Skip to main content
SpringerLink
Log in
Book cover

The EU Services Directive: Law or Simply Policy? pp 57–63Cite as

The Services Directive as Legislative Tool

  • Chapter
  • First Online:

  • 511 Accesses

Part of the book series: Legal Issues of Services of General Interest ((LEGAL))

Abstract

Since the Services Directive is adopted as a “directive”, imposing negative obligation on the Member States to “remove all requirements”, in this chapter, an illustration is provided of the general characteristics of directives as legislative tools within the meaning of Union law. Firstly, a brief discussion is provided of the legal basis established in the Treaty for adopting directives as legislative tools to harmonise the Member States rules and provide for a level playing field within the Union. Secondly, a presentation is made of the fact that there are different harmonisation models used in directives in order to realise the internal market. Thirdly, a description is provided of the requirements imposed on the Member States in implementing directives into national legislation and, finally, positive- and negative integration is explained in this respect.

This is a preview of subscription content, log in via an institution.

Chapter
USD   29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD   84.99
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Hardcover Book
USD   109.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Learn about institutional subscriptions

Notes

  1. 1.

    Articles 4 and 5 TEU.

  2. 2.

    Article 288 TFEU.

  3. 3.

    Articles 4(3) TEU. See also 291(1) TFEU.

  4. 4.

    Gormley 2008.

  5. 5.

    Prechal 2005, p. 14, see the references made in footnotes 13–15.

  6. 6.

    Ibid, pp. 3–4. Examples given include the field of public utilities, such as communications, electricity, and gas. In this respect, directives may provide for national regulatory authorities to be given rather far-reaching powers to regulate the market at issue, often under the direct control of and in close cooperation with the Commission, Prechal 2005, pp. 41–42. This may be exemplified by Directive 2009/72/EC of the European Parliament and of the Council concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (Text with EEA relevance) [2009] OJ L 211/55 and Directive 2009/73/EC of the European Parliament and of the Council concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (Text with EEA relevance) [2009] OJ L 211/94, both providing in their first Articles that they are to establish “common rules” within the Member States.

  7. 7.

    However, it may be taken into account in the evaluation whether a directive has been properly implemented or not, see Case C-372/99, Commission of the European Communities v. Italian Republic [2002] ECR I-819, at para 20.

  8. 8.

    See Hettne and Otken Eriksson 2011, pp. 179–180, referring to Case C-315/98, Commission of the European Communities v. Italian Republic [1999] ECR I-8001, at para 10.

  9. 9.

    See Prechal 2005, pp. 17–18 referring both to the case law of the Court, Case 39/72, Commission of the European Communities v. Italian Republic [1973] ECR 101 and Declaration of Community law, establishing that “it is central to the coherence and unity of the process of European construction that each Member State should fully and accurately transpose into national law the Community Directives addressed to it within the deadlines laid down therein”. Ibid. p. 18, at footnotes 37 and 38.

  10. 10.

    See Case C-72/95, Aannemersbedrijf P.K. Kraaijeveld BV e.a. v. Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403; and Case 815/79, Criminal proceedings against Gaetano Cremonini and Maria Luisa Vrankovich [1980] ECR 3583, para 6.

  11. 11.

    See for such discussion in Prechal 2005, p. 4, referring to Boulouse, footnote 24.

  12. 12.

    Devuyst 2007–2008, p. 266.

  13. 13.

    Article 17 TEU.

  14. 14.

    See Slot 1996, pp. 382–388, who identifies “optional”, “partial” and “minimum” harmonisation alongside “total” harmonisation.

  15. 15.

    Dougan 2000, p. 854. See Case 5/77, Carlo Tedeschi v. Denkavit Commerciale s.r.l. [1977] ECR 1555.

  16. 16.

    Case 5/77, Carlo Tedeschi v. Denkavit Commerciale s.r.l. [1977] ECR 1555. See furthermore, Case C-5/94, The Queen v. Ministry of Agriculture, Fisheries and Food, ex parte: Hedley Lomas (Ireland) Ltd. [1996] ECR I-2553.

  17. 17.

    Case 5/77, Carlo Tedeschi v. Denkavit Commerciale s.r.l. [1977] ECR 1555, at para 34.

  18. 18.

    Van de Gronden and de Waele 2010, p. 410.

  19. 19.

    Council Directive 74/63/EEC on the fixing of maximum permitted levels for undesirable substances and products in feedingstuffs [1974] OJ L 38/31.

  20. 20.

    See also, Cases C-421/98, Commission of the European Communities v. Kingdom of Spain [2000] ECR I-10375, at paras 41–42 and C-17/93, Criminal proceedings against J.J.J. Van der Veldt [1994] ECR I-3537, at para 25.

  21. 21.

    Weatherill 2002, pp. 60–61.

  22. 22.

    Case C-376/98, Federal Republic of Germany v. European Parliament and Council of the European Union [2000] ECR 8419.

  23. 23.

    Directive 98/43/EC of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products [1992] OJ L 213/9.

  24. 24.

    Weatherill 2002, p. 61.

  25. 25.

    See Directive 2010/13/EU of the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive), [2010] OJ L 95/1, where it is provided in Article 26 that: “Member States may, with due regard for Union law, lay down conditions other than those laid down in Article 20(2) and Article 23 in respect of television broadcasts intended solely for the national territory which cannot be received directly or indirectly by the public in one or more other Member States.” See Arena 2011.

  26. 26.

    Bakardjieva Engelbrekt 2003, p. 382.

  27. 27.

    Articles 30, 48, 52, 59 and 73b in the Treaty of Rome, now Articles 34, 45, 49, 56 and 63 of the Treaty of Lisbon.

  28. 28.

    Bakardjieva Engelbrekt 2003, p. 382.

  29. 29.

    Pelkmans 2006, p. 54.

  30. 30.

    Ibid, pp. 54–55.

  31. 31.

    The author’s opinion is that in this context, negative integration should not be provided in harmonisation measures. This is further discussed in the conclusions in Chap.  15. Secondary legislation should concern market failures, or rather possible justifications that are admitted by the Community.

  32. 32.

    Craig 2002, p. 5.

  33. 33.

    See also Article 9 of the Services Directive.

Author information

Authors and Affiliations

  1. Department for the EU Internal Market, Swedish Ministry of Foreign Affairs, Stockholm, Sweden

    Maria Wiberg

Authors
  1. Maria Wiberg
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Maria Wiberg .

Rights and permissions

Reprints and permissions

Copyright information

© 2014 T.M.C. Asser Press and the author

About this chapter

Cite this chapter

Wiberg, M. (2014). The Services Directive as Legislative Tool. 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_4

Download citation

Publish with us

Policies and ethics

Societies and partnerships

Search

Navigation