Abstract
"Services constitute the engine of economic growth and account for 70% of GPD and employment in most Member States". This observation is the rationale behind the introduction of the Services Directive. Indeed, since 2006, the European Union has recognised that services represent the largest part of the economy.
Services can be defined as any "self-employed economic activity normally provided for remuneration" (Article 4 of the 2006 Directive). It is important to note that this definition is very broad. Consequently, the regulatory norms on services could apply to a wide range of activities: activities that differ significantly in their impact, scale and direct relation to the person providing this activity. This broad conception of "services", confronted with the requirements of the European Union's internal market, raises significant challenges. How can we guarantee the free movement of services, which necessitates a minimal regulatory framework at the national level, when the services are so diverse?
Extract
[...] The issue of labour regulation was then raised in the Laval case (2007). In light of the European Court of Justice case law, it was argued that the right to industrial action could amount to a barrier to the free movement of services. In this case, a Latvian-based company was awarded a contract in Sweden. However, in the absence of an agreement on workers' conditions in accordance with Swedish law, the company subjected their workers to the Latvian law, which was less protective. Consequently, the Swedish trade union initiated collective action, characterising this practice as social dumping. The Court of Justice ultimately ruled that the right to take action must be recognised as a fundamental right and is protected under European law against social dumping. However, the Court specified that the industrial action in question would amount to a restriction on the freedom to provide services if it were to lead to the objective of obtaining better conditions than those set out in the Directive on posted workers. [...]
[...] This decision was criticised because it brought uncertainty to the right to strike, which is a fundamental right. C. The unbreakable need for specific regulation Over the years, it has become evident that a general regulatory framework for services was inappropriate. For instance, some professions and industries are subject to extensive regulation in domestic law due to their involvement in highly specific sectors or their inherent risk. In such cases, it would be unreasonable to expect Member States to lower their standards and dismantle all barriers against interstate services provision and establishment. Thus, it is necessary to implement legal rules on the recognition of foreign qualifications or authorisation processes. The European Union's sole function must be to guarantee that the regulations do not impose excessive constraints and restrictions. To conclude, the European Union law on freedom of services' provision and establishment is struck between its aspirations of a large internal and unique market and the practical difficulties of implementation linked to the specific nature of each activity, which cannot alone be governed by business considerations and requires a strong domestic intervention. [...]
[...] However, after almost 20 years of application, the 2006 Directive is criticised for not having kept its promises. Firstly, the Directive begins with Article which lists the different services to which it does not apply, thus letting many sectors outside its scope. Then, it consecrates many exceptions to the free movement of services, thus reducing its interest. Finally, the directive is said to have a residual application. This means that if it conflicts with another European norm, the European law will have precedence. B. The marketisation of society One of the consequences of the enlargement of the service definition is that any activity can fall under its scope. [...]
[...] How EU law has tried to enhance the free movement of services ? What problems have arisen ? "Services constitute the engine of economic growth and account for 70% of GPD and employment in most Member States". This observation is the rationale behind the introduction of the Services Directive. Indeed, since 2006, the European Union has recognised that services represent the largest part of the economy. Services can be defined as any "self-employed economic activity normally provided for remuneration" (Article 4 of the 2006 Directive). It is important to note that this definition is very broad. Consequently, the regulatory norms on services could apply to a wide range of activities: activities that differ significantly in their impact, scale and direct relation to the person providing this activity. [...]
[...] In Walgrave, the European Court of Justice ruled that article 56 TFUE applies to bodies "as long as they are part of the regulation of an economic activity". However, when the Court is asked whether a traditionally untradeable activity shall be governed by the services provisions, the judges have ruled that it should be. They ruled in that sense for sport, labour regulation and public health services. Indeed, the Court has considered that with the liberalisation of the economy, the monetisation of various activities and the externalisation of many services by the States, the free establishment and provision of services shall be promoted in as many sectors as possible. Nevertheless, the broad application of provisions for the free movement of services raised several issues and criticisms. [...]
