Implementing Freedom to Provide Services: Mutual Recognition Principle

Abstract

Postnikova Elena  - Lecturer, Department of International Law, National Research University Higher School of Economics, Candidate of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: l_postnikova@mail.ru.

The mutual recognition principle as a common principle of liberalizing transborder economic relations within the EU internal market plays a serious part in implementing freedom to provide services.  The main aim of the article is to reveal the role of mutual recognition principle in implementing freedom to provide services and to appraise its efficiency. The ground for its establishing was the EU Court judgment on the case 120/78 Cassis de Dijon  on an unlawful restriction on the free movement of goods. The article outlines the essence of the judgment. The author stresses the ambiguity of the principle in the light of different doctrinal approaches to its essence. The approaches differ in particular due to the interpretation of the principle. The doctrine mentions from time to time the view that the principle of mutual recognition is applied due to the absence of harmonizing acts at the EU level. However, another point of view admits applying the principle with minimum requirements to harmonization and within a new approach to harmonization. On the basis of the analysis of secondary EU law, EU case law and diverse doctrinal views, the author defines the content of mutual recognition principle. Within the area of applying the principle, a number of standard forms of mutual recognition are shown, in particular licenses and standards and recognizing professional qualifications and supporting documents. The special features of services as an object of economic relations and their legal regulation influence the application of the mutual recognition principle in this area. The article contains a comparative analysis of goods and services as objects of cross-border economic relations and on the basis of this research the author determines peculiarities of the application of mutual recognition principle in the services sector. The article assesses the application of the mutual recognition principle and reveals the reasons impeding its implementation. In particular, the article determines the role of the mutual recognition principle as to making state contracts on providing services. A particular attention is paid to the analysis of EU legislation concerning the recognition of professional qualifications. Directive 2005/36/EC on the recognition of professional qualifications is analyzed. The conclusion made is that the mutual recognition principle is not implemented in full however a tendency is seen in increasing the efficiency in the area of providing services.