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Main elements of jurisprudence on which
the Services Directive is based and key
definitions
Dainis Matulis
Head of Division of the EU Market for Goods and Services,
Internal Market Department
Belgrade, 15 April 2011
Introduction I
The scope of Services Directive:

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Services Directive and Article 49 TFEU (ex Art.43 TEC) and Article 56
TFEU (ex Art.49 TEC):
Horizontal direct effect of Article 49 and 56 TFEU;
Recital 30:
There is already a considerable body of Community law on service activities.
This Directive builds on, and thus complements, the Community acquis.
Conflicts between this Directive and other Community instruments have
been identified and are addressed by this Directive, including by means of
derogations [...] The existence of such a conflict should be determined in
compliance with the rules of the Treaty [...].

Broad or dynamic content of certain concepts, e.g. Article 4(6), 4(8):

ECJ jurisprudence could be used as a source of reference to clarify certain
concepts introduced by the directive;
Overriding reasons recognized in the case law of the Court of Justice (a non
explicit list).

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Introduction II
Key definitions:
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a service;
authorization schemes;
overriding reasons relating to the public interest;
tacit approval;
a temporary service.
A brief overview of the jurisprudence:


the concept;
a legal framework.
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The concept of “a service” (I)
Economic activity

Article 57 TFEU

Article 4(1) of the Directive:
“Service" means any self-employed economic activity, normally provided for
remuneration, as referred to in Article 50 of the Treaty;

Recital 7:
This Directive establishes a general legal framework which benefits a wide
variety of services while taking into account the distinctive features of each
type of activity or profession and its system of regulation.
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The concept of “a service” (II)

“Having regard to the objectives of the Community, the practice of sport is
subject to Community law only in so far as it constitutes an economic activity
[...]. When such activity has the character of gainful employment or
renumeratied service it comes more particularly within the scope [...] of Article
48-51 or 59-66 of the Treaty.”;

“[...] the Community provisions on [...] services not only apply to the action
of public authorities but extend also to rules of any other nature aimed at
regulating gainful employment and the provision of services in a collective
manner. The abolition as between Member States of obstacles [...] to freedom to
provide services would be compromised if the abolition of State barriers could be
neutralised by obstacles resulting from the exercise, by associations or
organisations not governed by public law, of their legal autonomy.”;

“It is irrelevant that the broadcasters generally do not themselves pay the cable
network operators for relaying their programmes. Article 60 does not require
the service to be paid for by those for whom it is performed.”

Case C-36/74 Walrave and Koch [1974] ECR 1405;
Joined cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549;
Case 352/85 Bond van Adverteerders [1988] ECR 2085.
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The concept of “authorization schemes” (I)
Article 9: Authorisation schemes
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Member States shall not make access to a service activity or the exercise
thereof subject to an authorisation scheme unless the following
conditions are satisfied:

the authorisation scheme does not discriminate against the provider
in question;

the need for an authorisation scheme is justified by an overriding
reason relating to the public interest;

the objective pursued cannot be attained by means of a less
restrictive measure, in particular because an a posteriori inspection
would take place too late to be genuinely effective.
Conditions replicate the requirements of the jurisprudence
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The concept of “authorization schemes” (II)
Non-discrimination
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“In the perspective of a single market and in order to permit the realisation
of its objectives, that freedom likewise precludes the application of any
national legislation which has the effect of making the provision of services
between Member States more difficult than the provision of services purely
within one Member State”;
“the Treaty requires not only the elimination of all discrimination
against a person providing services on the ground of his nationality but also
the abolition of any restriction, even if it applies without distinction
to national providers of services and to those of other Member States, when
it is liable to prohibit or otherwise impede the activities of a provider of
services established in another Member State where he lawfully provides
similar services”.
Case C-381/93 Commission v France [1994] ECR I-5145;
Case C-76/90 Säger [1991] ECR I-4221;
Case C-198/89 Tourist Guides Greece [1991] ECR I-727.
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The concept of “authorization schemes” (III)
Proportionality

“[...] the proportionality of the restriction at issue, it is settled case-law that
requirements imposed on the providers of services must be appropriate
to ensure achievement of the intended aim and must not go beyond
what is necessary in order to achieve that aim [...]”;

“[...] the application of national provisions to providers of services
established in other Member States must be such as to guarantee the
achievement of the intended aim [...]”;

Case C-6/98 ARD [1999] ECR I-7599;
Case C-288/89 Mediawet I [1991] ECR I-4007.
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The concept of “authorization schemes” (IV)
Article 10: Conditions for the granting of authorisation

Member States shall not make access to a service activity or the exercise
thereof subject to an authorisation scheme unless the following
conditions are satisfied:
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

Authorisation schemes shall be based on criteria which preclude the
competent authorities from exercising their power of assessment in an
arbitrary manner.
The criteria shall be: non-discriminatory; justified by an overriding
reason relating to the public interest; proportionate to that public
interest objective; clear and unambiguous; objective; made public in
advance; transparent and accessible.
the objective pursued cannot be attained by means of a less restrictive
measure, in particular because an a posteriori inspection would take
place too late to be genuinely effective.
Conditions replicate the requirements of the jurisprudence.
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The concept of “overriding reasons
relating to the public interest” (I)
The right of establishment
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Article 52 TFEU
Article 4(8) of the Directive
Free movement of services

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Article 62 TFEU
Article 16(3) of the Directive

“Article 49 EC [56 TFEU] requires not only the elimination of all
discrimination on grounds of nationality [...] but also the abolition of any
restriction, even if it applies without distinction to national providers of
services and to those of other Member States, which is liable to prohibit or
further impede the activities of a provider of services established in another
Member State [...].

Case 17/00 De Coster [2001] ECR I-9445;
Joined Cases C-544/03 and C-545/03 Mobistar & Belgacom Mobile [2005] ECR I-7723.
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The concept of “overriding reasons
relating to the public interest” (II)
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Article 16 of the Directive provides no reference to the “public interest”;

Article 3(3) of the Directive:
“Member States shall apply the provisions of this Directive in compliance with the
rules of the Treaty on the right of establishment and the free movement of
services.”

The Services Directive and TFEU could be interpreted by means of a
systematical and/or teleological analysis.

No fundamental differences between two freedoms as far as it
concerns the justification for existing restrictions.
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The concept of “a tacit approval” (I)
Article 14: Authorisation procedures

Recital 43:
“[...]it is necessary to establish principles of administrative simplification, inter
alia through the limitation of the obligation of prior authorisation to cases in
which it is essential and the introduction of the principle of tacit authorisation by
the competent authorities after a certain period of time elapsed. Such
modernising action [...] is intended to eliminate the delays, costs and dissuasive
effects which arise, for example, from unnecessary or excessively complex and
burdensome procedures, the duplication of procedures, [..] the arbitrary use of
powers by the competent authorities, indeterminate or excessively long periods
before a response is given, [...]”, etc.

Article 14(3):
“Failing a response within the time period set or extended in accordance with
paragraph 3, authorisation shall be deemed to have been granted. Different
arrangements may nevertheless be put in place, where justified by overriding
reasons relating to the public interest, including a legitimate interest of third
parties.”
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The concept of “a tacit approval” (II)
Relevant provisions:
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Article 10 defines conditions for the granting of authorisation;
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Article 13(1): Authorisation procedures and formalities shall be clear,
made public in advance and be such as to provide the applicants with a
guarantee that their application will be dealt with objectively and
impartially.

Article 13(3): Authorisation procedures and formalities shall provide
applicants with a guarantee that their application will be processed as
quickly as possible and, in any event, within a reasonable period which is
fixed and made public in advance. [...] When justified by the complexity of
the issue, the time period may be extended once, by the competent
authority, for a limited time.
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The concept of “a tacit approval” (III)
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“Silence equals assent” procedure (Case of Latvia):
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Principle is not transposed into national law;
Administrative procedure law clearly defines the time periods for
processing an application (fully in compliance with Artcle 10 and 13);
Pursuant to Latvian Administrative Violations Code, for the provision of
regulated services without an authorization a services provider will be
imposed a fine;
National authorities comply with deadlines for the procession of
applications.
“[...] tacit authorisation, as in the “silence equals assent” procedure, is
incompatible with the provisions of Directive no. 80/68. Clear and precise
provisions are necessary in conformity with the principle of the certainty of
the law [...].” Case C-360/87 Commission v. Italy [ 99 ] ECR I-79.
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The concept of “a temporary service” (I)
Freedom to provide services

Article 16(1)
“Member States shall respect the right of providers to provide services in a
Member State other than that in which they are established.
The Member State in which the service is provided shall ensure free
access to and free exercise of a service activity within its territory.”

Recital 79:
“The Court of Justice has consistently held that Member States retain the
right to take measures in order to prevent providers from abusively taking
advantage of the internal market principles. Abuse by a provider should be
established on a case by case basis.”
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The concept of “a temporary service” (II)

“[...]the temporary nature of the provision of services [...] is to be
determined in the light of its duration, regularity, periodicity and
continuity”.;

“No provision of the Treaty affords a means of determining, in an abstract
manner, the duration or frequency beyond which the supply of a service
or of a certain type of service in another Member State can no longer be
regarded as the provision of services within the meaning of the Treaty.”;

“The fact that the activity is temporary does not mean that the provider of
services [...]may not equip himself with some form of infrastructure in
the host Member State [...] in so far as such infrastructure is necessary for
the purposes of performing the services in question.” ;

Case
Case
Case
Case
C-55/94 Gebhard [1995] ECR I-4165;
C-58/98 Corsten [2000] ECR I-7919;
C-131/01 Commission v Italy [2003] ECR I-1659;
C-215/01 Schnitzer [2003] ECR I-4847.
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The concept of “a temporary service” (III)
Derogations from the principle:
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Article 4(8) is not applicable;
Article 16:
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non-discrimination, necessity and proportionality;
justification for reasons of public policy, public security, public health or the
protection of the environment.
Article 18: Case-by-case derogations
“[...] in exceptional circumstances only, a Member State may, in respect of a
provider established in another Member State, take measures relating to the
safety of services.”

Recital 41
“The concept of ‘public policy’, as interpreted by the Court of Justice, covers the
protection against a genuine and sufficiently serious threat affecting one of the
fundamental interests of society and may include, in particular, issues relating to
human dignity, the protection of minors and vulnerable adults and animal
welfare. Similarly, the concept of public security includes issues of public safety.”
Case 41/74 Van Duyn [1974] ECR 1337
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Conclusions

Clear and precise provisions are necessary in conformity with the principle
of the certainty of the law;

Conditions replicate the requirements of the jurisprudence;

Overriding reasons recognized in the case law of the Court of Justice (a
non-exhaustive list);

ECJ jurisprudence could be used as a source of reference to clarify certain
concepts introduced by the directive;

The interpretation of the provisions defining the scope of the directive is
crucial.
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