Variations on the mutual recognition and the Directive 2006/123/ CE in the framework of the provision of services.

Abstract

The principle of mutual recognition and country of origin, as they have been build and modulated by the Court of Luxembourg, continue to be a key factor in the accomplishment of the internal market of services. The elimination of barriers to the development of service activities between Member States is essential in order to strengthen integration and promote balanced and sustainable economic and social progress. Those barriers cannot be removed solely by relying on direct application of Article 49 of the Treaty, since, on the one hand, addressing them on a case-by-case basis through infringementprocedures would, especially following enlargement, be extremely complicated for national and Community institutions, and, on the other hand, the lifting of many barriers requires prior coordination of national legal schemes, including the setting up of administrative cooperation. Nevertheless, such principles cannot be understood in absolute terms in relation to the access and the activity of the service, devoted to the global competitiveness of the providers of services who circulate freely within the European Union. The maintenance of the European social model not only legitimizes but also justifies the action of the country of destination in the control and supervision of such activities in accordance with the administrative community principles of non-discrimination, necessity, equivalence and proportionality. Directive 2006/123/EC on services replies to this challenge and has appeared before public European opinion as a transactional solution between different ideological models relative to the functioning of the market. The terms of reference of the principle of country of origin (Bolkestein’s proposal) have been sacrificed in favour of the principle of free provision of services that codifies the case-law of the Court of Justice on the matter. Nevertheless, its essence is maintained and is reinforced by means of a necessary administrative simplification and the establishment of a flexible administrative cooperation.