The Case Law of the ECJ concerning the Free Provision of Services : 2000 - 2005. Research Papers in Law, 2/2006

Introduction. The present overview covers the period starting from 2000 until the end of 2005.1 This is the follow-up to our overview covering the 1995-1999 period.2 The first striking feature of the present contribution is that it has to deal with almost 3,5 times as many cases as the previous one. Hence, the ECJ has gone from deciding 40 cases in the five year period between 1995- 1999 to deciding over 140 cases based on Art 49 between 2000-2005. This confirms, beyond any doubt, the tendency already observed in our previous overview, that a “third generation” case law on services is being developed at a very rapid pace by the ECJ. This third generation case law is based on the idea that Article 49 EC is not limited to striking down discriminatory measures but extends to the elimination of all hindrances to the free provision of services. This idea was first expressed in the Tourist Guide cases, the Greek and Dutch TV cases and most importantly in the Säger case.3 It has been confirmed ever since. As was to be expected, this broad brush approach of the Court’s has led to an ever-increasing amount of litigation reaching Luxemburg. It is clear that, if indicators were used to weight the importance of the Court’s case law during the relevant period, services would score much higher than goods, both from a quantitative and from a qualitative perspective.4 Hence, contrary to the previous overview, this one cannot deal in detail with any of the judgments delivered during the reference period. The aim of the present contribution is restricted to presenting the basic trends of the Court’s case law in the field of services Therefore, the analysis follows a fundamentally horizontal approach, fleetingly considering the facts of individual cases, with a view to identifying the conceptual premises of the Court’s approach to the free movement of services. Nonetheless, the substantial solutions adopted by the Court in some key topics, such as concession contracts, healthcare services, posted workers and gambling, are also presented as case studies. In this regard, the analysis is organized in four sections. First we explore the (ever expanding) scope of the freedom to provide services (Section 2), then we go on to identify the nature of the violations and of justifications thereto (Section 3), before carrying out some case studies to concretely illustrate the above (Section 4). Then, for the sake of completeness, we try to deduce the general principles running through the totality of the relevant case law (Section 5). Inevitably, some concluding remarks follow (Section 6).5

Legal Aspects in Establishing the Internal Market for services. Research Papers in Law, 6/2007

Introduction. 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 ten-fifteen years, however, that this aspect of the internal market has seriously attracted the attention of the EC legislature and judiciary.1 With the exception of some sector-specific directives dating back in the late ‘80s, it is only with the deregulation of network industries, the development of electronic communications and the spread of financial services, in the ‘90s that substantial bits of legislation got adopted in the field of services. Similarly, the European Court of Justice (ECJ, the Court) left the principles established in Van Binsbergen back in 1973, hibernate for a long time before fully applying them in Säger and constantly thereafter.2 Ever since, the Court’s case law in this field has grown so important that it has become 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 judiciary 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 at the legal level, 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. In view of the ever expanding application of the Treaty rules on services, promoted by the ECJ (para. 1),3 the Directive certainly appears to be a limited regulatory attempt (para. 2). This, however, does not mean that the Directive is a toothless, or useless regulatory instrument (conclusion: para. 3).

Analysing the Contribution of Business Services to European Economic Growth. Bruges European Economic Research (BEER) Papers 9/February 2007

The sector business services contributes directly and indirectly to aggregate economic growth in Europe. The direct contribution comes from the sector’s own dynamism. Though the business-services industry appears to be characterised by strong cyclical volatility, there was also a strong structural growth. Business services actually generated more than half of total net employment growth in the European Union since the second half of the 1990s. Apart from this direct growth contribution, the sector also contributed in an indirect way to economic growth by generating knowledge and productivity spill-overs for other industries. The knowledge role of business services is reflected in its employment characteristics. The business-services industry created spill-overs in three ways: original innovations, knowledge diffusion, and the reduction of human capital indivisibilities at firm level. The share of knowledge-intensive business services in the intermediate inputs of the total economy has risen sharply in the last decade. Firm-level scale diseconomies with regard to knowledge and skill inputs are reduced by external deliveries of such inputs, thereby exploiting positive external scale economies. The process goes along with an increasingly complex social division of labour between economic sectors. The European business-services industry itself is characterised by a relatively weak productivity growth. Does this contribute to growth stagnation tendencies à la the socalled “Baumol disease”? The paper argues that there is no reason to expect this as long as the productivity and growth spill-overs from business services to other sectors are large enough. Finally, the paper concludes by suggesting several policy elements that could boost the role of business services in European economic growth. This might to achieve some of the ambitious Lisbon goals with respect to employment, productivity and innovation.

The Digital Market for Local Services: A one-night stand for workers? An example from the on-demand economy. CEPS Special Report, No. 133/April 2016

This case study provides a snapshot of the dynamics in the digital market for locally provided personal services. Based on a case study for a Belgium platform with 14,113 identified workers and 9,459 posted tasks, the findings suggest that the current intermediation is inefficient. Only a limited share of the tasks posted on the platform are being completed, whereas the characteristics of the not-completed tasks are fairly limited. Moreover, just a small share of the workers participating in the platform is actually performing the completed tasks. Their average earnings per hour are in most cases above the minimum wage and even above the median wage in the offline market. At the present time, however, the limited earnings for individual workers prevent this mode of working from becoming an alternative to a conventional job. In addition to the standard determinants of workers’ earnings (e.g. gender, age, occupation, etc.), the characteristics and evaluation mechanism of the platform have a large influence on the distribution of tasks and earnings.