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

technique for marketing and for contacting potential clients in other Member Statesconstitutes a restriction on the freedom to provide cross-border services. The situation inAlpine Investments can be described as a reverse mutual recognition. 123 It was the homeState that had to recognise a host State provision and not the other way round. 124 Thehome State provision prohibited the use of a marketing method not only on its ownterritory, but on the territory of the host State where individuals were contacted. 125Contrary to that, the host State itself allowed the practise of cold calling. The Courtdecided that the home State could not regulate the conditions of the provision of servicesbeyond the borders if its own jurisdiction. The home State had to recognise that it waslawful on the territory of the host State to use such marketing methods.Other cases concerned the imposition of additional requirements on the service provider.In Fidium Finanz 126 certain qualities of economic operators were required by the German<strong>Law</strong> on credit institutions to enter the German financial market. According to the Court,this constituted a prevention of market access and therefore a restriction under Art 56TFEU. The Court held that if the requirement of authorisation already constitutes arestriction on the freedom to provide services, the requirement of a permanent123Compare Körber, Grundfreiheiten und Privatrecht (Mohr Siebeck, 2004), p. 330.124Usually the host State has to recognise that a product was lawfully produced according to the productrequirement rules of the home State.125Compare the Opinion of A.G. Jacobs in <strong>Case</strong> C-384/93, Alpine Investments, [1995] ECR I-1141, paras.47, 48, 51-56, according to whom <strong>Keck</strong> wasn’t applicable in Alpine Investments, because there it wasthe exporting State that required compliance with its own rules of marketing not only for the provisionof services in its territory but also in the territory of other Member States.126<strong>Case</strong> C-452/04, Fidium Finanz, [2006] ECR I-9521.38