Week 7: Free Movement of Services



WEEK 7: FREE MOVEMENT OF SERVICES

Introduction

The realization of internal market remains and has long been one of the basic goals of the integration of Europe. The freedoms of Treaty, such as the freedom of persons, services, capital, and goods form the essential pillars of this internal market which have been deduced by the ECJ (The European Court of Justice) for the purpose of giving rights to the individuals for challenging the measures that limit these rights of free movement. In numerous relatively current cases, the safeguard of the Treaty Freedoms conflict with another basic rule of the EU (European Union), namely the defense of the basic rights.

In this paper, there will be a critical discussion about the extent to which the free movement of services has now been achieved within the EU, and this will be done by reviewing the case law of ECJ surrounding Articles 56-62 TFEU (49-55 TEC) as it existed prior to Directive 2005/36 on the recognition of professional qualifications and Directive 2006/124, 'The Services Directive', analyzing, in particular, the ECJ rulings as to the scope of Article 56 TFEU (49 TEC) relating to the freedom to provide services and the development by the ECJ of a test for justification in relation to restrictions on that freedom.

Discussion

As, the Treaty Freedoms shape the foundation of the project of the European integration and the ECJ has submits to the Treaty Freedoms consistently as Fundamental Freedoms, the result of the case of Schmidberger came as no revelation. Additionally, the Charter of European Union's Fundamental Rights seems confirming that there is no any chain of command between various types of rights, as it meets the criteria for the free movement of services, workers, and establishment as a component of Article 15 on the freedom for choosing a profession and right for being engaged in some job. In different businesses circles and among business clients, at times there are some enduring doubts that are in relation with the effectiveness of the law enforcements regarding single market, including the case law of the ECJ. Those doubts become a reason of frustration, higher costs, and neglects the opportunities of business and at the same time also lessen the consumers' level of confidence concerning specific goods and services.

In the elucidation of free movement of workers, services, and freedom of establishment, the access-test of the market is well-established now though there is difference to how there should be an interpretation of this notion. By Sager, this market access' focus can be traced back. There, the court held the requirements for the freedom of providing services under Article 56 TFEU: “Not just the abolition of all discrimination in opposition to an individual offering services on the basis of his/her nationality but at the same time the elimination of any limitation, even though if it pertains without distinction to providers of national services and to other Member States, when it is accountable for prohibition or else obstruct the activities ...