Services liberalization in the EU and the WTO : concepts, standards and regulatory approaches / Marcus Klamert.
2015
KJE6819 .K57 2015 (Map It)
Available at Cellar
Formats
| Format | |
|---|---|
| BibTeX | |
| MARCXML | |
| TextMARC | |
| MARC | |
| DublinCore | |
| EndNote | |
| NLM | |
| RefWorks | |
| RIS |
Items
Details
Author
Title
Services liberalization in the EU and the WTO : concepts, standards and regulatory approaches / Marcus Klamert.
Published
Cambridge, United Kingdom : Cambridge University Press, 2015.
Call Number
KJE6819 .K57 2015
ISBN
9781107034594 (hardback)
1107034590 (hardback)
9781316057681 (PDF ebook)
1107034590 (hardback)
9781316057681 (PDF ebook)
Description
xxxviii, 318 pages ; 24 cm.
System Control No.
(OCoLC)884305124
Summary
"Both in WTO law and EU law there is a dichotomy between liberalisation based on market access and targeting domestic regulation. Consequently, both regimes share the problem of distinguishing national measures impairing market access and those that do not have such effect. Looking at the provision of services, a cornerstone of EU substantive law, in the EU and the WTO this book offers a comprehensive evaluation of the current legal status quo on transnational services provision on a global level. Based on thorough analysis of both EU and WTO law, policymakers are provided with concrete proposals for fostering the consistency and effectiveness of the current regime. A final chapter discusses possible approaches to regulation such as home state rule, host state rule and mutual recognition from a comparative perspective. Written by a highly respected author team, this is essential reading for EU internal market specialists and WTO law scholars alike"-- Provided by publisher.
"Services liberalization is just as much a hot potato within the European Union as it is within the WTO. In this work Markus Klamert offers a stimulating examination of how the EU and the WTO have coped with market liberalization and with the development of regulatory standards. His analysis almost recalls the perceived relationship between the United Kingdom and the United States (two nations divided by a common language). While the EU and WTO regimes display manifest differences, the language of market access, discrimination, justifi cation and harmonization can be seen as being hewn from the same roots. This work seeks to lift the veil of ignorance about these similarities and to encourage more cross-fertilization than has hitherto occurred"-- Provided by publisher.
"Services liberalization is just as much a hot potato within the European Union as it is within the WTO. In this work Markus Klamert offers a stimulating examination of how the EU and the WTO have coped with market liberalization and with the development of regulatory standards. His analysis almost recalls the perceived relationship between the United Kingdom and the United States (two nations divided by a common language). While the EU and WTO regimes display manifest differences, the language of market access, discrimination, justifi cation and harmonization can be seen as being hewn from the same roots. This work seeks to lift the veil of ignorance about these similarities and to encourage more cross-fertilization than has hitherto occurred"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages 291-307) and index.
Available in Other Form
ebook version 9781316057681
Record Appears in
Table of Contents
Series editors' preface
xv
Preface
xvii
Table of case law
xix
Table of materials
xxxi
Introduction
1
1.
WTO law on services: a starter kit
9
1.1.
Introduction
9
1.2.
Status of negotiations under the GATS
11
1.3.
The architecture of the GATS
13
1.3.1.
General obligations and specific commitments
13
1.3.2.
Reference papers, annexes and disciplines
15
1.4.
Scope of application of the GATS
18
1.4.1.
Substantive coverage
18
1.4.2.
Sectoral coverage
19
1.4.3.
The modes of supply covered
20
1.5.
The Most Favoured Nation principle
24
1.6.
Specific commitments
25
1.6.1.
Scheduling
25
1.6.2.
Market access
27
1.6.3.
National treatment
29
1.6.4.
Conclusion
32
1.7.
Exemptions from the GATS
32
1.7.1.
General exemptions
32
1.7.2.
Exemptions from MFN
35
1.8.
Domestic regulation
36
1.8.1.
The background
36
1.8.2.
Article VI GATS
37
1.8.3.
The relation to specific commitments
39
18.3.1.
The interplay between `market access' and national treatment under the GATT
39
18.3.2.
The interplay of domestic regulation with national treatment and market access under the GATS
40
1.8.4.
Disciplines on domestic regulation
41
1.9.
The effect of WTO law in national law
44
1.10.
Conclusion
46
2.
The relationship between the EU and the WTO: differentiation and participation
48
2.1.
Introduction
48
2.2.
`Constitutional' differences between the EU and the WTO
49
2.2.1.
`Law-making'
49
2.2.2.
`Adjudication'
52
2.2.3.
Effect in national law
58
2.3.
The prerequisites and modalities of the participation of the EU in the WTO
60
2.3.1.
Introduction
60
2.3.2.
The EU and WTO derogations for regional trade agreements
61
2.3.3.
EU competence and representation
63
2.3.4.
EU commitments
65
2.4.
A structural divide: competition law
69
2.5.
Conclusion
74
3.
EU primary law on services: fundamentals and delimitations (with Kathrin Blanck-Putz)
75
3.1.
Introduction
75
3.2.
Fundamentals
76
3.2.1.
The regulatory standard and establishments
76
3.2.2.
The regulatory standard with services
79
3.2.3.
Some specifics on companies
82
3.2.4.
Constitutive elements
84
3.2.4.1.
Introduction
84
3.2.4.2.
Inter-state element
84
3.2.4.3.
Economic activity/remuneration
86
3.2.4.4.
Permanence/duration
88
3.3.
The justification regime
90
3.3.1.
Introduction
90
3.3.2.
General (treaty-based) justifications
90
3.3.3.
Specific (case law-based) justifications
91
3.3.4.
Convergence of the justification regime
94
3.3.5.
Proportionality
95
3.3.6.
The test of equivalence
98
3.4.
Relationship with the other freedoms
101
3.4.1.
Introduction
101
3.4.2.
Services and establishments
102
3.4.3.
Goods and services
104
3.4.4.
Services and capital
108
3.5.
Public services
109
3.5.1.
Introduction
109
3.5.2.
Services in official authority
110
3.5.3.
Services of general economic interest
112
3.5.3.1.
Introduction
112
3.5.3.2.
The bask rule for the conferral of special or exclusive rights
113
3.5.3.3.
The exception for public services
114
3.5.3.4.
The exception from the exception and the Altmark criteria
117
3.6.
Conclusion
121
4.
Deconstructing EU law on services and establishments
122
4.1.
Introduction
122
4.2.
Some initial thoughts on deconstructing the regulatory standards
123
4.2.1.
Discriminatory measures and restrictions
123
4.2.2.
Market access and domestic regulation
126
4.3.
The trouble with Keck
127
4.3.1.
Introduction
127
4.3.2.
The double rule exception in Keck and Gourmet
128
4.3.3.
Which regulatory standard does Keck represent?
130
4.4.
The market access-domestic regulation dichotomy in EU services law
132
4.4.1.
The application of Keck to services
132
4.4.2.
Recital 9 Services Directive
135
4.4.3.
Other distinctions between market access and domestic regulation in EU law
136
4.4.4.
Conclusion
138
4.5.
Do the fundamental freedoms have a `blind spot'?
138
4.6.
The fault-lines of the debate on discrimination in EU (services) law
142
4.6.1.
Introduction
142
4.6.2.
Distinctly and indistinctly applicable measures
143
4.6.3.
One-step or two-step review of discrimination?
145
4.6.4.
Indirect discrimination
146
4.6.5.
The justification regime
148
4.7.
Conclusion
151
5.
Variatio delectat? Different regulatory approaches for different services
153
5.1.
Introduction
153
5.2.
Minimum coordination: posting of workers
154
5.3.
Mutual recognition: professional qualifications
158
5.4.
`Hybrid negative harmonization': the Services Directive
161
5.4.1.
Regulatory approach
161
5.4.2.
Regulatory nature
163
5.5.
Soft law and case law: services of general economic interest
166
5.6.
Conclusion
172
6.
The Services Directive: innovation and fragmentation
174
6.1.
Introduction
174
6.2.
Scope of application
176
6.2.1.
Introduction
176
6.2.2.
Key concepts
176
6.2.3.
Sectoral coverage
178
6.2.4.
Exemptions from the scope of application
179
6.2.5.
The partial exemption of services of general economic interest
181
6.3.
The rules on established service providers
184
6.3.1.
Blacklisted national measures
184
6.3.2.
Restrictions
185
6.3.2.1.
Introduction
185
6.3.2.2.
Requirements
185
6.3.2.3.
Authorizations
186
6.3.3.
Justification
187
6.3.4.
Conclusion
189
6.4.
The rules on services
189
6.4.1.
Introduction
189
6.4.2.
The freedom to provide services in Article 16(1)
191
6.4.2.1.
The wording of Article 16(1) and the relevance of Article 16(3)
191
6.4.2.2.
The justifications regime under Article 16
192
6.4.2.3.
The limited relevance of Article 16(1)
194
6.4.2.4.
The legality of Article 16(1)
197
6.4.3.
The Article 16(2) blacklist
198
6.4.4.
Safety measures under Article 18
199
6.4.5.
Conclusion
200
6.5.
The bigger picture on rules on services and establishments under the Services Directive
200
6.6.
Screening
204
6.6.1.
Introduction
204
6.6.2.
Requirements and safety measures
204
6.6.3.
The potential of screening
205
6.7.
Quality of services
209
6.8.
Administrative provisions
210
6.8.1.
Introduction
210
6.8.2.
Information and administration
211
6.8.3.
Mutual assistance, cooperation and supervision
212
6.9.
Fragmentation/relation to other secondary law
213
6.9.1.
Introduction
213
6.9.2.
The relationship between Article 3 and Article 17 Services Directive
215
6.10.
Conclusion
221
7.
The implementation of the Services Directive: a Herculean effort with poor results? (with Georg Adler)
223
7.1.
Introduction
223
7.2.
Requirements of the Services Directive from an implementation perspective
225
7.2.1.
Introduction
225
7.2.2.
Points of single contact
226
7.2.3.
Applicability to purely internal situations
227
7.2.4.
Tacit authorization
228
7.2.5.
Article 16 Services Directive
229
7.3.
Implementation in Germany
230
7.3.1.
Introduction
230
7.3.2.
Points of single contact
231
7.3.3.
Tacit authorization
233
7.3.4.
Article 16 Services Directive
234
7.4.
Implementation in Austria
235
7.4.1.
Introduction
235
7.4.2.
Points of single contact
237
7.4.3.
Tacit authorization
239
7.4.4.
Article 16 Services Directive
240
7.5.
A comparative view of the implementation of Article 16
241
7.6.
Conclusion
243
8.
Principles of services law in the EU and the WTO: comparing the comparable
245
8.1.
Introduction
245
8.2.
The sectoral and horizontal approaches compared
247
8.3.
Exemptions compared
250
8.4.
Home state rule and host state rule
254
8.4.1.
Home state rule
254
8.4.2.
Host state rule
256
8.5.
Mutual recognition as the missing link
258
8.5.1.
Introduction
258
8.5.2.
Mutual recognition in the GATS and the EU Treaty
259
8.5.3.
The nature of mutual recognition
260
8.5.4.
The relationship between mutual recognition and harmonization
262
8.6.
Market access
264
8.6.1.
Introduction
264
8.6.2.
Form and effect in EU and WTO law
265
8.6.3.
A comparative view of US-Gambling
267
8.6.4.
Conclusion
269
8.7.
Non-discrimination
270
8.7.1.
Introduction
270
8.7.2.
Likeness and the tertium comparationis
271
8.7.3.
Direct and covert discrimination
274
8.7.4.
Indirect discrimination and de facto discrimination
276
8.7.5.
Conclusion: what test for which form of discrimination?
278
8.8.
Differential regulation and double burdens
279
8.8.1.
Introduction
279
8.8.2.
Double burdens
280
8.8.3.
Differential regulation
283
8.9.
Conclusion
285
9.
Quo vadit? Conclusions and recommendations
288
References
291
Index
308