Web-Companion Essential EU Law in Text: Suggested solutions to the exercises
Please find hereinafter the suggested solutions to the 64 exercises contained in the book "Tobler/Beglinger, Essential EU Law in Text, 5th edition, HVG-ORAC 2020, ISBN 978-963-258-490-4". To give you an idea how the exercises in the book are phrased, they have been added for the first three instances. Any comments or feedback are welcome.Free movement of persons and services – Exercise 6
Suggested solution:
The case concerns a service. According to the Court’s case law (Luisi and Carbone), tourism is a service and service recipients (here: the tourists) are covered by the Treaty provisions even though Arts. 56 and 57 TFEU only mention the providers of services. Again, is must be asked whether this type of service is covered by the Services Directive (Directive 2006/123/EC). Tourism is not mentioned as being exempt from the field of application of the Directive. Since the present case concerns recipients of services, Arts. 19 et seq. are applicable.
a) In the context of free movement law, age discrimination is not relevant (on this issue, see the exercises on social non-discrimination law). Residence requirements typically amount to indirect discrimination on grounds of nationality. However, this is different under the Services Directive, since Art. 20 prohibits discrimination on grounds of nationality as well as on grounds of residence. The discrimination at issue therefore is direct discrimination on grounds of nationality. At the same time, Art. 20(2) allows justification based on objective criteria (rather than only on the basis of the derogation grounds mentioned in the TFEU). In its handbook on the Services Directive, the Commission has suggested that different prices for services based on residence are acceptable in view of the fact that the locals contribute towards the costs of the services through taxes. However, this appears contrary to the Court’s case law on entry prices to tourist sights, in particular Commission v Italy (Case C-388/01).
[Relevant Charts: Chapter 8, in particular Charts 8/58-59]
b) Yes, it does: free movement of persons under Arts. 56 and 57 TFEU as well as under the Services Directive (Art. 4(3)) concerns EU citizens only.
[Relevant Charts: Chapter 8, in particular Chart 8/32]
c) Yes, it does: in such case, the cross-border element that is necessary for any free movement case is missing. The case is a purely internal case and as such not covered by Arts. 56 and 57 TFEU or by the Services Directive.
[Relevant Charts: Chapter 8, in particular Chart 8/2]
[V.1.1]