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

free movement of goods or freedom to provide services which should take priority,because the two aspects are often intimately linked. 4 As A.G. Jacobs pointed out in Säger,it is sometimes even difficult to distinguish between goods and services. An educationalservice could for example be provided by sending books or video-cassettes to a recipientin another Member State. In this situation there are both reasons to deal with this situationunder Art 34 TFEU, as well as under Art 56 TFEU. 5 Sometimes a differentiation becomeseven more elusive. In situations where only the service itself moves – for example bycable or through the internet – the only difference to the sale of goods is the immaterialnature of the offered service in contrast to the material nature of the good. 6 Because of thisclose relation between goods and services, a different treatment of restrictions accordingto the choice of legal basis would seem arbitrary in many cases.In this paper, I will analyse the relationship between restrictions of the free movement ofgoods and the freedom to provide services; Is there a uniform restriction approach underArt 34 and Art 56 TFEU, and can the <strong>Keck</strong>-distinction between product requirements andcertain selling arrangements be transposed into the field of services? I argue that bothrestriction-tests are based on the same principles of mutual recognition and nondiscrimination.Further, there is no need for a separate principle of market access becausemarket access is the aim of the restriction test rather than an independent restriction4<strong>Case</strong> C-390/99, Canal Satélite Digital, [2002] ECR I-607, para 32.5Opinion of A.G. Jacobs in <strong>Case</strong> C-76/90, Säger, [1991] ECR I-4421, paras. 24 ff.6Snell/Andenas, “Exploring the Outer Limits: Restrictions on the Free Movement of Goods andServices” in Andenas/Roth (Eds.), Services and Free Movement in EU <strong>Law</strong> (OUP, 2002), p. 69, at p. 79.2