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

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