Free movement of services Flashcards
Which four scenario’s are there when talking about free movement of services?
There are four types of scenarios within the free movement of services:
1. The service recipient crosses the border (e.g., to receive medical treatment abroad, because
you want to travel to a specialist in Spain for a surgery);
2. The service provider crosses the border (e.g., a Belgium-based lawyer wants to represent a
client in the Netherlands: Van Binsbergen case);
3. The service itself crosses the border: the services recipient and the service provider actually
both remain in their own country (e.g., providing investment advice over the phone in another
Member State: Alpine Investments case).
4. Both the service provider and the service recipient cross the border (e.g., tourism or tour
guide, or a French DJ travelling from Paris to Ibiza for contract negotiations is joined by his
Paris based manager for advice).
When is there a service?
Art. 57 TFEU
+
Grogan-case:
. It was decided that where an activity is ‘lawfully practiced in several Member States’, the
immoral or illegal status of the service in one or more State(s) will not prevent the Court from holding
that a ‘service’ within the meaning of article 57 TFEU has been rendered.
How do you determine which kind of freedom prevails?
It furthermore
decided that if there is a conflict consisting of the decision of which freedom will prevail in a certain
case, it is necessary to consider to what extent the exercise of those fundamental liberties is affected
and whether, in the circumstances of the main proceedings, one of those prevail over the other. This
is also called the ‘center of gravity’-approach.
How can a breach of art. 56 TFEU be justified?
Express justification, art. 62 TFEU + proportionality test
Implied justification, Säger case: Gebhard-justification also applies to the free movement of services + proportionality test
How can a breach of art. 56 TFEU be excepted?
On the basis of article 62 TFEU, article 51 TFEU is declared applicable to the free movement of
services. Therefore, article 51 TFEU in conjunction with article 62 TFEU allow for the public service
exception in the two areas of free movement of services. This means that the free movement of
services is not applicable to professions exercising public authority.
