CYIL vol. 8 (2017)

MONIKA FOREJTOVÁ CYIL 8 ȍ2017Ȏ the legal system governing the undertakings. ” We can generally include here the principle of non-discrimination, banning Member States from setting different conditions for the performance of activities for another Member State’s citizens solely on the grounds that they are of a different nationality. The ban on discrimination on grounds of nationality is mainly covered by Article 18 of the TFEU 29 (laying down this prohibition in general), Article 49 of the TFEU and Article 57 of the TFEU concerning the provision of services. Member States may, however, apply certain reservations in relation to this ban on the restriction of the freedom to provide services because, in the Treaties themselves, a fundamental exemption is defined, and rules on the freedom to provide services are not applied to those services that are directly and specifically connected with the exercise of official authority (or with the exercise of State administration) in the given Member State, as provided for by Article 51 of the TFEU. 30 Generally, exemptions can be split into those derived from primary law or accession treaties, and those facilitated by secondary law, including exemptions permitted by the case- law of the European Court of Justice. These exemptions, especially if they stem from primary and secondary law, are exhaustive, and only those specified may be invoked; the scope of exemptions cannot be extended. As for practices in place with the concept of the freedom to provide services, an exemption is established directly in primary law; as I have already mentioned, Article 51 of the TFEU prescribes legal restrictions on the freedom to provide services where activities are connected with the exercise of official authority. However, the ECJ, the highest autonomous interpreter of EU law, has never issued a ruling that such an exemption is to be conferred on a Member State. In this respect, Article 51 of the TFEU does not indicate exhaustively (or in any other way) activities connected with the exercise of official authority. This article, then, should be interpreted in a way that fulfils its purpose. Frequent disputes have shown that it is more difficult than it might seem to come up with such an interpretation. This is because, theoretically, 31 this provision can be interpreted – linguistically or purposefully – restrictively or extensively. The provision is interpreted literally if the outcome of that interpretation matches the established linguistic approach. Restrictively if we attach narrower significance than normal to the text, and extensively if our interpretation is intended to be broader. Nevertheless, it also holds true that, with an extensive interpretation, there are certain limits as to how far we can go with the terms because, here, there is a thin line between what is still interpretation and what is additional hypothesis on top of the law, in much the same way as there are limits distinguishing a restrictive interpretation from teleological reduction. 32 Article 51 of the TFEU is plainly fraught with difficulty. It contains vague and difficult-to- define terms such as “official authority” and “directly and specifically”. The fact that Article 51 of the TFEU is linked to the overcoming of obstructions to the freedom to provide services means that it is also connected with the sovereignty of Member States. Essentially, however, a restriction on the freedom to provide services is permitted only if it is proportional, non- 29 “Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.” 30 “The (right of establishment) shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority.” 31 Article 31 of the Vienna Convention on the Law of Treaties. 32 WINTR, J., Metody a zásady interpretace práva . Praha: Auditorium, 2013. Studie (Auditorium).

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