All's Well That Bends Well? The Constitutional Dimension to the Services Directive

Abstract

Services Directive – Peculiar harmonisation technique – Unusual design – Key provisions giving rise to constitutional problems – Special derogation system – Freezing of the Rule of Reason – (In)compatibility with EU primary law – Appropriate legal basis? – Non–transposition by several member states – Arguments for a benign assessment of the Commission and the Court – Problematic enforcement in horizontal situations – Possible solutions and their shortcomings – Overall need for a flexible approach

The EU Services Directive: Law or Simply Policy?

“…21 The time for implementing the Services Directive was set at three years, which may be considered long when contrasted with the two years usually given to the Member States to implement directives. 18 See Barnard 2008, p. 371. 18 See Barnard 2008, p. 371.…”

“…In other words, the Union provides for the approximation of national laws of the Member States and exhaustively regulates a specific field, thereby pre-empting the national competence to take independent actions therein. 18 In Tedeschi, the question concerned Directive 74/63/EEC, 19 providing for approximation of the levels for undesirable substances and products in feeding stuff, whereby those levels had been totally harmonised. As concluded by the Court in Tedeschi, 16 the justifications set out in Article 36 TFEU, in relation to the free movement of goods are, [N]ot designed to reserve certain matters to the exclusive jurisdiction of Member States but permits national laws to derogate from the principle of the free movement of goods to the extent to which such derogation is and continues to be justified for the attainment of the objectives referred to in that Article.…”

“…18 Secondly, despite the fact that the Member States have retained the exclusive right to regulate their raising of financial resources, through the monetary union and Stability and Growth Pact they have been forced into a close cooperation regarding their finances, which strongly affects their economic policies. 18 Secondly, despite the fact that the Member States have retained the exclusive right to regulate their raising of financial resources, through the monetary union and Stability and Growth Pact they have been forced into a close cooperation regarding their finances, which strongly affects their economic policies.…”

“…Furthermore, decisional powers may be 11 In certain cases, negative effects may also occur for private persons who have relied on national law, which is not in conformity with Union law, see e.g., Case C-194/94, CIA Security International SA v. Signalson SA and Securitel SPRL [1996] ECR I-2201. 18 distributed from the central legislator to regional and local authorities and also to private entities under the control of the State or made responsible for state functions.…”

“…8 See the Final Report of the Mandelkern Group on Better Regulation 13 November 2001. 18 Successful implementation here within the meaning that the internal market for services in fact works, not only for the benefit of service providers, but also for recipients and the overall economic progress of the Union. 10 Hatzopoulos 2012, p. 332.…”