The Court’s approach to services (2006-2012): From case law to case load?

Abstract

Undertheimpactoftheeconomicand legal developmentsofthe last years, an unprecedentedsurgeofservices' caseshavetransformedtheCourt'scaselawintocaseload. Sheernumberscombinewith strong diversity: cases touching upon crucial social issues, the delivery of welfare and the definition of citizenship, alternate with cases raising highly technical taxation issues and touching upon procedural specificities of public procurement or of copyright protection. Thearticle puts this case law into context and accounts for its input in the completion of the Internal Market. First, it explores the scope of the rules on services, the way they impinge upon the other EU fundamental freedoms, and the conditions under which they apply to private measures, as well as to purely internal situations; burden of proof issues are also important in this respect. Second, the interplay between the rules on services and other EU policy areas is discussed: fundamental rights, citizenship, services of general economic interest and migration rules either complement or antagonize with the rules on services. Third, the way in which this recent case law has affected essential regulatory means and concepts of the Internal Market, such as mutual recognition and proportionality, is presented. The conclusion drawn is that the increase and trivialization of the Court's case law on services has overstretched the judiciary's capacities in this area, thus calling for some sector-specific regulation; and with it, for fresh and/or alternative means of regulation.