Introduction

That the requirement of a prior authorisation, as a precondition for the exercise of any economic activity, may restrict the freedom of establishment and the free provision of services is a truism. If an authorisation is required in the Member State where establishment is to take place or the service is to be offered (host Member State), then operators who lack such authorisation are in no right to proceed to the projected activity. Therefore, as soon as it is being accepted that the EU Internal Market rules are not only about discriminatory measures, but also cover mere restrictions, it comes as no surprise that national authorisation systems come to be scrutinised under the Internal Market rules.

This has been acknowledged by the Court in an explicit manner already in its 1986 Insurance cases and constantly thereafter. The idea that authorisations restrict the provision of services has been enshrined into secondary legislation in many sectorspecific texts starting with the “passport” systems in the field of insurance, banking and financial services. The ‘Internal Market clause’ introduced by the Television without Frontiers (TVWF) Directive and the e-Directives also tries to side-step the need for obtaining a fresh authorisation in the host state. The sector-specific directives for the network-bound industries also describe several conditions for the authorisation of operators in order to curb Member State discretion. More importantly and in a horizontal way, authorisations are solemnly held to be against the free provision of services by Articles 9–13 of the Services Directive. The fact, therefore, that national authorisation systems may fall foul of the Internal Market rules is granted.

This, however, does not lead to all national authorisation systems being struck down. On the contrary, the recent case law of the Court of Justice of the EU (CJEU) offers extremely interesting indications as to the situations where an authorisation system could be accepted (1), the conditions that such a system should fulfill in order to comply with the Internal Market requirements (2) and the extent to which the host Member State is obliged to take into account authorisations delivered in other Member States (3).