now) be found on the Commission’s website. Other comments were received by e-mail and letter.)
- 40.
Commission Communication on the strategy for Europe's internal market COM(1999) 464 final, p. 4.
- 41.
Commission Communication, an internal market strategy for services, COM(2000) 888.
- 42.
Report from the Commission on the state of the internal market for services, COM(2002) 441.
- 43.
Commission Proposal for a directive on services in the internal market COM(2004) 2 final, at p. 5.
- 44.
Internal Market Strategy—Priorities 2003–2006, COM(2003) 238.
- 45.
Ibid, p. 1.
- 46.
Ibid.
- 47.
Commission Proposal for a directive on services in the internal market COM(2004) 2 final.
- 48.
Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities [1989] OJ L 289/23.
- 49.
Directive 2000/31/EC of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the internal market (Directive on electronic commerce) [2000] OJ L 178/1.
- 50.
Barnard and Deakin 2002 also referred to by Davies 2006, at p. 4. See also Otken Eriksson 2005.
- 51.
See the concerns raised during the discussions within the Council, press release C/04/323, from Council meeting 2624th on Competitiveness (Internal Market, Industry and Research), 25 and 26 November 2004.
- 52.
See the positions taken by ETUC, the European Trade Union Confederation, http://www.etuc.org/r/76.
- 53.
See the discussions in the Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council on services in the internal market (COM(2004) 2 final—2004/0001 (COD)) [2005] OJ C 221/113, especially Sections 3.3 and 3.6. See also Council, press release C/06/160, on 29 May 2006. See also for a discussion regarding issues related to European welfare states and the effects of Union law in Davies 2006, and in particular pp. 22–23.
- 54.
See, e.g., Articles, 114, 153 and 2(5) TFEU. See Sect. 5.3.
- 55.
Barnard 2008, p. 329, references made to the position taken by the European Trade Union Confederation (ETUC) as well as to the remarks made by Evelyne Gebhard who was the European Parliaments Rapporteur for the Services Directive. Furthermore, see also the discussion by De Witte 2007.
- 56.
Report on the proposal for a directive of the European Parliament and of the Council on services in the internal market (COM(2004)0002—C5-0069/2004—2004/0001(COD)), Committee on the internal market and consumer protection, rapporteur: Evelyne Gebhardt.
- 57.
Ibid.
- 58.
For a critical reasoning, see the Editorial comment CMLRev 2006, regarding the Parliaments amendments where the country-of-origin principle was replaced by the set of generally formulated rules such as “non-discrimination” and transparency. The original proposal was founded on the country-of-origin principle and a set of exemptions provided in Article 17 of the Directive.
- 59.
Article 16(1) of the Services Directive.
- 60.
Ibid.
- 61.
Ibid, Articles 1, 2 and 3.
- 62.
Hatzopoulos 2012, p. ix.
- 63.
For such reasoning, see Klamert 2010. Klamert concludes that Article 16 in the final version of the Services Directive being founded on host-state control whereby national restrictions are lawful unless successfully challenged. While, the country-of-origin principle represents purely home-state control, indicating that national law is not applicable in the first place.
- 64.
Article 16(1) of the Services Directive.
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Wiberg, M. (2014). Background to the Harmonisation of the Free Movement of Services. 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_2
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