Way to go? - More on the Services Directive and the Fundamental Freedoms

The Services Directive 2006/123/EC submits both the free movement of services and the freedom of establishment to a new statutory regime. Far from being a mere codification of the regime on established and non-established services and service providers developed by the Court, it brings some important changes to the law in this area. Most apparently, the central Article 16 Services Directive curtails the reasons of justifications Member States may invoke to defend national measures. It is argued that the Services Directive should not be read to introduce to the services regime the equivalent of the distinction between selling arrangements and products requirements known from the free movement of goods. Rather, for the first time, some national measures seem to be expressly excluded from the scope of the freedoms. The legality of the Services Directive has been discussed controversially, mainly on account of Article 16. It is submitted that it is the Directive's compliance with its legal basis of Article 47 EC which is decisive and that such conformity is doubtful. The Directive does not function in the same way as other harmonization measures since it fails to provide the substance required to deprive Member States of the possibility to justify their national laws. The Services Directive regulates in an area of law where the jurisprudence of the Court continues to be inconsistent. This is the case with the regime on mandatory requirements and derogations for the justification of restrictions and discriminations. It is shown that especially Article 16 Services Directive provides the Court with an option to either consolidate the case law or introduce further fragmentation. It is unclear whether the Services Directive is the complete regulation on indirect discriminations within its scope of application or whether the Treaty regime will apply beside of it.