Free Movement of Services, Problem and Essay Question Approach

European Union Internal Market Law
Tutorial Five: Free Movement of Services (Weeks 11 and 12)


The aim of this tutorial is to discuss the scope, effect and the limitations of the freedom to
provide and receive cross-border services (Articles 56 – 62 TFEU).
Essential Reading:
Morano-Foadi, Neller, Fairhurst’s Law of the European Union, (Pearson Education Ltd.,)
Chapter 11 431-486 or
Chambers, Davies and Monti, European Union Law (4th ed., Cambridge University Press)
Chapter 17, pp.734-778, or
Barnard, The Substantive Law of the EU: The Four Freedoms, (6 th ed., Oxford University
Press) Chapter 8, pp. 285-317
Case C-293/14 Hiebler v Schlagbauer


Additional Reading:
Barnard, ‘Unravelling the Services Directive’ (2008) 41 Common Market Law Review 323
Hatzopoulos, ‘The Court’s Approach to Services (2006-2012): From Case Law to Case
Load? (2013) 50 Common Market Law Review 459


Case Law:
Case 33/74 Van Binsbergen
Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro
Case C-43/93 Van der Elst v OMI
Case C-60/00 Carpenter v Secretary of State for the Home Department
Case C-341/02 Commission v Germany
Case C-404/05 Commission v Germany
Case C-348/05 Viking Lines
Case C-341/05 Laval

, Introductory Questions:

1. What is a ‘service’ and how does it differ to establishment?
- overlap seen between Art 56 TFEU in regards to temporary provision and
permanent establishment in Article 49 TFEU
- C-55/94 Gebhard
o The concept of establishment is a broad one allowing (on EU citizen) to
participate on a continuous and stable basis in the host state’s economy
and profit therefore in the sphere as a self-employed person
o In contrast, where the provider of services moves to another Member
State, the provisions of the chapter on services as stated on Article 57
TFEU that is to pursue this activity on a temporary basis
o Temporary nature of services – determined in light of situation regularity,
periodicity, and continuity
 Can be quite substainal
 Meeting of treaty can equip himself or help in the infrastructure in
performing the services
 Right of establish n not services
- Art 57 TFEU – definition of services
- Commercial character, craftsmen, activities of profession
- Luisi and Carbone 286/82, 26/83


2. To what extent can free movement of services be regarded a ‘residual’ freedom?
- Case 205/84 Commission v Germany (Insurance)
o Distinctly applicable measures
o Cannot required someone to be resident in that state in order to provide the
service
- Directives 2006/123/EC,
o Member states must ensure that the recipient is not subject to
discriminatory requirements based on nationality or residence
- In addition
- Art 57 TFEU – where does it fits
- Definition excludes anything which may be covered by any one of the freedoms,
so in that sense could be considered as a residual freedom

3. Explain the key aspects of the 2006 Services Directive.
- To ease freedom of establishment and the freedom to provide services
- To strengthen the rights of recipients of services
- To promote the quality of services
- To establish administrative cooperation between Member States
- Art 5 – simplification of administration requirements applicable to access service
o EU tried to enforce these administrative requirements to provide a service
to avoid hinderance and obstacles to the service
o Introduce harmonise form on community level
- Art 9 -Art 15 – establishment
- Art 16 – country of origin principles and requirements imposed on temporary
service provides and justification