3 resultados para culturally relevant services

em Archive of European Integration


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The Action Plan on visas adopted during the recent EU-Ukraine summit is a success for Ukraine. It is the first time that Kyiv has succeeded in obtaining a definition of the conditions and criteria whose fulfilment will enable Ukraine to apply for the lifting of EU visas for its citizens. Ukraine's strong point has been its political will; the lifting of this visa regime has been a priority for all Ukrainian governments since 2005. Since Viktor Yanukovych became president, Ukraine has adopted or prepared key legal acts that brought it nearer to European standards in the area of border and migration management. One of Kyiv's strengths is also its relatively well reformed and efficiently managed border service. Moreover, illegal transit migration via Ukraine is decreasing, and fewer Ukrainians are trying to enter or stay in the EU illegally. Also, Kyiv has efficiently implemented the EU-Ukraine readmission agreement. The hardest task for Ukraine will be to meet the EU’s expectations concerning values, the condition of Ukrainian democracy, and the rule of law. Corruption remains the main barrier to Ukraine's development and modernisation; the courts are weak and the judicial system inefficient. The main undertaking of the new migration service that is being formed at the moment will be to create a civil system of registration, monitoring and regulating the stays of foreign nationals. This may prove difficult, as the supervisory authority (the Ministry of the Interior) remains an unreformed, police-type bureaucratic institution. Ukraine is lagging behind countries such as Russia, Belarus and Moldova when it comes to the introduction of biometric documents. Another problem is the lack of an electronic information system on foreign nationals, visas and border crossings which would be accessible to all the relevant services and institutions. For these reasons, the complete abolition of visas seems to be a longterm perspective, especially considering that many EU countries, which themselves are faced with the problem of migrants’ integration, are rather sceptical about the further liberalisation of movement of people with their eastern neighbours. In the immediate future, if Ukraine meets some of the requirements set by the EU, it will be able to seek the extension of the visa facilitations that have been in operation since 2008.

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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

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Introduction. It is quite uncommon to associate migration with the rules on services trade. Indeed, all economic definitions of services insist on their immaterial nature and on the increased possibility of trading them ‘virtually’ over networks or else, without any physical movement of the parties involved. Somehow this ‘immaterial’ nature of services reflects on their providers/recipients which seem to be ‘invisible’. Even though most services still require the physical contact of the provider with the recipient1 and, when provided over national borders, do entail migration, service providers and/or recipients are rarely thought of as ‘immigrants’. This may be due to the fact that they enter the foreign territory with a specific aim and, once this aim accomplished, move back to their state of origin; technically they only qualify as short term non-cyclical migrants and are of little interest to policy-makers. A second reason may be that both service providers and recipients are economically desirable: the former are typically highly skilled and trained professionals and the latter are well-off ‘visitors’, increasing consumption in the host state. The legal definition of services in Article 57 TFEU (ex Art. 50 EC) further nourishes this idea about service providers/recipients not being migrants: the relevant Treaty rules only apply when the provisions on free movement of workers and freedom of establishment – themselves clearly linked to migration – do not apply. This distinction has been fleshed up by the ECJ which has consistently held that the distinction between the rules on establishment, on the one hand, and the rules on services, on the other, lies on duration.2 Indeed, all EC manuals state four types of service provision falling under the EC Treaty: a) where the service provider moves to the recipient’s state, for a short period of time (longer stay would amount to establishment), b) where the service recipients themselves move to the state where the service is offered (eg for medical care, education, tourism etc), c) where both service providers and recipients move together in another member state (eg a tourist guide accompanying a group travelling abroad) and d) where the service itself is provided across the borders (typically through the use of ICTs). None of these situations would typically qualify as migration. The above ‘dissociation’ between services and migration has been gradually weakened in the recent years. Indeed, migration is increasingly connected to the transnational provision of services. This is the result of three kinds of factors: developments in the European Court of Justice’s (ECJ) case law; legislative initiatives in the EU; and the GATS. Each one of these is considered in some detail below. The aim of the analysis which follows is to show the extent to which (legislative and judicial) policies aimed at the free provision of services actively affect migration conditions within the EU. The EC rules on the provision of services primarily affect the movement of EU nationals. As it will be shown below, however, third country nationals (TCNs) may also claim the benefits of the rules on services, either as recipients thereof or as employees of some EC undertaking which is providing services in another member state (posted workers).