Abstract Title Author Introduction Methods by JasonDetriou

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									University of Heidelberg                                            Project number 04HS068
Institute of Foreign and International
Private and Business Law                                                              Abstract



                                          Abstract

Title
“Implications of the Draft EC-Directive on Services in the Internal Market on Provisions
under the Responsibility of the Federal Ministry for Consumer Protection, Food and
Agriculture (Bundesministerium für Verbraucherschutz, Ernährung und Landwirtschaft,
Germany)”


Author
University of Heidelberg, Germany
Institute for Foreign and International Private and Business Law


Introduction
The objective of the Draft EC-Directive on Services in the Internal Market is to achieve an
integrated internal market for services by removing legal and administrative barriers to the
development of a cross-border service market.


Against this background the study undertakes to analyze the question to what extent national
German standards concerning the portfolio of the Bundesministerium für Verbraucherschutz,
Ernährung und Landwirtschaft can be upheld in the light of a future EC Directive on
Services. Furthermore the question was posed, in which way present administrative
procedures are affected by the Directive’s requirements.


Methods
The initial point within the considerations was to define the Ministry’s precise responsibility.
The Ministry pursues a double approach to protect the consumers’ interests and needs. First,
the consumers have to be protected in the fields of health, security and environment, which
is mainly guaranteed by public law. Second, to protect the consumers’ economic interests is
the main task of private law.




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University of Heidelberg                                           Project number 04HS068
Institute of Foreign and International
Private and Business Law                                                             Abstract



As to private law the analysis was focussed on consumer contract law, fair competition, law
of torts and injunctions for the protection of consumers’ interests. Administrative proceedings
in general, animal protection, phytosanitary and public health care were anlyzed within the
field of public law.


Results
First of all the analysis clarified that the Draft EC-Directive strictly differentiates between
service providers or their subsidiaries present in the Member State, where the service is
rendered, and services provided across the border by suppliers situated in another Member
State. In its chapters II and III the Directive distinguishes between the freedom of
establishment and the freedom to provide services and defines different requirements for
services in exercise of the respective freedoms. While chapter II contains many specific
provisions necessitating modification of the national domestic laws, chapter III requires that
service providers exercising the freedom to provide services across the border are subject only
to the domestic law of their Member State of origin.


The introduction of a choice-of-law rule according to which the laws of the state of origin
govern all issues related to the provision of services would bring about a fragmentation both
of the applicable law and of the Private International Law. In particular, the Directive would
cause enormous difficulties in ascertaining the specific scope of such a choice-of-law rule
with respect to consumer contract law, as the latter gradually becomes completely
harmonized. Additionally, a downfall of national standards of consumer protection is
possible.


With respect to public law many aspects and details of the impact of the EC-Directive have to
be taken account of, which makes it impossible to render any straightforward evaluation. For
example, EC Treaty law as well as the respective secondary law instruments do not protect
animals to the degree German law does. Consequently, the Directive could result in a lower
level of animal protection compared to current German standards. Then again, the standards
of regulation of phytosanitary and food law will not decline substantially compared to current
German standards. However, the necessary differentiation between the freedom to provide



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University of Heidelberg                                         Project number 04HS068
Institute of Foreign and International
Private and Business Law                                                          Abstract



services and the free movement of goods established in art 28 to 30 EC Treaty will lead to a
questionable fragmentation of coherent fields of law.


Conclusion
The proposed EC-directive on Services in the Internal Market has important implications on
provisions under the Responsibility of the Bundesministerium für Verbraucherschutz,
Ernährung und Landwirtschaft. Particularly, the consumers’ economic interests – mainly
protected by private law – will be affected substantially.


Acknowledgements
The study was commissioned and financed by the Bundesministerium für Verbraucherschutz,
Ernährung und Landwirtschaft, Germany.




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