1. Freedom to provide services

2. The rule: Arts 56 & 57 TFEU
Art 56: “... restrictions on freedom to provide services shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended. ...”
Art 57: concept services: “where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to ... goods, capital and persons”.

3. Notes 56 talks about “restrictions”, not discrimination
cross-border element
remuneration element
subsidiary definition: only when other freedoms do not apply

4. Concept “service” and cross-border element
Economic concept of “services”; examples:
banking, insurance
telecoms
legal IT
Goods v services: tangible v intangible
Example: Schindler: selling lottery tickets is service

5. Establishment v services: permanent v temporary
Example: a bank with an office in another MS: establishment, not services!
A bank which sells a product in another MS over the internet: services
Any cross-border element:
service provider travels (Croatian lawyer in the ECJ)
service consumer travels (tourism)
the service travels (cross-border television)

6. “Remuneration”
creates distinction between economic and non-economic services
“public services”: depends!
education:
Humbel: no consideration for the service nor agreed between parties
Wirth: depends on extent of State funding!

7. “Restriction”
Same principle as Cassis de Dijon: indistinctly applicable measures are caught
“all measures liable to hinder or make less attractive the exercise of fundamental freedoms” – “to prohibit, impede, make less attractive”
Again emphasis on “market access”
Basic issue: to draw the line between what effectively restricts market access and what not

8. Alpine Investments: no Keck for services
Alpine Investments sells commodities futures contracts in Netherlands
Type of financial investment – very risky
Dutch authorities prohibit “cold calling”
Alpine Investments claims this hinders its ability to attract clients in other Member States

9. Court in Alpine Investments
Deprives firm of a rapid and direct technique for marketing
Does not matter that it is the MS of origin, not of destination
Netherlands and UK: is non-discriminatory, and is a selling arrangement
Keck was about market access
Prohibition directly affects access to the market in services in other MS

10. Notes Discrimination not required
First judgment to confirm focus on market access, after Keck
Selling arrangements reasoning does not work for services
But there must be a limit: taxes which merely add to cost of providing services are not caught

11. Commission v Italy Prohibition motor insurers to reject a client
Also premiums regulated
Indistinctly applicable
Restriction?

12. Court in Commission v Italy
“prohibit, impede, make less attractive”
Fact that other MS have less restrictive rules: not relevant
Affects access to the market for undertakings from other MS
Substantial interference in freedom to contract
Therefore a restriction

13. Notes Central notion of market access
Contrast a mere tax with the Italian contract requirement: much more intrusive for insurance companies from other MS
Goes to the heart of the freedom to provide services: is a freedom to contract

14. Exceptions and justifications
Art 52: public policy, public security, public health
To add: imperative or overriding requirements in the public interest (= mandatory requirements of Cassis de Dijon)
Proportionality
suitable/appropriate
necessary
non-discriminatory

15. Human rights and exceptions
Human rights protected as general principles EU law and under EU Charter
Can be relied upon in the context of internal market freedoms
What with conflict? Which rights prevail – internal market or human rights?
Should one ‘balance’ them?

16. Carpenter
Case which shows how human rights need not conflict with fundamental freedoms
Mrs Carpenter is from Phillipines & illegally resident in UK
Authorities seek to deport her

17. Mr Carpenter provides services in other MS
Mrs Carpenter helps by looking after the children
Challenge the deportation order as contrary to the freedom to provide services
Court agrees:
Deportation is a restriction of Mr Carpenter’s rights
Must be seen in the light of the right to family life
That human right (cf ECHR) leads to a wide conception of a restriction on freedom to provide services

18. Omega Spielhallen - Facts
Omega sets up laserdrome in Bonn
Obtains franchise from Pulsar (UK firm) for installation of laser shooting game
Bonn authorities object: playing at killing is affront to human dignity
Human dignity protected under Art 1 German Constitution

19. Omega Spielhallen - Court
Public policy exception
Variation between Member States is possible – margin of discretion
Here: fundamental right
Protection human dignity compatible with EU law
Proportionality permits different approaches
Level of protection and necessity

21. Viking Line - Facts Viking is Finnish ferry operator
Suffers from Estonian competition: Finnish wages too high
Seeks to ‘reflag’ the Rosella, to conclude new collective agreement with trade unions
Finnish trade union and International Transport Federation take collective action
Viking relies on right of establishment

22. Viking Line - Held
Trade union collective action not outside scope Treaty provisions on establishment
Right to take collective action is fundamental right (see also Charter), but can be limited
Balance must be struck: collective action justified in so far as ‘jobs or conditions of employment are jeopardised or under serious threat’

23. Notes
Human rights do not take measures outside scope internal market freedoms
As an exception to free movement, human rights can trump fundamental freedoms
No uniform concept of human rights: variation possible
Proportionality (balancing): light touch
Can human rights really be balanced against economic rights?