Settlement of disputes in the case of the prohibition of the access to the market Seminar on EU Service Directive Budapest, 3 May 2007 Thibaut Partsch Attorney

Disput settlement - Thibaut Partsch Outline Introduction Procedures in the Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (the “Directive”) Preliminary rulings Actions by the EU Commission Disput settlement - Thibaut Partsch

Few references to dispute resolution “… the means of redress which are generally available in the event of dispute between the competent authorities and the provider …” (Art. 7 (1) (d) Directive) “Except in the case of the granting of an authorisation, any decision from the competent authorities, including refusal or withdrawal of an authorisation, shall be fully reasoned and shall be open to challenge before the courts or other instances of appeal.” (Art. 10(6) Directive) Art. 27 Directive “Settlement of dispute” Introduction Few references Procedural provisions Treaty framework Procedures Preliminary rulings EU Commision’s actions Disput settlement - Thibaut Partsch

Transparency and procedural requirements Right to information (Art. 7 Directive) Conditions for granting the authorisation (Art. 10 Directive) Selection procedure (Art. 13 Directive) Prohibited requirements (art. 14 Directive) Requirements to be evaluated (Art. 15 Directive) Introduction Few reference Procedural provisions Treaty framework Procedures Preliminary rulings EU Commision’s actions Disput settlement - Thibaut Partsch

Framework of the Treaty Preliminary rulings Actions by the EU Commission Introduction Few reference Procedural provisions Treaty framework Procedures Preliminary rulings EU Commision’s actions Disput settlement - Thibaut Partsch

Procedures set forth by the Directive Special attention to the procedure for the freedom of establishment Conditions (Art. 10 Directive) Authorisation procedure (Art. 13 Directive) Disput settlement - Thibaut Partsch

Disput settlement - Thibaut Partsch Conditions (Art. 10) “… based on criteria which preclude the competent authorities from exercising their power of assessment in an arbitrary manner.”(Art. 10(1) Directive) Criteria shall be : “Clear and unambiguous” (Art.10(1)(d) Directive) “Made public in advance” (Art. 10(1)(f) Directive) “Transparent and accessible” (Art. 10(1)(g) Directive) “… any decision from the competent authorities, including refusal or withdrawal of an authorisation, shall be fully reasoned and shall be open to challenge before the courts or other instances of appeal” (Art. 10(6) Directive) Introduction Procedures Conditions Procedure Preliminary rulings EU Commision’s actions Disput settlement - Thibaut Partsch

Procedure (Art. 13 Directive) “… clear, made public in advance” (Art. 13(1) Directive) “…processed as quickly as possible and, in any event, within a reasonable period which is fixed and made public in advance. The period shall run only from the time when all documentation has been submitted” (Art. 13 (3) Directive) “Failing a response within the time period set or extended in accordance with paragraph 3, authorisation shall be deemed to have been granted” (Art. 13(4) Directive) Indication of the available means of redress (Art. 13 (5) Directive) Fully reasoned (Art. 10(6) Directive) Introduction Procedures Principles Conditions Procedure Preliminary rulings EU Commision’s actions Disput settlement - Thibaut Partsch

Disput settlement - Thibaut Partsch Preliminary rulings Principles Conditions Effects Disput settlement - Thibaut Partsch

Disput settlement - Thibaut Partsch Principles National judge in charge of applying EU law rules No right of action to EU Courts against acts of the Member States (Art. 230 EC) Preliminary rulings (Art. 234 EC) Introduction Procedures Preliminary rulings Principles Conditions Effect EU Commision’s actions Disput settlement - Thibaut Partsch

Disput settlement - Thibaut Partsch Conditions Questions on the interpretation of the Treaty or the validity and interpretation of acts of the institutions of the Community and of the ECB (Art. 234, § 1, EC) Raised in front of a Tribunal : “that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon” (Art. 234, § 2, EC) “Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice” (Art. 234, §3, EC) Introduction Procedures Preliminary rulings Principles Conditions Effect EU Commision’s actions Disput settlement - Thibaut Partsch

Disput settlement - Thibaut Partsch Effect For the dispute For other cases Introduction Procedures Preliminary rulings Principles Conditions Effect EU Commision’s actions Disput settlement - Thibaut Partsch

Actions by the EU Commission Principle Procedure Efficiency Disput settlement - Thibaut Partsch

Disput settlement - Thibaut Partsch Principles EU law is enforced by Member States and the Commission Citizens may denounce infringements to the EU Commission EU Commission may act against Member States for failures to fulfil their obligations under the Treaties Introduction Procedures Preliminary rulings EU Commision’s Actions Principles Procedure Efficiency Disput settlement - Thibaut Partsch

Disput settlement - Thibaut Partsch Procedure – Art. 226 EC “If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations” (Art. 226, §1, EC) “If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice” (Art. 226, § 2, EC) Introduction Procedures Preliminary rulings EU Commision’s Actions Principles Procedure Efficiency Disput settlement - Thibaut Partsch

Disput settlement - Thibaut Partsch Efficiency Important for general questions More limited in case of individual issues Introduction Procedures Preliminary rulings EU Commision’s Actions Principles Procedure Efficiency Disput settlement - Thibaut Partsch

Disput settlement - Thibaut Partsch Questions? Please contact me: Thibaut Partsch tpartsch@post.harvard.edu +352 661 35 02 99 Disput settlement - Thibaut Partsch