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

in Schindler 108 a German public body organising lotteries sent advertisements andapplication forms to the UK. It was prosecuted for breach of the national ban on lotteriesbecause it invited people from the UK to participate in the German lottery. The Courtdecided that Germany had to recognise that the service itself was lawfully provided in theUK and could therefore be provided in other Member States as well. In Gouda 109 , theCourt stated that restrictions may arise as a result of indistinctly applicable national rules,when service providers established in the territory of another Member State already had tosatisfy the requirements of that State’s legislation. In Webb, the Court stated that there isan obligation on the State to “take into account the evidence and guarantees alreadyfurnished by the provider of the services for the pursuit of his activities in the MemberState of his establishment”. 1102.2 Discriminatory MeasuresAs noted above, Art 57 TFEU makes an express reference to the principle of nondiscriminationon grounds of nationality. Equally to Art 34 TFEU it is undisputed that Art56 and Art 57 TFEU do not only prohibit direct but also indirect discrimination. A measureis indirectly discriminatory when it is equally applicable to foreign and domestic serviceproviders but has an unequal effect on them. 111108<strong>Case</strong> C-275/92, Schindler, [1994] ECR I-1039, paras. 43 f.109<strong>Case</strong> C-288/89, Gouda, [1991] ECR I-4007, para 12.110<strong>Case</strong> 279/80, Webb, [1981] ECR 3305, para 20.111See for example Roth in Andenas/Roth, pp. 10 f; Chalmer/Davies/Monti, European Union <strong>Law</strong>, p. 792.34