8. Freedom to Provide and Receive Services

Question 1

What counts as a service?

Answer 1

TEST: A service must be:
1) Pursued on a temporary basis. This is determined by the service’s duration & regularity, periodicity or continuity (Gebhard).

2) a genuine and effective eco activity, Widely defined in (Deliege)
- – Generally, remuneration is sufficient.
- – must not be marginal or ancillary (Steymann).
- Providing info will NOT constitute a service, unless there is a connection between distributor and the service provider (SPUC v Grogan).
- immoral activities will constitute a service, providing it is remunerated, ie. Prostitution (Jany), Abortion (SPUC v Grogan).
- Lotteries constitute a service (Schindler).

3) Remunerated (Art 57 TFEU)
- Need not be given by recipient of the service, only by an “interested party”, including thrid parties (Deliege).

4) Cross-Border (Art 56 TFEU)
- A physical presence is not required, providing a service to another MS for remuneration is sufficient.
- Satellite transmissions are cross-border services (De Coster).
- The provider and recipient can be based in the same MS, there just needs to be a Cross- border element (Hubbard).
- NB: Whilst Art 56 can’t apply to activities confined within a MS (Debauve), a degree of externality may suffice (Deliege).

Question 2

Limitation: Exercise of Official Authority

Answer 2

Here, Art 62 TFEU applies Art 51 TFEU.

FtoPS doesn’t apply to activities linked to the exercise of Official Authority, even temporarily.

Art 51 is narrowly interpreted, for example, the below were deemed to fall outside it’s jurisdiction:

• The legal profession (Reyners)
• Computer Services for a lottery (Comm V Italy)
• Traffic Accident Experts (Comm v Greece).

Question 3

Limitation: Services

Answer 3

Services mustn’t be governed by a “provision relating to freedom of movement for goods, capital and persons” (Art 57(1) TFEU), unless it is clear that the other freedom is entirely secondary to the freedom to provide services (Omega).

Question 4

Restriction on FtoP/RS

Answer 4

Restrictions on FtoP/RS are prohibited by Art 56 TFEU (Deff est. in Van Binsbergen) and Art 16(1) D2006/123.

Def: a national measure liable to prohibit or impede the freedom to provide services (Sager).

including:

• DIRECT DISC (Van Binsbergen): disc on basis of nationality.
• InD DISC (Koestler): actions which have the effect fo desc on basis of nationality.
• INDISTINCTLY APPLICABLE MEASURES (Sager): any non-disc. measure that prohibits, impedes (Sager) or render less attractive (Analir (SETTING BAR VERY LOW)) the exercise of FtoP/RS.

NB (Push Portuguesa) - right to bring own workforce to a MS. D1996/71.

Question 5

Justifications: Derogations

Answer 5

Art 62 TFEU applies Art 52(1) TFEU to services.
So, a MS can derogate from FtoP/RS on the grounds of Public Policy, Public Security or Public Health.

REQ: The derogation must be PROPORTIONATE.
- where the derogation is the Public Policy, there must be a genuine and sufficiently serious threat affecting a fundamental interest of society (Omega).

Question 6

Justifications: Imperative Requirements (The “Rule of Reason”)

Answer 6

A measure restricting the provision of services will be justified where it is (Sager):

• Indistinctly applicable (I.e. NON-DISCRIMINATORY).
• justified by imperative reasons related to public interest.
• objectively necessary to protect the person receiving the service, AND
• PROPORTIONATE, (Eg, see (Comm v France (Tourist Guides).

Question 7

Issues: Freedom to Recieve Services

Answer 7

EU Nationals are entitled to receive public services (Luisi) including ancillary rights stemming from their right to receive services (Comm v Spain (Museum Entrance Fees)).

D2004/38: right to go to a MS to receive a service.

EDUCATION
- Education is NOT a service (Humbel), though EU nationals are entitled to pay the same tuition fees as nationals for vocational or university courses (Gravier).

MEDICAL TREATMENT
- EU nationals are entitled to medical treatment provided that they pay for it initially.
—No requirement to obtain prior authorisation from home MS to receive the treatment (Kohll).
—Irrelevant whether host MS healthcare is private or nationalised (Geraets-Smits/Peerbooms).
—Entitled to reimbursement from healthcare system of home MS where (Watts v Bedford):
- healthcare system of host MS can’t justify failure to provide treatment, and
- regardless of whether a reimbursement system is in place.
NB: MS can refuse treatement under Art 52 TFEU if “Rule of Reason” satisfied (Muller Faure).

The following constituted breaches of Art 56 TFEU:

• Allowing access to social housing to nationals only (Comm v Italy (Italian Housing)).
• Restricting victim compensation to French Victims (Cowan).