Of Empty Glasses and Double Burdens: Approaches to Regulating the Services Market à propos the Implementation of the Services Directive

Abstract:
The Services Directive had to be implemented into national laws by the end of 2009. This paper will start by briefly addressing some salient issues concerning this obligation and compare a selection of Member States on how they have coped with them. The Services Directive moreover gives occasion for discussing the instruments the Community legislator has at its disposal to regulate the provision of services in the European Union. We will distinguish home state rule in the form of the country of origin principle from host state rule in the shape of the general prohibition of restrictions. The dogmatic difference between these regulatory models provided in the Commission’s proposal and in final version of the Services Directive respectively will be examined. We will furthermore distinguish harmonization from mutual recognition and discuss both in light of the legality of the Services Directive. This paper concludes by submitting the key features each regulatory model should be associated with in order to foster conceptual and terminological clarity in this important area. However, it is also shown that the boundaries between the instruments examined are rather blurred.