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

These requirements, such as authorisation, swearing an oath or registration, infringe on theprinciple of mutual recognition. The economic actor lawfully provides services in hishome State. The host State has to recognise this and is not allowed to make him complywith an additional set of rules.Recently in Commission v. Italy (motor insurance) 132 Italian law required all insurancecompanies to offer third-party liability motor insurance. The companies were obliged tooffer insurance to any potential customer under terms and rates the company had topublish in advance. Moreover, the freedom of the companies to set their premiums waslimited by the law as well. The Court decided that the law constituted a restriction of thefreedom of establishment and to provide services, because a foreign insurance companywould be required to re-think its business strategy which could result in significantadditional costs. 133 The obligation to contract renders access to the Italian market lessattractive and, if they obtain access to that market, reduces the ability of the undertakingsconcerned to compete effectively against undertakings traditionally established in Italy.Again, the use of the market access criterion case can be returned to the principle ofmutual recognition. 134 The terms of the insurance contract which concern the riskassessment and calculation of the premium should be regarded as the service or “product”132<strong>Case</strong> C-518/06, Commission v. Italy (motor insurance), [2009] ECR I-3491.133Ibid., paras. 68 ff. Nevertheless the restriction could be justified by the aim of social protection forvictims of road traffic accidents.134But see also ibid., para 70. The Court seems to refer to a non-discrimination test, because it comparedtraditionally established undertakings to undertakings from outside, which could be interpreted as acomparison between traditional, mostly domestic, and new, mostly foreign, undertakings.40