Revision

Provision of services are possibly the most dynamic four freedoms from the Treaty of Rome due to the conception of what constitutes to being a service. The breadth of what the treaty article allows to be considered a service is why this area has been a victim of many debates in terms of case law development and legislative output. The courts have stated that the rights protected by Article 56 TFEU are actually wider than protection from discrimination on grounds of nationality residence. Article 56 is not solely concerned with economic activities, it actually expands into many fields such as music, sport and education, the list goes on.

Article 56 provides that: Restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of member states who are established in a MS other than that of the persons for whom the services are intended. The Europe parliament and council may extend the provisions to nationals of a third country who provided services and who are established within the Union.

Non Discrimination and Direct Effect – The rights created in Article 56 were originally understood in terms of the right of non-discrimination. Walrave and Koch –v- Association Union Cycliste Internationale [1974]. Two Dutch cyclists challenged the association’s rules that the ‘race pacemaker must have same nationality as the competitor’. AUCI argued: Art.56TFEU can only be invoked against M/S and public bodies, not sports associations. CJ: if so, this would obstruct FM – must be able to use Art.56 to challenge rules regulating employment and provision of services. Thus, Art.56 has horizontal direct effect

The concept of services is defined in Article 57, services shall include; activities of an individual character, commercial character, craftsmen and professions.

Whether the provision of remuneration in return for an activity is key to that activity being classed as a service is contested. Article 57 states that services protected by Article 56 are normally provided for remuneration; a requirement that expressly removes gifts and unsolicited activity from the scope of Treaty articles. Some economic link is expected between provider and recipient of services. May not be the person who receives the services who provides the remuneration.

Art.56 prohibits national laws that discriminate against providers of services from other M/S.  How may services, generally, be provided? Three types of cross-border activity:

(1) Where service provider moves temporarily from Member State A to Member State B

(2) Where services recipient moves temporarily from Member State A to Member State B

(3) Where no person moves – the services move – e.g. via telecommunications, or TV.

Freedom to provide Services (1) Art.56’s origins lie in ‘anti-discrimination’, direct and indirect – but no need for different nationalities to be involved van Binsbergen –v- Bestuur an de Bedrijfsvereniging voor de Metaalnijverheid [1974] Dutch lawyer moved to live in Belgium and was told he could not continue to represent his Dutch client at Dutch social security tribunal – lack of residence in Netherlands. CJ stated: no requirement that provider/recipient be of different nationalities for Art.56 to apply CJ: affirmed that Art.56 has direct effect – rule indirectly discriminates against foreign nationals who are less likely to reside in the Netherlands.

Freedom to Receive Services (2) Luisi and Carbone –v- Ministero del Tesoro [1984] 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: 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.

Health care – Questions of eligibility for service provision in other M/S arise in relation to healthcare. Raises question of access to public services under Art.56 by other EU nationals. Patients travel to another M/S, then bill their own health service provider for treatment received. In Kohll v Union des Maladie 1998 the court asserted that such treatment amounts to economic services and as such should create an entitlement protected by Community law.

Geraets-Smits –v- Stichting Ziekenfonds VGZ and Peerbooms –v- Stichting CZ Grouep Zorgverzekeringen 2001. Dutch authorities imposed requirement of authorisation to receive medical treatment in another M/S. CJ: authorities could impose conditions: (i) treatment must be ‘normal in professional circles concerned’ and (ii) treatment must be necessary. (i) ‘Normal’?= ‘sufficiently tried and tested by international medical science’. (ii) ‘Necessary’? = state can refuse only if ‘same or equally effective’ treatment can be obtained ‘without undue delay’ in a hospital having a contract with person’s sickness fund. This ensured that the treatment concerned is assessed according to international and not just national criteria.

R -v- Bedford Primary Care Trust and Sec. of State for Health ex parte Watts [2006] ECR I-4325 – (authorisation is complicated by different funding schemes for health in 2 M/S. UK citizen – arthritis sufferer – on NHS waiting list for treatment in UK.  Sought court order to recover costs of treatment received in France.  UK Court asked CJ whether, under Art.56, NHS must fund treatment carried out in another M/S? CJ: It is within scope of Art.56, regardless of the different way that the services are provide AND: Prior authorisation requirement is an obstacle! BUT: it could be objectively justified – but not on ground that, although waiting lists were long, treatment was free. 

M/S must reimburse cost of hospital care in another M/S where adequate treatment cannot be provided within a reasonable period. R –v- Human Fertilisation Authority ex parte Blood [1997] All ER 687 UK woman was refused fertility treatment using her dead husband’s sperm – as he had not been able to give his consent under UK law.  She sought court order permitting her to take sample to another M/S for treatment.  Court of Appeal, held – without referring to CJ – refusal of permission would unreasonably restrict her Art.56 right to travel to receive medical services. See: Directive 2011/24 on Patients’ Rights in Cross-Border Health Care – makes provision for authorisation by home state.