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

To sum up, the Court’s case law on services which mentions market access as a criterionfor a restriction under Art 56 TFEU can be either based on the principle of mutualrecognition or non-discrimination. This leads to the same conclusion as under Art 34TFEU. Market access is not a separate principle or criterion, but rather the aim of the twounderlying principles. Thus the Court follows a uniform restriction test under Art 34 andArt 56 TFEU.3. Product Requirements and Selling Arrangements for ServicesAs we have seen above, the restriction regime under Art 56 TFEU follows the sameprinciples as the one under Art 34 TFEU. Consequentially, it should be asked whether theparallel treatment can be even further extended and an equivalent distinction betweencertain selling arrangements and product requirements can be found in the field ofservices. The question essentially is whether there are, on the one hand, requirements forthe provision of services which generally constitute a restriction under Art 56 TFEU and,on the other hand, a type of measure which generally falls outside the scope of Art 56TFEU? I will argue that the case law of the Court shows that there are such requirementsfor the provision of services. Moreover, there is a need for the limitation of the restrictiontest under Säger, because the aim Art 56 TFEU is only to liberalise intra-Union trade.Thus, certain rules on the arrangement for the provision of services do not in generalrestrict the freedom to provide services. Indeed, this has already been acknowledged bythe Court.44