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This post is sponsored by abogados de accidentes

(1) CJ considered ‘objective justification’ as a possible derogation – taking into account the particular services to be provided. Purpose is application of professional rules justified by general good e.g. organisation, qualifications, ethics, supervision, liability. They are binding on those established in the state where service is provided. Person providing services would escape the rules by being established elsewhere. State would need to show: legitimate public interest; equally applicable rule; objective justification.

(2) Not mentioned specifically in Art.56TFEU Luisi and Carbone –v- Ministero del Tesoro [1984] ECR 377. Two Italians were prosecuted for exceeding limits on currency movements from Italy.  Withdrew large sums (US$, French & Swiss Francs, DMs) and crossed into Germany and France ‘for purposes of tourism’ and also for medical treatment. CJ held that: an ‘important corollary’ of right to provide services is right to receive them – otherwise, Art.56 is ineffective. Art.56 includes freedom to go to another M/S to receive a service there without obstruction – tourists, persons receiving medical treatment, and persons travelling for purpose of education or business.

In Cowan –v- Trésor Public [1989] English tourist was assaulted and robbed on Paris métro – applied to French state for criminal injuries compensation – claim refused as it could only be made by French national. CJ: rule obstructed his right to move freely in France and receive services (tourism) – breached his Art.56 rights.

(3) Businesses providing certain services may be established in one M/S and service customers in another M/S, with neither party crossing a border – still falls within the scope of Art.56.

Only the services themselves cross borders For example: telephone, e-mail, internet, cable or satellite TV

Alpine Investments BV –v- Minister van Financien [1995] Dutch company offered financial services, by telephone, to potential customers in Netherlands, Belgium, France and UK.  ‘Cold calling’ was banned in Netherlands, without the prior consent of customers.

CJ: prohibiting the telephoning of customers in other M/S without prior consent can be a restriction on freedom to provide services – deprives company of rapid, direct technique for marketing and contacting clients.

The Limitations on service freedom. The state has stated that certain activities are illegal or that consumers need protection in certain service sectors. In the case of Sager v Dennemeyer 1991 it was stated that the freedom to provide services may be limited only by rules which are justified by imperative reasons relating to the public interest which apply to all persons undertaking an activity in the state… These requirements must be objectively necessary in order to ensure compliance with professional rules and must not go beyond what is expected.

The rule must be non-discriminatory, it must be justified by imperative requirements in the general interest, suitable of the objective and must not go beyond what is expected to attain objective.

Article 57 TFEU states that services protected by Article 56 are normally provided for remuneration; a requirement which removes gifts and unsolicited activity from the scope of the treaty articles. The absence of remuneration can lead to an activity not being considered a service, therefore not protected by Article 56.

Directive 2006/123 on services adopted in 2007. It aims to remove remaining barriers to right of ‘establishment’ and temporary provision of services. Complex and confusing directive.  CJ is expected to be very active, initially, in interpreting what it actually means in practice. Applies to services supplied by providers established in a M/S – any ‘self-employed economic activity normally provided for remuneration’. Excludes: non-economic services; financial services; electronic communications; transport; Art.16 – states general principle (similar to Art.56TFEU) – ban on host state regulating cross-border services – lists prohibited restrictions

Also sets out ‘mandatory requirements’ that may justify restrictions such as public policy, security and health; protection of environment; employment conditions. RE DO!!