(post) Keck Case Law on the Freedom to Provide Services

services under Art 56 TFEU. The same principles govern restrictions of the freedom toprovide services. Again, neither a broad restriction test nor an independent market accesscriterion is needed. Finally, I will also discuss how the distinction between certain sellingarrangements and product requirements drawn in <strong>Keck</strong> can be assigned from goods toservices.1. ServicesBefore turning to this analysis, I will briefly discuss the scope of the Treaty provisions onservices in Art 56 and Art 57 TFEU. Art 57 TFEU states that services shall only beconsidered as services in the meaning of the Treaties insofar as they are not governed bythe provisions relating to the other freedoms. This wording suggests an order of prioritybetween the freedom to provide services and the other fundamental freedoms like the freemovement of goods. However, the Court of Justice clarified in Fidium Finanz 83 that Art 57TFEU merely relates to the definition of the notion of services and does not establish anysuch order of priority.What constitutes a service within the meaning of the Treaty? Art 57 (1) TFEU offersexamples of services including activities of craftsmen and activities of a commercialcharacter. 84 However, looking at the Court’s case law, the notion of services is widely83<strong>Case</strong> C-452/04, Fidium Finanz, [2006] ECR I-9521.84Some services are now governed by the Services Directive 2006/123/EC, [2006] OJ L376/36. For therelation between the Treaty and the Directive provisions see for example Barnard, “Unravelling theServices Directive”, 45 CML Rev. (2008), 323, especially at pp. 340 ff; case note to Cipolla by Stuyck,46 CML Rev. (2009), 941, at 953 ff.28