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

etween Member States. Also, in Commission v. Belgium (construction sector) one of theunderlying thoughts seemed to be discriminatory treatment. A.G. Tizzano argued that:“It cannot be ruled out, and even the Commission does not, in theory, exclude this,that, although the rules at issue appear to apply without discrimination, they are infact discriminatory. (…) Unregistered operators will, in effect, be (almost)exclusively foreign operators, and, in particular, those wishing to provide servicesin Belgium only on an occasional basis, whereas national operators will be(almost) always registered as contractors as they have to meet that requirementspecifically in order to be able to pursue their activities in Belgium.” 138The focus on discrimination with regard to market access can also be found in casesdealing with advertising prohibitions. Restrictions of advertising are generally consideredto be selling arrangements. 139 Nevertheless, the Court will find a breach of Art 34 or Art56 TFEU, if the prohibition has the effect of treating products or services from anotherMember State less favourably. Because advertising is an effective means of penetrating aforeign market and of competing with established and well known domestic products, theCourt has shown its willingness to find a discriminatory treatment. This had primarilybeen the case in decisions more closely related to goods 140 , but recently also in the field of138Opinion in <strong>Case</strong> C-433/04, Commission v. Belgium (construction sector), [2006] ECR I-10653, para 36.139However, the Unfair Commercial Practices Directive 2005/29/EC, [2005] OJ L149/22 harmonisedcertain aspects of advertising concerning comparative and misleading advertising.140<strong>Case</strong> C-412/93, Leclerc-Siplec, [1995] ECR I-179; the freedom to provide services was not discussedbecause of the lack of a cross-border element, see to that the case note of Idot, 33 CML Rev. (1996),42