Revista de Derecho Político (Apr 2020)
Liberalization of cross-border services in the European Union Law
Abstract
Summary I. Liberalization of services. II. Case of Matteo Peralta 1. Applicable Legislation 2. Situation of domestic law 3. Freedom of services 4. Flag discrimination. 5. Restrictions on services 6. Freedom of establishment. 7. Measures of equivalent effect 8. Free competition. III. Case of Alpine Investments. 1. Scope of services. 2. Restriction of origin 3. Jurisprudence Keck and Mithouard 4. Justification of the restriction 5. Need for the measure IV. Conclusions. Bibliography. Abstract The study addresses the methodology conceptual system and argumentative structure used by the European Union Court in the analysis of the liberalization or free provision of cross-border services between Member States, which puts the host State and the provider's State of origin into play. The conditions of the principle of equal treatment or national treatment are specified and the scenario of the proportionality principle is studied. Judicial review of the freedom to provide services implies a trial of equalization in treatment, which follows the methodological pattern of a trial of equality: it brings the requirement of equivalence in treatment (liberalization of charges) between cross-border services and services internal, which rejects unjustified discrimination or obstacles to cross-border services in contrast to internal services. The trial of equalization with the national presupposes accepting the validity of the national rule in a possible situation of domestic law". When the appellant questions the national rule then the matter must be resolved in a prior proportionality test. The free provision of cross-border services usually involves the exercise of a self-employed activity on a temporary basis, compared to the vocation of permanence that characterizes the establishment of the entrepreneur for the exercise of an economic activity on their own, in the State of reception. The subjective element in the typical cases of freedom to provide services is an entrepreneur not established in the territory of the State of destination of the service.
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