Assessing the Services Directive (2006/123/EC)

Abstract

The internal market for services is one of the objectives set by the founding fathers of the EC back in 1957. It is only in the last 10 to 15 years, however, that this aspect of the internal market has seriously attracted the attention of the EC legislature and judiciary. With the exception of some sector-specific directives dating back to the late 1980s, it was only with the deregulation of network industries, the development of electronic communications and the spread of financial services in the 1990s that substantial pieces of legislation were adopted in the field of services. Similarly, the European Court of Justice (hereinafter, ‘the ECJ’ or ‘the Court’) left the principles established in Van Binsbergen back in 1973 to hibernate for a long time before fully applying them in Säger and constantly thereafter. Ever since, the Court’s case law in this field has become so important that it is now the compulsory starting point for any study concerning the (horizontal) regulation of the internal market in services. The limits inherent to negative integration and to the casuistic approach pursued by judicial decisions have prompted the need for a general legislative text to be adopted for services in the internal market. This text, however, hotly debated both at the political and legal levels, has ended up in little more than a complex restatement of the Court’s case law. It may be, however, that this ‘little more’ is not that little.