The Court of Justice and the Free Provision of Services in the EU: Between Proportionality and Fundamental Rights

Sant'Anna Legal Studies (STALS) Research Paper No. 1/2012

19 Pages Posted: 5 Feb 2012 Last revised: 6 Feb 2012

See all articles by Giuseppe Bianco

Giuseppe Bianco

University of Oslo; Université Paris 1 Panthéon-Sorbonne

Tatum Ragues

Université Paris I Panthéon-Sorbonne

Date Written: February 2, 2012

Abstract

The definition of restrictions which EU Member States can adopt with respect to the free provision of services is a delicate question. The principal answers have been offered by the Court of Justice.

At the beginning, a large scope was given to the notion of restriction, thus facilitating the expansion of the free provision of services in the EU. The Court then admitted a host of justifications available to Member States. Both restrictions and justifications benefited from a broad interpretation by the Court. Thus, the latter’s focus shifted towards the evaluation of the proportionality of the measure taken by the State.

From a practical point of view, this evolution of the Court’s analysis could be explained by political factors. It wishes to overcome the difficulties which services liberalisation faces by paying more attention to States’ concerns.

From a legal point of view, the importance of proportionality in the Court’s reasoning shows the “constitutional” dimension of its function. This is evident when it has to conciliate State interests with those of the Union, and especially when this balancing process involves fundamental rights.

Note: Downloadable document is if French.

Keywords: Court of Justice, free provision of services, restrictions, proportionality, fundamental rights

Suggested Citation

Bianco, Giuseppe and Ragues, Tatum, The Court of Justice and the Free Provision of Services in the EU: Between Proportionality and Fundamental Rights (February 2, 2012). Sant'Anna Legal Studies (STALS) Research Paper No. 1/2012, Available at SSRN: https://ssrn.com/abstract=1998052 or http://dx.doi.org/10.2139/ssrn.1998052

Giuseppe Bianco (Contact Author)

University of Oslo ( email )

Karl Johansgate 47
Oslo, 0162
Norway

HOME PAGE: http://www.jus.uio.no/?vrtx=person-view&uid=guiseppb&lang=en

Université Paris 1 Panthéon-Sorbonne ( email )

12 Place du Panthéon
Paris, 75005
France

Tatum Ragues

Université Paris I Panthéon-Sorbonne ( email )

France

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