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Chapter 1 Prologue&Johan W.van de Gronden1

1 Introduction1

2 Services in EU Law1

3 Services in WTO Law3

4 Objective and Structure of this book3

Part Ⅰ The Services Directive and the Free Movement of Services in the EU5

Chapter 2 The Services Directive: （Too） Great Expectations? An initial overview of the rights and obligations under the Services Directive&Simone Evans7

1 Introduction7

2 The Case Law on Free Movement of Services and Freedom of Establishment8

3 The Main Provisions of the Services Directive10

3.1 The Scope of the Services Directive10

3.2 Free Movement of Services: Article 16 of the Services Directive12

3.2.1 The Background of Article 16 of the Services Directive12

3.2.2 The ‘Prohibition' Laid Down in Article 16 of the Services Directive13

3.2.3 Other Prohibitions and Requirements14

3.2.4 The Exceptions to the ‘Prohibition' of Article 1615

3.2.5 A Country of Origin Principle by Backdoor Methods?16

3.3 Freedom of Establishment: Article 9 of the Services Directive17

3.3.1 The Prohibition of Article 9（1）18

3.3.2 The Exceptions to the Prohibition of Article 9（1）18

3.3.3 Conditions for the Granting of Authorization20

3.3.4 Selection in the Case of a Limited Number of Available Authorizations20

4 The Institutional Provisions of the Services Directive21

4.1 Administrative Simplification21

4.1.1 Simplification of Procedures and Formalities21

4.1.2 Points of Single Contact and Right to Information22

4.2 Screening Obligation23

4.2.1 Authorization Schemes and Requirements Regarding the Freedom of Establishment23

4.2.2 Requirements Regarding the Free Movement of Services24

4.3 Administrative Cooperation25

5 The Implications of the Services Directive for the Member States25

5.1 Transposition of the Services Directive into National Legislation26

5.2 Practicalities in Regard of the Screening Obligations27

6 Conclusion28

Chapter 3 Free Movement of Services and the Services Directive: the Legitimacy of the Case Law&Jukka Snell31

1 Introduction31

2 Services Directive32

3 The Impact on the Free Movement Case Law35

4 The Legitimacy of Article 49 EC Case Law40

5 Has The Court Reacted?49

6 Conclusion51

Chapter 4 Fundamental Rights and the Liberalization of Service Markets&Sacha Prechal55

1 Introduction55

2 Fundamental Rights and Treaty Freedoms57

2.1 Some Cases57

2.2 ...and Some Observations61

3 An Intermezzo: Fundamental Rights in Internal Market Legislation63

4 Constitutional Guarantees of ‘Public Service' in Competitive Service Markets66

4.1 Access to Services of General Interest as an Emerging Fundamental Principle67

4.2 Access to Services of General Interest as Citizenship Right69

4.3 Consequences of the Constitutionalization71

5 Finale71

Chapter 5 The Effects of the Service Directive for Local and Regional Authorities&Bart Hessel75

1 Introduction75

2 Background Knowledge is Lacking in Most Cases77

3 Complex Delimitation78

4 Administrative Simplification and ‘One-Stop-Shop'79

5 Authorization Schemes for Establishment of Service Providers80

6 Close Cooperation between the Various Levels of Government is Necessa82

7 Many Points of Reference for the Services Directive Despite Deregulation82

7.1 Selective Application83

8 Far-reaching ‘Volunta' Harmonization becomes Inevitable83

8.1 Harmonization for Purely Internal Cases84

8.2 Harmonization Outside the Scope of the Directive85

9 The Test of Proportionality Calls for a European Point of View86

10 An Enormous Number of Autonomous Authorizations87

11 Different Requirements for Different Service Providers89

12 Uncertainties Regarding the Concept of Public Policy90

13 The Broad Interpretation of the Relevant Freedoms92

14 The New Rules on the Free Movement of Services93

15 Conclusions94

Chapter 6 The Services Directive and the Alleged Issue of Social Dumping&Frank Hendrickx97

1 Introduction97

2 The Outset of the Services Directive98

2.1 Birth of the First Proposal98

2.2 Broad Focus99

2.3 Proposed Measures99

3 The Pressure on Labour Law and Social Dumping100

4 The Services Directive and Avoiding Social Dumping101

4.1 The Country of Origin Principle101

4.2 A Conflict between Two Concepts of Equal Treatment102

4.3 The Country of Employment Principle103

5 The Services Directive, the Preservation of the European Social Model and the Effect on National Labour Law104

5.1 The Preservation of the European Social Model105

5.2 The Effect on Labour Law106

5.3 Weighing Out Trade Union Rights: Viking and Laval109

5.3.1 The Viking Case109

5.3.2 The Laval Case112

5.3.3 Comments115

6 Conclusions116

Part Ⅱ Services of General Economic Interest119

Chapter 7 Services of General Economic Interest in European Law: Solidarity embedded in the Economic Constitution&Stephan Wernicke121

1 Introduction121

2 The Economic Constitution123

2.1 General Remarks124

2.2 The Services Directive127

2.3 The Lisbon Treaty - The Treaty on the Functioning of the EU129

2.4 The Debate on the Framework Directive131

3 The Jurisprudence of the Court132

4 Conclusion137

Chapter 8 Harmonization of Services of General Economic Interest: Where There's a Will There's a Way!&Sybe A.de Vries139

1 Background139

2 The Need for a Framework Directive on Services of General Economic Interest140

2.1 Preliminary Remarks on Services of General （Economic） Interest140

2.2 Background and Arguments Relating to a Framework Directive141

2.2.1 Arguments in Favour of a Framework Directive141

2.2.2 Arguments Contra the Adoption of a Framework Directive143

3 The Legal Basis144

3.1 Article 86（3） EC145

3.2 Article 95 EC and the other Internal Market Legal Bases146

3.2.1 The ‘Tobacco Cases' and the Scope of Atricle 95 EC146

3.2.2 A Broad Conception of the Internal Market: No Liberalization But Harmonization as Exemplified by the Proposed Audiovisual Media Services Directive149

3.3 Article 308 EC151

3.4 Future Outlook: Towards a Specific Legal Basis for a Framework Directive on Services of General Economic Interest152

4 Which Principles and Obligations should be Incorporated in the Directive?154

4.1 General Principles and Obligations154

4.2 Institutional Arrangements157

5 Conclusion157

Chapter 9 The Increasing Influence of Primary EU Law and EU Public Procurement Law: Must a Concession to Provide Services of General Economic Interest be Tendered?&Helene M.Stergiou159

1 Introduction159

1.1 Outline160

2 EU Public Procurement Law: A short Overview160

3 The Evolution of Service Concessions: From a Concept to a Definition162

3.1 1990-2004: In Search for Characteristics of Service Concessions162

3.1.1 Introduction162

3.1.2 Relevant Case-law163

3.2 2004-2007: ‘Defining' Moments165

4 The Development of the Transparency Principle in EU Public Procurement Law and its Repercussions for the Procurement Regime of Service Concessions166

4.1 Obligation of Transparency According to the ECJ: ‘A Sufficient Degree of Advertising'167

4.2 Commission Initiatives168

4.3 The Further Development of the Transparency Obligation170

5 Article 86（2） EC and Service Concessions: Part of the Same EU Legal Family or Just Acquaintances?173

5.1 Introduction173

5.2 The Prohibition: Article 86（1） EC174

5.3 The Exception: Article 86（2） EC; Definition of Services of General Economic Interest175

5.4 Services of General Economic Interest & Service Concessions: A Comparison176

6 Article 86（2） EC, Treaty Exceptions and Overriding Requirements of General Interest （Rule of Reason） as Possible Justifications for not Fulfilling the Transparency Obligation178

6.1 Article 86（2） EC As a Justification for Infringing the Transparency Obligation178

6.2 The Treaty Exceptions and Overriding Requirements of General Interest （Rule of Reason） as a Justification for Infringing the Transparency Obligation180

6.2.1 Applicable Treaty Exceptions180

6.2.2 Relevant Case-law181

6.3 Clash of Justifications?183

7 Conclusions184

Part Ⅲ WTO Law, Services and General Interest185

Chapter 10 Protecting a Shared Value of the Union in a Globalized World: Services of General Economic Interest and External Trade&Markus Krajewski187

1 Introduction187

2 External Competence189

2.1 Services of General Economic Interest and the Common Commercial Policy189

2.1.1 The ‘Services Saga' Begins: Opinion 1/94190

2.1.2 Special Rules for Special Services: The Nice Treaty191

2.1.3 Enabling Full Speed Trade Negotiations, but Maintaining an Emergency Break: The Constitution and the Treaty of Lisbon193

2.2 Implied External Competences for Services of General Economic Interest194

2.3 Conclusion: The EC Has an Exclusive External Competence for Most Services of General Economic Interest197

3 Scope of International Trade Agreements197

3.1 General Agreement on Tariffs and Trade197

3.2 General Agreement on Trade in Services198

3.2.1 The Exception Clause: ‘Any Service Which is Supplied...'198

3.2.2 ‘...Neither on a Commercial Basis...'199

3.2.3 ‘...Nor in Competition with One or More Service Suppliers'201

3.2.4 A Narrow Exception Clause202

3.3 Bilateral Agreements203

3.3.1 The Exception Clause: ‘Activities Connected with...'203

3.3.2 ‘...The Exercise of Official Authority'204

3.3.3 Another Narrow Exception Clause205

3.4 Conclusion: Services of General Economic Interest are ‘In'206

4 Areas of Potential Conflict: Market Access and National Treatment206

5 Specific Obligations208

5.1 A Horizontal Limitation for Public Utilities208

5.2 Sectoral Commitments in Postal, Educational, Health and Social and Environmental Services210

6 Conclusion212

Chapter 11 Services and Public Policy Regulation in WTO Law: The Example of the US-Gambling Case&Denise Prevost215

1 Introduction215

2 Overview of the GATS Disciplines217

3 Interpretation of Schedules of Specific Commitments221

4 Market Access Obligations228

5 General Exceptions to GATS Obligations233

6 Current Position Regarding the Implementation of the Rulings240

7 Conclusion242

Part Ⅳ Synthesis247

Chapter 12 The EU and WTO law on Free Trade in Services and the Public Interest: Towards a Framework Directive on Services of General Economic Interest?&Johan W van de Gronden249

1 Introduction249

1.1 Two Notions: Derogation and Obligation251

1.2 Purpose of this Contribution252

1.3 Set up of this Contribution252

2 Services of General Economic Interest as Derogation252

3 Services of General Economic Interest as Obligation256

3.1 General Developments Concerning SGEI at EU Level256

3.1.1 Pre-Treaty of Lisbon Developments256

3.1.2 SGEI and the Treaty of Lisbon260

3.2 Sector EU Legislation and SGEI262

3.3 SGEI: From Derogation to Obligation265

4 Complications: The Services Directive266

4.1 General Remarks on the Relationship between the Services Directive and the SGEI266

4.2 The Directive Provisions on Establishment and Free Movement in the Light of SGEI268

4.2.1 The Directive Regime on the Free Movement of Services and SGEI269

4.2.2 The Directive Regime on the Free Movement of Establishment and SGEI271

5 Services of General Economic Interest at WTO Level273

6 Concluding Remarks275

Bibliography281