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Regulating Trade in Services in the EU and the WTO

Regulating Trade in Services in the EU and the WTO Trust, Distrust and Economic Integration

Author: Ioannis Lianos; Okeoghene Odudu
Publisher: Cambridge University Press
ISBN: 9781107008649
Published In: March 2012
Format: Hardback , 514 pages
Jurisdiction: European Union ? Disclaimer:
Countri(es) stated herein are used as reference only

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This volume assesses the viability of various theories of economic integration that take into account the legal, economic, political and social challenges of incorporating free trade with retaining the plurality of social welfare standards and consumer protection. Chapters cover the governance of trade in services at the European and global level; studies on the recent Services Directive and how this interacts with the principle of managed mutual recognition and harmonization in different sectors of trade in services (social services, financial services); the recent case law of the European Courts on the enforcement of the principle of free movement of services and how this accommodates various national public interest concerns; and the interaction of the freedom to provide services with fundamental rights, including social rights. The operation of the principle of managed mutual recognition in other economic integration regimes, in particular in the context of the WTO, is also discussed.

• Engages with recent and complex case law of the European courts on the regulation of trade in services

• Builds an overall theory of economic integration that provides a critical analysis of the EU services directive and subsequent legislative developments

• Discusses the tensions between regulatory pluralism and regional or international trade regimes

List of contributors	xi
Acknowledgments	xiii
List of abbreviation	xiv
Table of cases	xvi
Introduction Ioannis Lianos and Okeoghene Odudu	1
Part I The ‘trust’ theory of integration	15
1 Trust, distrust and economic integration: setting the stage Ioannis Lianos and Johannes Le Blanc	17
1. Introduction	17
2. ‘Economic integration’ beyond functionalism	20
3. Two views of economic integration: efficient organizational creation and increasing levels of trust	41
Part II Unpacking the premises: mutual recognition, harmonization	57
2 Forms of mutual recognition in the field of services Vassilis Hatzopoulos	59
1. Introduction	59
2. Are services different from goods concerning mutual recognition?	60
3. Conceptual background	68
4. Practicalities	77
5. Enhanced (managed) mutual recognition	86
6. Conclusion	97
3 Trust and mutual recognition in the Services Directive Gareth Davies	99
1. Introduction	99
2. The Services Directive	101
3. The problems of the Single Market for services	102
4. The Services Directive as a regime for free movement and regulatory competition	110
5. The Services Directive as a mechanism for inter-State cooperation	114
6. Conclusions	119
4 Mutual recognition in the global trade regime: lessons from the EU experience Wolfgang Kerber and Roger Van den Bergh	121
1. Introduction	121
2. The principle of mutual recognition: theoretical analysis and the experiences within the EU	127
3. Application of the principle of mutual recognition on the global level: some conclusions	142
5 Public procurement and public services in the EU Chris Bovis	147
1. Introduction	147
2. Public services under EU law	149
3. The legal treatment of the financing of public services	157
4. Conclusions	168
Part III The interaction between pluralism, trust and economic integration	171
6 Shifting narratives in European economic integration: trade in services, pluralism and trust Ioannis Lianos and Damien M. B. Gerard	173
1. Introduction	173
2. The affirmation of pluralistic concerns in EU Internal Market law	175
3. Pluralism, economic integration and the emergence of an ethos of mutual trust	206
4. Conclusion	259
7 Trusting the Poles? Mark 2: towards a regulatory peace theory in a world of mutual recognition Kalypso Nicolaïdis	263
1. Introduction	263
2. Trusting the Poles? Constructing Europe through mutual recognition	265
3. Questions for a regulatory peace theory	285
Part IV Private parties and the economic integration process	299
8 Who’s afraid of the total market? On the horizontal application of the free movement provisions in EU law Harm Schepel	301
1. Introduction	301
2. The institutional limitation: ‘non-governmental regulatory bodies’	303
3. The substantive limitation: ‘direct discrimination’	307
4. The procedural alternative? Indirect effect	310
5. The cushion: the justification regime	313
6. Conclusion	315
9 The EU Services Directive and the mandate for the creation of professional codes of conduct Panagiotis Delimatsis	317
1. Introduction	317
2. Setting the scene: the Services Directive	319
3. The mandate for the creation of pan-European codes of conduct	321
4. Applicability of Articles 49 and 56 TFEU to private action	334
5. The relevance of EU competition rules	338
6. Conclusion	344
Part V Seeds of distrust: regulatory competition and diversity in the social sphere	347
10 Transborder provision of services and ‘social dumping’: rights-based mutual trust in the establishment of the Internal Market Olivier De Schutter	349
1. Introduction	349
2. The provision of services and labour rights: stages of progress towards regulatory competition	351
3. Regulatory competition and fundamental social rights	365
4. Mutual trust in social Europe	373
5. Conclusion	378
11 Reconceptualizing the constitution of Europe’s post-national constellation – by dint of conflict of laws Christian Joerges and Florian Rödl	381
1. Introduction	381
2. The conflicts-law approach to the European constellation	384
3. Outlook	399
12 Fundamental rights as sources of trust and voices of distrust in the European Internal Market Antoine Bailleux	401
1. Introduction	401
2. Fundamental rights as sources of trust	403
3. Fundamental rights as voices of distrust	407
4. Conclusion	411
Part VI Extensions: the relevance of the ‘trust theory’ of integration in the context of the WTO	413
13 I now recognize you (and only you) as equal: an anatomy of (mutual) recognition agreements in the GATS Juan A. Marchetti and Petros C. Mavroidis	415
1. Introduction	415
2. The basic economics of recognition	416
3. The law regarding recognition	421
4. Recognition in PTAs	425
5. Recognition: an anatomy	427
6. Concluding remarks	443
14 ‘Importing’ regulatory standards and principles into WTO dispute settlement: the challenge of interpreting the GATS arrangements on telecommunications Robert Howse	445
1. Introduction	445
2. Systemic issues in the importation of norms through interpretation	449
3. Telecommunications: the role of ITU standards	459
4. Conclusion: the WTO’s absent administrative function and Global Administrative Law	468
Index	471