European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The concept of goods concerns goods capable of being subject to placement on the market or trade in the territory of the Union. Description as a service is granted by default to services normally provided for remuneration which are not governed by the provisions relating to freedom of movement for goods, capital and persons (Art. 57 TFEU). The line between the two concepts is not always easy to dr …

Freedom to provide services

The concept of goods concerns goods capable of being subject to placement on the market or trade in the territory of the Union. Description as a service is granted by default to services normally provided for remuneration which are not governed by the provisions relating to freedom of movement for goods, capital and persons (Art. 57 TFEU). The line between the two concepts is not always easy to draw. Although materials, sound recordings, films and other products used for the diffusion of television signals , literary and artistic works where their placing at the disposal of the public is inseparable from the circulation of the material form of the works, books or records , slot machines , second-hand goods sold by public auction  and printing works  are goods, literary and artistic works made available to the public by performances which may be infinitely repeated , televised commercial advertising , travels  and international letter-post , are services.

Where a national measure restricts both the free movement of goods and the freedom to provide services, the Court will in principle examine it in relation to only one of those two fundamental freedoms where it is shown that, in the circumstances of the case, one of them is entirely secondary in relation to the other and may be considered together with it. According to the “the incidental follows the principal” rule, the supply of goods, as part of a service, is incidental to that service and therefore comes under the freedom to provide services . Thus, an activity in respect of which the services provided by the economic operators are particularly prominent, whilst the supply of telecommunications equipment is related thereto in a purely secondary manner, which is only a specific step in the operation of the service and is only intended to enable access thereto, must be examined in the light of the freedom to provide services alone.  However, where it is impossible to determine which aspect of the free movement takes priority, the question is examined simultaneously in the light of both rules . 

Case 155/73 Sacchi [1974] ECR 409, LawLex200500004036JBJ.

Case 62/79 Coditel v Ciné Vog Films [1980] ECR 881, LawLex200900002033JBJ; See also Case 62/84 Usinor v Commission [1984] ECR 2643: specifying that video-cassettes are subject to classification in the common customs tariff.

Case C-403/08 Football Association Premier League and others, LawLex201100001693JBJ.

Case C-390/99 Canal Satélite Digital [2002] ECR I-607, LawLex200900000649JBJ.

Case C-124/97 Läärä and others [1999] ECR I-6067, LawLex200700001792JBJ.

Case C-239/90 SCP Boscher and others v British Motors Wright and others [1991] ECR I-2023, LawLex200900002065JBJ.

Case 18/84 Commission v France [1985] ECR 1339, LawLex200900001607JBJ: indicating that the printer's services lead directly to the manufacture of a physical article subject to classification in the common customs tariff.

Case C-17/92 Federación de Distribuidores Cinematográficos v Spanish State [1993] ECR I-2239, LawLex200900000700JBJ: Exploitation of films in a cinema or on television during which producers allow distributors to make copies and to organize public performances in consideration of a remuneration; Case 62/79 Coditel v Ciné Vog Films [1980] ECR 881, LawLex200900002033JBJ: indicating that the author has a legitimate interest in calculating his rights on the basis of the actual or probable number of performances; Case 262/81 Coditel v Ciné-Vog Films [1982] ECR 3381, LawLex200500005407JBJ.

Case 311/85 VVR v Sociale Dienst van de Plaatselijke en Gewestelijke Overheidsdiensten [1987] ECR 3801, LawLex200500003944JBJ.

Case C-147/97 Deutsche Post [2000] ECR I-825, LawLex200200003599JBJ: letter-post items analyzes as a cross-border service provided under the universal postal service, which requires the postal services of the contracting State to which letter-post items are sent, to forward and deliver them.

Case 45/87 Commission v Ireland [1988] ECR 4929, LawLex200900002330JBJ, for a restriction of materials that may be used in an invitation to tender; Case C-275/92 H.M. Customs and Excise v Schindler [1994] ECR I-1039, LawLex200900002113JBJ, for a lottery activity, where the import and distribution of material objects such as letters, promotional leaflets or lottery tickets are only intended to enable the participation in the lottery; Case C-55/93 Criminal proceedings against Van Schaik [1994] ECR I-4837, LawLex200500006022JBJ, for the supply of spare parts; Case C-97/98 Jägerskiöld [1999] ECR I-7319, LawLex200500005925JBJ, for making for consideration fishing waters available to third parties to fish although the fishing rights or spinning licenses are set down in documents which may be the subject of trade; Case C-451/99 Cura Anlagen [2002] ECR I-3193, LawLex200900000883JBJ, leasing.

European Business Law

15. Freedom to provide services

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

15. Freedom to provide services

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise