16. Free Movement of Services and Capital

This chapter focuses on the third and fourth fundamental freedom of the European Union's internal market: the freedom of services and the freedom of capital. It begins by analysing the general aspects of the free movement of services. The European Court has significantly pushed negative integration through a restriction test; yet the Union has here equally followed a positive integration path in the form of the ‘Services Directive’. The chapter moves to two special—and very controversial—services regimes, namely that for posted workers and that for public services. It then deals with the free movement of capital, considering the scope of the (negative) freedom and surveying the various grounds on which restrictions to the free movement of capital may be justified.

Ocena zgodności z prawem Unii Europejskiej poselskiego projektu nowelizacji ustawy o ochronie zwierząt oraz niektórych innych ustaw

In the author’s opinion, the Bill concerns issues partially regulated by the EU law and interferes with the freedom of establishment and the freedom of services guaranteed by the treaties. This does not constitute a breach of the EU law, but the introduced restrictions do not have a proper justification in terms of their proportionality to the intended purpose of the regulation. An argument that similar legal solutions are in force in other Member States was not recognized to be such a justification. According to the author, although the changes contained in the Bill may serve the overriding general interest, that is animal well-being, the compliance of the provisions with the EU law may be challenged. In the remaining scope, the Bill is compliant with the EU law, with an exception of the amendments to the Act on Animal Protection that ban slaughter without stunning in an abattoir or a slaughterhouse.

Liberalisation of legal services in Europe: progress and prospects

The usual excuse for regulation is the failure of market provision. This paper examines legal services and suggests that, in the case of provision of commercial legal services to corporate clients, true events of market failure, to support the case for regulation, and more particularly self-regulation, are hard to locate. It further argues that the market for legal services is heavily stratified with a commercial legal services market effectively operating quite separately to that of professional legal services for private clients. In consequence, it may be more effective and proportionate to adopt differentiated strategies of regulation. This might be achieved by shifting the focus of regulation away from the individual practitioner, as is historically the case, towards law firms as such. This simple step, it is suggested, could facilitate much greater liberalisation of the market for legal services. This proposal is explored with particular reference to freedom of services within the European single market and, as a backdrop to the paper, progress to date in facilitating cross-border legal services in Europe is reviewed.