THE EU AND WTO LAW ON SEVICESPDF电子书下载

Chapter 1 Prologue&Johan W.van de Gronden 1

1 Introduction 1

2 Services in EU Law 1

3 Services in WTO Law 3

4 Objective and Structure of this book 3

Part Ⅰ The Services Directive and the Free Movement of Services in the EU 5

Chapter 2 The Services Directive: （Too） Great Expectations? An initial overview of the rights and obligations under the Services Directive&Simone Evans 7

1 Introduction 7

2 The Case Law on Free Movement of Services and Freedom of Establishment 8

3 The Main Provisions of the Services Directive 10

3.1 The Scope of the Services Directive 10

3.2 Free Movement of Services: Article 16 of the Services Directive 12

3.2.1 The Background of Article 16 of the Services Directive 12

3.2.2 The ‘Prohibition' Laid Down in Article 16 of the Services Directive 13

3.2.3 Other Prohibitions and Requirements 14

3.2.4 The Exceptions to the ‘Prohibition' of Article 16 15

3.2.5 A Country of Origin Principle by Backdoor Methods? 16

3.3 Freedom of Establishment: Article 9 of the Services Directive 17

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 Authorization 20

3.3.4 Selection in the Case of a Limited Number of Available Authorizations 20

4 The Institutional Provisions of the Services Directive 21

4.1 Administrative Simplification 21

4.1.1 Simplification of Procedures and Formalities 21

4.1.2 Points of Single Contact and Right to Information 22

4.2 Screening Obligation 23

4.2.1 Authorization Schemes and Requirements Regarding the Freedom of Establishment 23

4.2.2 Requirements Regarding the Free Movement of Services 24

4.3 Administrative Cooperation 25

5 The Implications of the Services Directive for the Member States 25

5.1 Transposition of the Services Directive into National Legislation 26

5.2 Practicalities in Regard of the Screening Obligations 27

6 Conclusion 28

Chapter 3 Free Movement of Services and the Services Directive: the Legitimacy of the Case Law&Jukka Snell 31

1 Introduction 31

2 Services Directive 32

3 The Impact on the Free Movement Case Law 35

4 The Legitimacy of Article 49 EC Case Law 40

5 Has The Court Reacted? 49

6 Conclusion 51

Chapter 4 Fundamental Rights and the Liberalization of Service Markets&Sacha Prechal 55

1 Introduction 55

2 Fundamental Rights and Treaty Freedoms 57

2.1 Some Cases 57

2.2 ...and Some Observations 61

3 An Intermezzo: Fundamental Rights in Internal Market Legislation 63

4 Constitutional Guarantees of ‘Public Service' in Competitive Service Markets 66

4.1 Access to Services of General Interest as an Emerging Fundamental Principle 67

4.2 Access to Services of General Interest as Citizenship Right 69

4.3 Consequences of the Constitutionalization 71

5 Finale 71

Chapter 5 The Effects of the Service Directive for Local and Regional Authorities&Bart Hessel 75

1 Introduction 75

2 Background Knowledge is Lacking in Most Cases 77

3 Complex Delimitation 78

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

5 Authorization Schemes for Establishment of Service Providers 80

6 Close Cooperation between the Various Levels of Government is Necessa 82

7 Many Points of Reference for the Services Directive Despite Deregulation 82

7.1 Selective Application 83

8 Far-reaching ‘Volunta' Harmonization becomes Inevitable 83

8.1 Harmonization for Purely Internal Cases 84

8.2 Harmonization Outside the Scope of the Directive 85

9 The Test of Proportionality Calls for a European Point of View 86

10 An Enormous Number of Autonomous Authorizations 87

11 Different Requirements for Different Service Providers 89

12 Uncertainties Regarding the Concept of Public Policy 90

13 The Broad Interpretation of the Relevant Freedoms 92

14 The New Rules on the Free Movement of Services 93

15 Conclusions 94

Chapter 6 The Services Directive and the Alleged Issue of Social Dumping&Frank Hendrickx 97

1 Introduction 97

2 The Outset of the Services Directive 98

2.1 Birth of the First Proposal 98

2.2 Broad Focus 99

2.3 Proposed Measures 99

3 The Pressure on Labour Law and Social Dumping 100

4 The Services Directive and Avoiding Social Dumping 101

4.1 The Country of Origin Principle 101

4.2 A Conflict between Two Concepts of Equal Treatment 102

4.3 The Country of Employment Principle 103

5 The Services Directive, the Preservation of the European Social Model and the Effect on National Labour Law 104

5.1 The Preservation of the European Social Model 105

5.2 The Effect on Labour Law 106

5.3 Weighing Out Trade Union Rights: Viking and Laval 109

5.3.1 The Viking Case 109

5.3.2 The Laval Case 112

5.3.3 Comments 115

6 Conclusions 116

Part Ⅱ Services of General Economic Interest 119

Chapter 7 Services of General Economic Interest in European Law: Solidarity embedded in the Economic Constitution&Stephan Wernicke 121

1 Introduction 121

2 The Economic Constitution 123

2.1 General Remarks 124

2.2 The Services Directive 127

2.3 The Lisbon Treaty - The Treaty on the Functioning of the EU 129

2.4 The Debate on the Framework Directive 131

3 The Jurisprudence of the Court 132

4 Conclusion 137

Chapter 8 Harmonization of Services of General Economic Interest: Where There's a Will There's a Way!&Sybe A.de Vries 139

1 Background 139

2 The Need for a Framework Directive on Services of General Economic Interest 140

2.1 Preliminary Remarks on Services of General （Economic） Interest 140

2.2 Background and Arguments Relating to a Framework Directive 141

2.2.1 Arguments in Favour of a Framework Directive 141

2.2.2 Arguments Contra the Adoption of a Framework Directive 143

3 The Legal Basis 144

3.1 Article 86（3） EC 145

3.2 Article 95 EC and the other Internal Market Legal Bases 146

3.2.1 The ‘Tobacco Cases' and the Scope of Atricle 95 EC 146

3.2.2 A Broad Conception of the Internal Market: No Liberalization But Harmonization as Exemplified by the Proposed Audiovisual Media Services Directive 149

3.3 Article 308 EC 151

3.4 Future Outlook: Towards a Specific Legal Basis for a Framework Directive on Services of General Economic Interest 152

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

4.1 General Principles and Obligations 154

4.2 Institutional Arrangements 157

5 Conclusion 157

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.Stergiou 159

1 Introduction 159

1.1 Outline 160

2 EU Public Procurement Law: A short Overview 160

3 The Evolution of Service Concessions: From a Concept to a Definition 162

3.1 1990-2004: In Search for Characteristics of Service Concessions 162

3.1.1 Introduction 162

3.1.2 Relevant Case-law 163

3.2 2004-2007: ‘Defining' Moments 165

4 The Development of the Transparency Principle in EU Public Procurement Law and its Repercussions for the Procurement Regime of Service Concessions 166

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

4.2 Commission Initiatives 168

4.3 The Further Development of the Transparency Obligation 170

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

5.1 Introduction 173

5.2 The Prohibition: Article 86（1） EC 174

5.3 The Exception: Article 86（2） EC; Definition of Services of General Economic Interest 175

5.4 Services of General Economic Interest & Service Concessions: A Comparison 176

6 Article 86（2） EC, Treaty Exceptions and Overriding Requirements of General Interest （Rule of Reason） as Possible Justifications for not Fulfilling the Transparency Obligation 178

6.1 Article 86（2） EC As a Justification for Infringing the Transparency Obligation 178

6.2 The Treaty Exceptions and Overriding Requirements of General Interest （Rule of Reason） as a Justification for Infringing the Transparency Obligation 180

6.2.1 Applicable Treaty Exceptions 180

6.2.2 Relevant Case-law 181

6.3 Clash of Justifications? 183

7 Conclusions 184

Part Ⅲ WTO Law, Services and General Interest 185

Chapter 10 Protecting a Shared Value of the Union in a Globalized World: Services of General Economic Interest and External Trade&Markus Krajewski 187

1 Introduction 187

2 External Competence 189

2.1 Services of General Economic Interest and the Common Commercial Policy 189

2.1.1 The ‘Services Saga' Begins: Opinion 1/94 190

2.1.2 Special Rules for Special Services: The Nice Treaty 191

2.1.3 Enabling Full Speed Trade Negotiations, but Maintaining an Emergency Break: The Constitution and the Treaty of Lisbon 193

2.2 Implied External Competences for Services of General Economic Interest 194

2.3 Conclusion: The EC Has an Exclusive External Competence for Most Services of General Economic Interest 197

3 Scope of International Trade Agreements 197

3.1 General Agreement on Tariffs and Trade 197

3.2 General Agreement on Trade in Services 198

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 Clause 202

3.3 Bilateral Agreements 203

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 Clause 205

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

4 Areas of Potential Conflict: Market Access and National Treatment 206

5 Specific Obligations 208

5.1 A Horizontal Limitation for Public Utilities 208

5.2 Sectoral Commitments in Postal, Educational, Health and Social and Environmental Services 210

6 Conclusion 212

Chapter 11 Services and Public Policy Regulation in WTO Law: The Example of the US-Gambling Case&Denise Prevost 215

1 Introduction 215

2 Overview of the GATS Disciplines 217

3 Interpretation of Schedules of Specific Commitments 221

4 Market Access Obligations 228

5 General Exceptions to GATS Obligations 233

6 Current Position Regarding the Implementation of the Rulings 240

7 Conclusion 242

Part Ⅳ Synthesis 247

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 Gronden 249

1 Introduction 249

1.1 Two Notions: Derogation and Obligation 251

1.2 Purpose of this Contribution 252

1.3 Set up of this Contribution 252

2 Services of General Economic Interest as Derogation 252

3 Services of General Economic Interest as Obligation 256

3.1 General Developments Concerning SGEI at EU Level 256

3.1.1 Pre-Treaty of Lisbon Developments 256

3.1.2 SGEI and the Treaty of Lisbon 260

3.2 Sector EU Legislation and SGEI 262

3.3 SGEI: From Derogation to Obligation 265

4 Complications: The Services Directive 266

4.1 General Remarks on the Relationship between the Services Directive and the SGEI 266

4.2 The Directive Provisions on Establishment and Free Movement in the Light of SGEI 268

4.2.1 The Directive Regime on the Free Movement of Services and SGEI 269

4.2.2 The Directive Regime on the Free Movement of Establishment and SGEI 271

5 Services of General Economic Interest at WTO Level 273

6 Concluding Remarks 275

Bibliography 281