L'accès au marché des services réglementés: la libéralisation du commerce des services dans le cadre du traité ce

Paul Demaret

Revue internationale de droit économique, 2002, vol. t. XVI, issue 2, 259-291

Abstract: The paper deals with the liberalization of trade in services in the context of the European internal market. Are examined in turn the methods provided by the EC Treaty for that purpose (2) ; the definition of services (3) ; the beneficiaries of the freedom to supply services (4) ; the concept of obstacle to trade in services as compared to the concept of obstacle to trade in goods under the case law of the European Court of Justice (5) ; the grounds on which obstacles to trade in services can be justified as compared to the grounds on which obstacles to trade in goods can be justified (6) ; the concept of obstacle to the freedom of establishment as compared to the concept of obstacle to trade in services, the case law relating to the circumvention of national rules through the supply of services from abroad and the question of whether the freedom to provide services leads to competition between national rules (7) ; some salient features of Community legislation in the field of services, most notably the technique known as the « European passport » (8). The notion of obstacle to trade in services is more broadly construed by the European Court of Justice than the notion of obstacle to trade in goods. However, the author argues that, overall, the prohibition of obstacles to trade in services is not more rigorously applied than the prohibition of obstacles to trade in goods once one considers the concrete outcome of ECJ judgments in the field of services. Indeed, in areas of a sensitive nature, the ECJ takes a rather liberal attitude as regards justifications. It follows that, in practice, the ECJ case law in the field of services has not significantly fostered competition between national rules. Community legislation that relies on the ?European passport? technique does introduce a degree of competition between national rules in some services sectors, but usually in a rather controlled environment except for certain specific pieces of legislation. The paper concludes that it would be worth assessing in a systematic manner the extent to which Community law relating to the internal market has or has not resulted in creating competition between national rules. Conversely, it would be equally interesting to analyze the extent to which competition between national rules occurs ? and the ensuing consequences ? in those areas of the internal market which Community law has left untouched.

Date: 2002
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