1. Settlement of disputes in the case of the prohibition of the access to the market
Seminar on EU Service Directive
Budapest, 3 May 2007
Thibaut Partsch
Attorney

2. Disput settlement - Thibaut Partsch
Outline
Introduction
Procedures in the Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (the “Directive”)
Preliminary rulings
Actions by the EU Commission
Disput settlement - Thibaut Partsch

3. Few references to dispute resolution
“… the means of redress which are generally available in the event of dispute between the competent authorities and the provider …” (Art. 7 (1) (d) Directive)
“Except in the case of the granting of an authorisation, any decision from the competent authorities, including refusal or withdrawal of an authorisation, shall be fully reasoned and shall be open to challenge before the courts or other instances of appeal.” (Art. 10(6) Directive)
Art. 27 Directive “Settlement of dispute”
Introduction
Few references
Procedural provisions
Treaty framework
Procedures
Preliminary rulings
EU Commision’s actions
Disput settlement - Thibaut Partsch

4. Transparency and procedural requirements
Right to information (Art. 7 Directive)
Conditions for granting the authorisation (Art. 10 Directive)
Selection procedure (Art. 13 Directive)
Prohibited requirements (art. 14 Directive)
Requirements to be evaluated (Art. 15 Directive)
Introduction
Few reference
Procedural provisions
Treaty framework
Procedures
Preliminary rulings
EU Commision’s actions
Disput settlement - Thibaut Partsch

5. Framework of the Treaty
Preliminary rulings
Actions by the EU Commission
Introduction
Few reference
Procedural provisions
Treaty framework
Procedures
Preliminary rulings
EU Commision’s actions
Disput settlement - Thibaut Partsch

6. Procedures set forth by the Directive
Special attention to the procedure for the freedom of establishment
Conditions (Art. 10 Directive)
Authorisation procedure (Art. 13 Directive)
Disput settlement - Thibaut Partsch

7. Disput settlement - Thibaut Partsch
Conditions (Art. 10)
“… based on criteria which preclude the competent authorities from exercising their power of assessment in an arbitrary manner.”(Art. 10(1) Directive)
Criteria shall be :
“Clear and unambiguous” (Art.10(1)(d) Directive)
“Made public in advance” (Art. 10(1)(f) Directive)
“Transparent and accessible” (Art. 10(1)(g) Directive)
“… any decision from the competent authorities, including refusal or withdrawal of an authorisation, shall be fully reasoned and shall be open to challenge before the courts or other instances of appeal” (Art. 10(6) Directive)
Introduction
Procedures
Conditions
Procedure
Preliminary rulings
EU Commision’s actions
Disput settlement - Thibaut Partsch

8. Procedure (Art. 13 Directive)
“… clear, made public in advance” (Art. 13(1) Directive)
“…processed as quickly as possible and, in any event, within a reasonable period which is fixed and made public in advance. The period shall run only from the time when all documentation has been submitted” (Art. 13 (3) Directive)
“Failing a response within the time period set or extended in accordance with paragraph 3, authorisation shall be deemed to have been granted” (Art. 13(4) Directive)
Indication of the available means of redress (Art. 13 (5) Directive)
Fully reasoned (Art. 10(6) Directive)
Introduction
Procedures
Principles
Conditions
Procedure
Preliminary rulings
EU Commision’s actions
Disput settlement - Thibaut Partsch

9. Disput settlement - Thibaut Partsch
Preliminary rulings
Principles
Conditions
Effects
Disput settlement - Thibaut Partsch

10. Disput settlement - Thibaut Partsch
Principles
National judge in charge of applying EU law rules
No right of action to EU Courts against acts of the Member States (Art. 230 EC)
Preliminary rulings (Art. 234 EC)
Introduction
Procedures
Preliminary rulings
Principles
Conditions
Effect
EU Commision’s actions
Disput settlement - Thibaut Partsch

11. Disput settlement - Thibaut Partsch
Conditions
Questions on the interpretation of the Treaty or the validity and interpretation of acts of the institutions of the Community and of the ECB (Art. 234, § 1, EC)
Raised in front of a Tribunal :
“that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon” (Art. 234, § 2, EC)
“Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice” (Art. 234, §3, EC)
Introduction
Procedures
Preliminary rulings
Principles
Conditions
Effect
EU Commision’s actions
Disput settlement - Thibaut Partsch

12. Disput settlement - Thibaut Partsch
Effect
For the dispute
For other cases
Introduction
Procedures
Preliminary rulings
Principles
Conditions
Effect
EU Commision’s actions
Disput settlement - Thibaut Partsch

13. Actions by the EU Commission
Principle
Procedure
Efficiency
Disput settlement - Thibaut Partsch

14. Disput settlement - Thibaut Partsch
Principles
EU law is enforced by Member States and the Commission
Citizens may denounce infringements to the EU Commission
EU Commission may act against Member States for failures to fulfil their obligations under the Treaties
Introduction
Procedures
Preliminary rulings
EU Commision’s
Actions
Principles
Procedure
Efficiency
Disput settlement - Thibaut Partsch

15. Disput settlement - Thibaut Partsch
Procedure – Art. 226 EC
“If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations” (Art. 226, §1, EC)
“If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice” (Art. 226, § 2, EC)
Introduction
Procedures
Preliminary rulings
EU Commision’s
Actions
Principles
Procedure
Efficiency
Disput settlement - Thibaut Partsch

16. Disput settlement - Thibaut Partsch
Efficiency
Important for general questions
More limited in case of individual issues
Introduction
Procedures
Preliminary rulings
EU Commision’s
Actions
Principles
Procedure
Efficiency
Disput settlement - Thibaut Partsch

17. Disput settlement - Thibaut Partsch
Questions?
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Thibaut Partsch
Disput settlement - Thibaut Partsch