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

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lawfully provides similar services.” 99In subsequent cases like Arblade 100 the Court continued to use this restriction approach butwith a slightly altered formula that referred to a restriction which is liable to “prohibit,impede or render less advantageous” the activities of a service provider. 101 Sometimes theCourt will also refer to “measures which prohibit, impede or render less attractive theexercise of” the freedom to provide services. 102 The restriction-test applies to allindistinctly applicable measures and consists of two parts. The first part defines the notionof restriction in the meaning of Art 56 TFEU, which is reminiscent of the broad definitionin Dassonville. 103 The second part refers to the lawful provision of (similar) services in thehome State of the service provider.The second part of the test makes a reference to the home State law of the serviceprovider. 104 This mimics the Cassis approach of mutual recognition which is based on thelawful production of a good in the home State of the trader. This was already argued by99<strong>Case</strong> C-76/90, Säger, [1991] ECR I-4421, para 12.100Joined <strong>Case</strong>s C-369 & 376/96, Arblade, [1999] ECR I-8453; see also <strong>Case</strong>s C-165/98, Mazzoleni andISA, [2001] ECR I-2189, para 22; C-49/98, Finalarte, [2001] ECR I-7831, paras. 22-23 and recently C-515/08, Santos Palhota, nyr.101See for example Joined <strong>Case</strong>s C-369 & 376/96, Arblade, [1999] ECR I-8453, para 33.102For example <strong>Case</strong> C-500/06, Corporación Dermoestética, [2008] ECR I-5785, para 32.103Analysed in more detail below in C.3.3.2 (a).104Note the discussion with regard to the home State principle in context of the Services Directive. See forexample Barnard, 45 CML Rev. (2008), pp. 328 ff.32
A.G. Jacobs in his opinion in Säger. 105 He remarked that the State where the serviceprovider is established should as a general rule be the sole regulator of the provision ofservices. The service provider should not be obliged to comply with all the detailedregulations in force in each of those other Member States where he intends to provide hisservices. A.G. Jacobs therefore suggested treating services by analogy with goods. Nondiscriminatoryrestrictions on the free movement of services should be approached underthe Cassis line of case law. This view was, for example, supported by A.G. Maduro, whostated that the Court has, since Säger, adopted a test similar to the wide interpretation ofCassis. 106The principle of mutual recognition in the area of service means that the service provideris able to provide services in another Member State if he lawfully provides them in hishome State. In Säger the Court decided that Germany could not reserve the provision ofservices for monitoring and renewing patents to persons holding a special professionalqualification. Germany had to recognise that the foreign company lawfully offered suchmonitoring services in its home State. By offering those services in Germany, as well, thecompany made use of its freedom to provide the same services everywhere in the territoryof the Union. The imposition of additional requirements regarding the professionalqualifications of the service provider constituted a restriction of that freedom. 107 Similarly,105Opinion of A.G. Jacobs in <strong>Case</strong> C-76/90, Säger, [1991] ECR I-4421, paras. 23 ff.106Maduro in Andenas/Roth, p. 60; Roth in Andenas/Roth, p. 3.107<strong>Case</strong> C-76/90, Säger, [1991] ECR I-4421, paras. 13 f.33
Page 1 and 2: The Influence of the (post<
Page 3 and 4: A. IntroductionRestrictions of the
Page 5 and 6: criteria. Finally, it will be demon
Page 7 and 8: mandatory requirements, also known
Page 9 and 10: in academic literature. 22 These de
Page 11 and 12: find a breach of Art 34 TFEU. Altho
Page 13 and 14: appropriate restriction test is the
Page 15 and 16: products. Consumers were more likel
Page 17 and 18: principle of mutual recognition est
Page 19 and 20: product. However, this argument is
Page 21 and 22: to the Court those are: first, meas
Page 23 and 24: context of very specific use restri
Page 25 and 26: that the Court followed a de minimi
Page 27 and 28: encourage the unhindered pursuit of
Page 29 and 30: At first sight, it seems that the C
Page 31 and 32: understood. It includes lotteries 8
Page 33: meaning of the case law is not enti
Page 37 and 38: In its case law 112 the Court clari
Page 39 and 40: As already shown above, the Court f
Page 41 and 42: establishment does so even more. 12
Page 43 and 44: itself. 135 This equals a product r
Page 45 and 46: services. 141With regard to service
Page 47 and 48: 3.1 Service RequirementsAdditional
Page 49 and 50: equivalent to “certain selling ar
Page 51 and 52: of goods, it will also have to limi
Page 53 and 54: marketing method, because it only a
Page 55 and 56: selling arrangements. 173In Delièg
Page 57 and 58: Directive. 180 Art 4 (1) of the Dir
Page 59 and 60: services will face similar difficul
Page 61 and 62: However, such difficulties in findi
Page 63 and 64: outside the scope of Art 56 TFEU. T
Page 65 and 66: • Case C-169/91,
Page 67 and 68: • Joined Cases C
Page 69 and 70: Media, [2008] ECR I-5785• <strong
Page 71 and 72: • M. P. Maduro, “The Saga of Ar
Page 73 and 74: Case Notes• G. C
Page 75: Written work that has been submitte

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