Proportionality to balance trade in services and fundamental rights between the CJEU and national courts

AutorGiuseppe Bianco - Tatum Ragues
CargoEcole Normale Supérieure of Paris - Université Paris 1 Panthéon-Sorbonne of Paris
Páginas141-159
P A N Ó P T I C A
Panóptica, Vitória, vol. 7, n. 1 (n. 23), 2012
ISSN 1980-775
PROPORTIONALITY TO BALANCE TRADE IN SERVICES AND
FUNDAMENTAL RIGHTS BETWEEN THE CJEU AND NATIONAL
COURTS*
Ecole Normale Supérieure of Paris
Université Paris 1 Panthéon-Sorbonne of Paris
1. INTRODUCTION
A privileged prism through which one can analyse the relationship between the Court of
Justice of the European Union and national courts is the use of proportionality in order to
strike a balance in cases opposing the freedom to provide services to fundamental rights.
The freedom to provide services – whose principle is set out in Article 56 TFEU – is,
together with the freedom of establishment, one of the two complementary means to lead to
liberalisation for trade in services in the European Union. The text of Article 56 explicitly
articulates the prohibition of restrictions to the free provision of services. However, the
possibility to derogate from it is provided for by Article 52 TFEU, if public policy, public
security or public health, are concerned. The question of allowing for restrictions to the
freedom to provide services is all the more important that the services sector, which has
known a considerable expansion in the past years, represents a substantial economic issue. It
thus involves an undeniable deal of political sensitivity. The latter is further increased by the
fact that the liberalisation of trade in services sometimes clashes with several fundamental
rights.
Since the texts are rather vague, it was the Court of Justice, in particular by the means of
preliminary rulings, that has taken on itself the task of clarifying the regime of the free
provision of services and of restrictions which States could adopt. Moreover, the Court was
* Although the article is the result of the authors’ joint work, Giuseppe Bianco wrote sections 2.1, 3.1, 3.2
and 4, and Tatum Ragues wrote sections 1, 2.2 and 2.3.
Panóptica, Vitória, vol. 7, n. 1 (n. 23), 2012
ISSN 1980-775
142
to undertake the delicate work of reconciling European economic freedoms with those
fundamental rights which were likely to be touched by the former. The analysis of the
experience in this field thus offers a valuable opportunity to examine the relationship
between the CJEU and national courts.
The CJEU case-law has gradually evolved. At the beginning, it devoted itself to defining the
key concepts. Lately, the Court more frequently adopts an analysis where the proportionality
principle has the first place (Chapter 1). It serves to strike a fair balance between economic
freedoms and fundamental rights (Chapter 2).
2. THE EVOLUTION OF THE CJEU’S CONTROL OVER THE FREEDOM TO
PROVIDE SERVICES. FROM THE DEFINITION OF TERMS TO THE
PROPORTIONALITY TEST
The control the CJEU operates in the field of the free provision of services has substantially
evolved over the past years. The case-law firstly focused on the definition of restrictions and
of their justifications. Nevertheless, difficulties concerning the liberalisation of trade in
services appear to have led the CJEU to dwell today on the evaluation of the proportionality
of restrictive measures taken by States.
2.1. THE CJEU’S ATTEMPTS TO DEFINE OBSTACLES TO THE FREEDOM TO
PROVIDE SERVICES, AND OF THEIR JUSTIFICATIONS
Since the texts did not offer much precision as to the contours of the free provision of
services, the CJEU dedicated itself to a gradual definition of its scope of application. As
regards the barriers to the freedom to provide services, the Court has identified two
categories. The first includes discriminations and the second, restrictions. Discriminations
consist of a difference in treatment based on nationality, residence or State of incorporation
for service providers or recipients. They can be justified exclusively on “grounds of public
policy, public security or public health”, as set out in Art. 52 TFEU (ex Art. 46 TEC).

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