[Ch. 15. RIGHT OF ESTABLISHMENT AND RIGHT TO PROVIDE SERVICES

[B. Case Law on Freedom to Provide Service]

2. Right to Receive Services in Other States

• COWAN V. TRÉSOR PUBLIC, p. 558 (1989)
• is the right to go to another MS to receive services implicit in the right to provide services in another MS?
• is a tourist a receiver of services?
• is a tourist injured by a crime entitled to national treatment in respect of state compensation for crime victims?
• the status of tourist is protected by Community law
• art. 7 prohibits discrimination based on nationality, w/n scope of Treaty
• S.P.U.C. IRELAND V. GROGAN, p. 561 (1991)
• is the provision of an abortion a service? [yes]
• does the distribution by third persons, gratis, of information concerning the availability of abortions, constitute a service within the meaning of ex art. 59?
• does prohibition of the latter constitution a restriction on the former?
• if Ireland banned advertising by the UK abortion provider, would that violate art. 59? Cf. art. 46 (ex art. 56), "public policy" exception
• if Ireland sought to forbid an Irish national to go to the UK for an abortion, would that violate ex art. 59?
 
3. Cross-Border Services Provided by Technological Means
• PROCUREUR DU ROI V. DEBAUVE, p. 564 (1980). MS Prohibition against advertising on broadcast media, as applied to cable television provider transmitting programs from other MS.
• is broadcasting a "service"?
• is origin-neutral limitation on broadcast advertising, applied to domestic enterprises transmitting programs from other MS, inconsistent with ex art. 59?
• allowing state-owned system to broadcast advertising from abroad, while forbidding private systems to do so: Bond van Adverteerders, n. 2 p. 566 (1988)
• requiring local-origin content: Commission v. Netherlands, n. 3 p. 566 (1991)
• ALPINE INVESTMENTS BV V. MINISTER VAN FINANCIEN, Supp. p. 259 (1995). Prohibition against "cold calling" to solicit brokerage transactions in commodities futures.
• Does the "selling arrangements" exception to ex art. 30 on goods, Keck, apply to ex Art. 59? If not, why not?
• is the activity regulated itself entirely local?
• would the answer be different, if only calls from Holland to recipients located in Holland were banned?
• is the limitation on "cold calling" justified by reasons of public policy (ex art. 56)?
• What exactly is the public policy interest put forward by the Netherlands here?
• given the variety of MS regulations on the subject, can the Netherlands be expected to rely on other MS regulations (those of the state of origin) to protect its interest?
• "Television without Frontiers", and Directive 89/552 (DocSupp. p. 328)
• content, form, frequency and proportional time of advertising
• tobacco products, prescription drugs, alcohol
• offensiveness to religious or political beliefs
• timing of pornography or gratuitous violence
• origin of programs (majority content rule)
• LECLERC-SIPLEC, Supp. p. 263 (1995): is a total ban on advertising consistent with the Directive?
• Dir. art. 3(1): "Member States shall remain free to require television broadcasters under their jurisdiction to lay down more detailed or stricter rules in the areas covered by this Directive."
• Dir. arts. 19 (authorizing MS to lay down stricter rules on proportional time) and 20 (authorizing MS to lay down stricter rules on timing, for broadcasts limited to local transmission) - do they imply a limitation on the kind of restrictions MS may impose that are stricter than those of the Directive?
• art. 20 says "without prejudice to art. 3", while art. 19 does not
• to give art. 19 preclusive effect would render 3(1) superfluous
• AGOSTINI, Supp. p. 265 (1997)
• Is a prohibition against misleading advertising by a receiving state inconsistent with the Directive?
• is it origin-neutral?
• is it necessary to protect appropriate MS interest?
• is it proportionate to the need?
• are there less trade-restrictive alternatives?
• Is a prohibition against advertising directed to children under 12 consistent with the Directive?
• are there child-protective provisions in the Directive itself?
• do they preempt MS regulations for the same purpose?
• Should there be a general principle placing responsibility and power to regulate advertising to the MS from which the transmission emanates?