Guide to the case law of the European Court of Justice on Articles 59 et seq. EC Treaty

European Commission Directorate-General For The Internal Market And Services

Sujets

• Directory
• Internal Market (European Union)
• European Union law
• Court of Justice of the European Union

Informations

• Publié par: EUROPEAN-COMMISSION-DIRECTORATE-GENERAL-FOR-THE-INTERNAL-MARKET-AND-SERVICES
• Nombre de lectures: 378
• Langue: English
• Poids de l'ouvrage: 3 Mo

Extrait

PROJECT
IMPROVING
THE AWARENESS OF COMMUNITY LAW
FOR THE LEGAL PROFESSIONS
GUIDE TO THE CASE-LAW
OF THE EUROPEAN COURT OF JUSTICE IN ARTICLES 59 ET SEQ. OF THE EC TREATY
FREE MOVEMENT OF SERVICES
EUROPEAN COMMISSION
1.1.1997 GUIDE TO THE CASE LAW
of the European Court of Justice
on Articles 59 et seq. EC Treaty
FREE MOVEMENT OF
SERVICES
European Commission
1/1/1997 A great deal of additional information on the European Union is available on the Internet.
It can be accessed through the Europa server (http://europa.eu.int)
Cataloguing data can be found at the end of this publication
Luxembourg: Office for Official Publications of the European Communities,1997
ISBN 92-828-1052-6
© European Communities, 1997
Reproduction is authorized, provided the source is acknowledged
Printed in Italy III
The present guide forms part of a series of guides concerning the case law of the European
Court of Justice. To date this series includes publications in English, French and German
concerning Article 52 EC Treaty (freedom of establishment) and Article 59 EC Treaty
(freedom to provide services).
The guidebooL· are produced and updated by the European Commission, Directorate-
General XV (Internal market and financial services), Unit El (freedom of establishment and
freedom to provide services).
As the present guide is intended to facilitate the understanding and analysis of issues
concerning Article 59 EC Treaty, it complements the Robert Schuman Project which aims to
increase overall awareness of Community law among judges and lawyers throughout the
Member States.
The project's spheres of action include training programmes to increase the awareness and
consequent application of EC law for judges and lawyers, and the production ofinformation
tools aiming to improve understanding and access to Community law.
Whereas the present guide is produced entirely by the services of the Commission, the Robert
Schuman Project functions as a partnership between the Commission and eligible
organisations, by which financial support is provided to organisations willing to set up
training initiatives for judges and lawyers or to produce information sources on EC law.
For further information concerning either the Guides to the Case Law or the Robert Schuman
Project please contact the following:
Guides to the Case Law Robert Schuman Project
Copies can be obtained from: All information can be obtained from:
Mme M.H. Ruske M. M. Mariani
tel: [phone] td: (32.2) 296.09.42
Further information:
Mme V. Guennelon
tel: [phone] IV
Introduction 1
List of cases 3
1 DEFINITION OF ' ' SERVICES ' * 5
1.1 General Principles
1.1.1 Economic activity
1.1.2 Cross-border character 8
1.1.3 Temporaryr 12
1.1.4 Residual application4
1.2 Recipients of services6
2 DEFINITION OF "RESTRICTIONS"7
2.1 General Principles 1
2.2 Rules of national law 20
2.2.1 Discrimination1
2.2.2 Non-discriminatory measures6
2.2.3 Non-recognition of rules of Member State of establishment 28
2.2.4 Application of the rules of State of destination 3
2.2.5 Restrictions on exportation 32
2.3 Specific types of restrictions3
2.3.1 Nationality
2.3.2 Residence, establishment5
2.3.3 Admission to a profession9
2.3.3.1 Diplomas 41
2.3.3.2 Other professional qualifications4
2.3.4 Licences and authorisations
2.3.5 Pursuit of an economic activity7
2.3.5.1 Restrictions on the conditions of this pursuit 4
2.3.5.2 Useful facilities for the pursuit of these activities8
2.3.5.3 Social security contributions
2.3.6 Exclusive rights and monopolies 53 JUSTIFICATION OF "RESTRICTIONS" 52
3.1 General Principles
3.1.1 Restrictive interpretation of exceptions
3.1.2 Reasoning of the Court3
3.2 Is the restriction justified by the general interest? 54
3.2.1 Admissible justifications 56
3.2.1.1 Short list of discriminatory restrictions
3.2.1.2 Longer list for non-discriminatory restrictions 57
3.2.1.3 Circumvention of establishment8
3.2.2 Examples of acceptable justifications9
3.2.2.1 Article 55 EC
3.2.2.2e 56 EC 61
3.2.2.3 The efficient administration of justice3
3.2.2.4 Cohesion of the tax system
3.2.2.5 Protection of the recipients of services4
3.2.2.6 Consumer protection
3.2.2.7 Protection of workers 66
3.2.2.8n of creditors9
3.2.2.9 Professional ethics 6
3.2.2.10 Intellectual property 72 1 Cultural policy3
3.2.2.12 Historic and artistic treasures4
3.2.2.12.1 Conservation5 2 Proper appreciation
3.2.2.12.3 Better distribution of knowledge 77
3.2.2.13 Maintaining the good reputation of the financial sector 74 Road safety8
3.2.2.15 Preserving diversity of opinion
3.2.3 Examples of unacceptable justifications 7
3.2.3.1 Economic justifications
3.2.3.2 Administratives 80
3.2.3.3 Technical differences between mechanisms intended
to protect the same public interest
3.3 Is there a link between the restriction and the general interest? 81
3.3.1 "Appropriateness" of measure
3.3.2 "Necessity" of measure 83
3.3.3 "Indispensability" of measure5 VI
3.4 Is the general interest protected in the country of origin? 86
3.5 Is the restriction proportional to the general interest?9
3.5.1 Principle of proportionality 8
3.5.2 Priority for less restrictive measures 90
4 SPECIFIC QUESTIONS 93
4.1 Specific professions
4.1.1 Tourist guides
4.1.2 Medical professions4
4.1.3 Insurance7
4.1.4 Lawyers 102
4.1.5 Radio, television, film 10
4.1.6 Employment agencies8
4.1.7 Lotteries 110
4.1.8 Transport1
4.2 Technical aspects
4.2.1 Article 592
4.2.1.1 Direct applicability of Article 59 11
4.2.1.2 Interpretation of Article 594
4.2.2 Relation to other primary law5
4.2.2.1 Article 5 EC
4.2.2.2e 7 EEC (Currently Art.6 EC)6
4.2.2.3 Article 30 EC 117
4.2.2.4e 48 EC9
4.2.2.5 Article 52 EC 120
4.2.2.6e 61 EC
4.2.2.7 Article 62 EC3
4.2.2.8 Articles 67 and 106 EEC (Currently 73B.2 EC) 12
4.2.2.9s 37 and 90 EC5
4.2.2.10 Article 84 EC6 1 Fundamental rights
4.2.3 Relation to secondary law9
4.2.3.1 Absence of a common policy 12
4.2.3.2 During the transitional period 131
4.2.3.2.1 General programmes2 2 Role of directives3
4.2.3.3 After the transitional periodVII
4.2.3.3.1 Role of directives 133 2 Sector-based directives5
4.2.3.3.3 General system of mutual recognition of diplomas 137
4.2.4 Relation to national law7
4.2.4.1 General principles
4.2.4.2 National criminal legislation 140
4.3 Extra-Community aspects of the provision of services
4.3.1 External Community competence in the services sector 14
4.3.2 The presence of third-country nationals in the free provision
of services 142
4.3.3 Services to third-country nationals in the EC 143