El ámbito de aplicación de la Directiva y los servicios excluidos:: una plasmación de las mutaciones de la Constitución Económica Europea
The Services Directive and therefore also the Spanish Statute 17/2009, implementing it, have affected the foundations of Spanish Administrative Law. This article departs from two working hypotheses: firstly, it is accepted that the changes that have been produced in Spanish Administrative law are of...
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| Format: | Article |
| Language: | Spanish |
| Published: |
2010
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| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=5573354 |
| Source: | Revista Aragonesa de Administración Pública, ISSN 1133-4797, Nº 12, 2010 (Ejemplar dedicado a: El impacto de la directiva Bolkestein y la reforma de los servicios en el Derecho Administrativo), pags. 209-248 |
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| Summary: |
The Services Directive and therefore also the Spanish Statute 17/2009,
implementing it, have affected the foundations of Spanish Administrative Law. This article
departs from two working hypotheses: firstly, it is accepted that the changes that have
been produced in Spanish Administrative law are of such a dimension that they justify
the opinions of those who point at a paradigm change. Secondly, this revolutionary
phenomenon is nuanced by what constitutes the second hypothesis, namely: the fact that
the Directive is just one example of a process of constitutional mutation forged along
various years in European Union Law. All freedoms of movement and free competition are
moving closer in written law and, more importantly, in the case-law of the Court of Justice.
Some of the perplexities that the Directive once provoked can be attributed, precisely, to
the fact that the freedom of movement of services and the freedom of establishment are
but two elements of the same reality. The norm does include some differences in their
corresponding legal regimes, but frontiers among them are fading away. There is still
one argument that needs to be put forward: the Directive shapes the exercise and interpretation of the freedom to conduct a business, thus addressing questions linked to free
competition. The constitutional mutation offers here one of its results, whereby the legal
conditions for access to and provision of services are an expression of a balancing of
constitutional principles, so that national legal operators would be impeded to open up
that balance. Further, the existence of a wide array of services that have been excluded
from the general regulation is also explained by the fact that particular balances have
been reached in specific sectors. This leads finally to a reflection on the characteristics
of such a balancing and, in particular, on the need to incorporate social and cultural principles in the argumentation, in line with the evolution of Union Law. These are the
debates that frame the theoretical context required to analyse the concept of service, i.e.
the criterion that defines the scope of application of the Services Directive. |
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