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2.2.1. Regulation of trade by services within the limits of the European Union

The most advanced stage economic integration has reached in the European Union (EU) where within the limits of the General market all restrictions on mutual trade as are removed by the goods, and services.

EU including in the structure of 25 states, is "unique, universal integration, in the big degree the state-like the international association with elements nadnatsionalnosti and almost universal competence" [125].

The economic right of EU is based on four basic principles: to freedom of moving of persons (including establishment freedom), freedom of rendering of services, freedom of moving of the goods, freedom of moving of the capital.

These freedom have been provided by the Roman contract on establishment of the European economic community of 1957

General provisions on granting of services are established in gl. 3 specified Contracts, are concretised and developed by instructions of Council of EU 77/249 from March, 22nd, 1977, № 89/48 from December, 21st, 1988, etc.

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According to the Contract, services are meant as those services which are usually given for compensation provided that they are not regulated by the positions concerning free movement of the goods, capitals and persons. According to item 50 (former item 60), this concept, in particular, includes activity of industrial character; activity of trading character; activity of handicraftsmen; activity of persons of liberal professions. Later to them have been added tourist activity and radio reports, including advertising by radio.

Apparently from definition, the concept of "service" is used here narrowly enough and only for regulation of the activity covered gl. Z contracts. Definition of concept "service" in the contract is absent, that is caused, first of all, a variety of services and other reasons considered in гл.1 the present dissertation and involves different interpretation of this term by the national legislation. Therefore, in our opinion, it is possible to agree with the statement, that "such approach quite corresponds to the proclaimed principle subsidiarnosti the rights of the European Union" [126], however it is necessary to notice, that it is caused by objective causes and in process of development of legal regulation of trade by services can be changed. Thereupon it is necessary to pay attention that the problem which has been not solved at universal level within the limits of the General agreement on trade by services, remains not settled and at level of the European integration.

The Roman contract contains also the norms regulating trade by services, not covered gl. 3 Contracts.

It is possible to allocate following modes of trade with services within the limits of the General market of EU:

1) a mode of trade in the services, provided for the activity covered by item 50 of the Contract;

2) a mode of trade in the services which are given within the limits of realisation of freedom of establishment and not regulated gl. 3 Contracts, including certain additional requirements to service providers and specific guarantees of their activity;

3) a mode of trade in the services connected with movement of the capital, in particular bank and insurance, established within the limits of positions of the Contract on free capital account and payments (Contract chapter 4);

4) a mode of trade in the services regulated by positions, concerning free movement of the goods;

5) a trade mode transport services (section of V Contract).

Within the limits of these general modes established by the Roman contract, there are special modes of trade in the separate types of service, established by various Instructions of Council of EU.

Let's consider modes in more details.

1. A mode of trade in the services, provided for the activity covered by item 50 of the Contract.

The contract provides cancellation of restrictions in the field of free rendering of services within the limits of Community. Contract Item 49 says, that in frameworks gl. Z contracts "restrictions on free granting of services in Community come under to cancellation with reference to citizens of the member states which have located in member state Communities others, than that to which citizens services" are rendered. The court of the European communities, having carried out interpretation of these norms of the Contract has specified, that member states are obliged to cancel any rules discriminating between foreigners - citizens of EU, rendering services in their territory, and the citizens, rendering the same services. They also should cancel any restrictive rules applied to all persons, rendering services, without discrimination. Similar rules are an obstacle for granting of services by the person who is in other member state and having the right to give them on lawful basises. [127]

According to paragraph 3 of item 50 of the Contract the person, rendering services, can temporarily carry out the activity in that state where these services are given, on the same conditions which are established for citizens of the given state if it does not break positions of the chapter regulating freedom of establishment and economic activities.

The discrimination interdiction to a national sign has found reflexion in a number of judgements. In particular, certain interest represents business Gaetano of Don against Mario Montero [128] in which Rules of the Italian federation of football have been investigated. According to these rules only members of the specified federation can take part in professional and semiprofessional competitions. However, the Court has come to conclusion, that as professional football players render the services for a payment their activity is economic and concerns activity on rendering of the services, regulated by the Community right. The court, satisfying the claim about discrimination prohibition, has specified in the decision, that according to norms and spirit of the Roman contract any discrimination to a national sign is forbidden and that the given position extends on all physical persons - citizens of EU member states rendering services. [129]

According to the Instruction of Council of EU № 73/148/ЕЭС about cancellation of restrictions on entrance and stay of citizens of EU member states within Community in the field of freedom of enterprise activity and granting of services, EU member states not only cannot obstruct the citizens, rendering services in territory of other country or having such intention, but also should support to them and the help, in particular, in arrangement questions in the country of time stay. Besides, the preferential mode given to such citizens, extends and on members of their families.

At entrance on territory of EU member state and at departure from its territory, the citizens rendering services, and members of their families give only passports or other identification cards. Registration entrance and exit visas and other additional documents is not required.

The citizens, rendering services and members of their families receive “the identification card of the citizen of EU member state” which stands out for the term of not less than 5 years, and after this term automatically renews. They also have the right to permanent residence in that country where render services which remains and in case of departure from the country for the term of no more than 6 months, or in connection with necessity of execution of a soldier's duty.

According to Contract item 47 the set of instructions of the Council providing a mutual recognition of diplomas, certificates and other documents confirming qualification, and also licences was accepted.

Main principles in sphere of requirements to formation have been put in pawn by the Instruction 89/48 about a mutual recognition of the higher education, become effective since January, 1991. By the instruction it is established, that the foreigner from the EUROPEAN ECONOMIC COMMUNITY country should be admitted to a trade demanding training within not less than three years with reception of the standard diploma about higher education provided that it has an equivalent diploma of the country on which it can get in it similar work. However the Instruction provides, that if the available diploma does not consider feature of work for which the specified person applies, it can be offered to it or to pass corresponding examination for post employment, or to carry out improvement of professional skill in time, not exceeding three years. For example, to carry out activity on granting of legal services, it is necessary for migrant to pass training and to pass corresponding examinations. Moreover, item 5 of the Instruction of Council 77/249 from March, 22nd, 1977 On assistance to an effective utilisation lawyers of freedom of granting of services [130] provides, that the accepting state can cause activity of the coming lawyer concerning granting of the client in legal proceedings by the requirement to operate in interaction with the lawyer of the accepting state. EU court in the decision on business 427/85 v. Germany and on business 294/89 v. France has specified, that the requirement to operate together with the local lawyer should limit is minimum is right the coming lawyer on granting of services. By court it has been established, that if the local legislation does not demand representation of interests of the party by the lawyer, but allows to represent to the person the interests independently or with the help not the lawyer, the duty cannot be assigned to the coming lawyer to operate together with the local lawyer [131]. However limited interpretation by Court of specified article of the Instruction has not eliminated an inequality between local lawyers and lawyers - foreigners.

Thus, some trades have special regulation that leads to absence of full equality between local experts and the experts-migrants who are carrying out activity by an "adjustable" trade.

It is necessary to notice, that EU right is applied at licensing only in separate spheres of trade by services, in particular, in sphere of telecommunications and bank services. In other cases delivery of licences is carried out by state bodies of member countries that represents difficult enough process, considering various rules of licensing in those or other kinds of activity. [132]

EU court in business Luizi against the Ministry of Finance (v. Ministero del Tesoro), considered in 1983 has noticed, that, speaking about freedom of granting of services, the Roman contract means also other integral part - freedom of their reception. In this connection the court recognised as contradicting EU right national restrictions on export from the country of money with a view of reception of services in other member state (in this case it was a question of the citizen of Italy, wishing to get education in other state of EU). In the same decision the Court recognised, that on service reception restrictions with a view of protection of the public safety, public health or state policy realisation can be entered. As to public safety protection here certain interest represents business v. Ministre de l’lnterio (1975/ECR 1219) in which Court EC recognised, that the basis for restrictions should be only the present behaviour of the individual creating valid and serious enough threat of the public safety. At realisation of a state policy of restriction are possible and in the event that there are bases to believe, that the given individual can break the public world and an order [133]. It is necessary to notice, that the Instruction 64/221 provides the right of the person in which relation restrictive measures are applied, to receive from the authorities the corresponding information (under a condition if its granting does not undermine the public safety) and to appeal against actions of the authorities both in EU bodies, and in the European Court under human rights.

The mode operating within the limits of freedom of rendering of services in the equal

Or the firms founded according to the legislation of any member state and the registered site, the central management and the basic which enterprise activity are in Community (item 55, paragraph 2 of item 48 of the Contract).

Under "the Companies and firms" according to paragraph 2 of item 48 of the Contract the companies or the firms founded on the basis of civil or a commercial law, including commercial partnerships, and also other legal bodies regulated public or private law, except for the noncommercial are understood.

Thus the activity falling under regulation gl. 3 Contracts should have accurately certain time frameworks. The court of the European Communities has specified, that "from item 60 text (new item 50) the activity which is carried out on a constant basis or, in any case, without expected date of its termination follows, that, does not come within the purview of positions of the right of the Community, services concerning granting". [134]

Criteria of an estimation of temporariness of granting of services (duration, a regularity, periodicity, sequence) have been established by EU Court at legal investigation С-55/94 Gebhard. [135] In the same business the right of the person, rendering services has been confirmed, to supply itself with an infrastructure necessary for granting of services. However, as it is marked in the literature, these criteria nevertheless leave the big open space for interpretation. [136]

Time frameworks limit also stay of foreign addressees of services. For example, to foreign addressees of services, including tourists and the persons, wishing to receive medical services, the unimpeded access to a place of their granting, however time of their stay for state territories where these services it appear, limited to time of granting of these services is provided.

As a whole it is possible to notice, that the considered mode extends on:

1) the services given from territory of one country on territory another without crossing of border as the seller, and the buyer. The similar form of delivery of services in the General agreement on trade in services within the limits of the World Trade Organization is called as transboundary trade (cross-border trade);

2) the services given temporarily present foreign physical or legal bodies, on state territory where services are consumed.

It is necessary to notice, that GATS provides such form of delivery only for the physical persons, rendering service (presence of natural persons providing services);

3) the services given to the consumer from one member state in territory of other member state. GATS names the similar form of delivery of services consumption abroad (consumption abroad).

According to item 55 of the Contract, position of separate articles (item 45-48 item), regulating establishment and economic activities freedom, come under to application to the questions covered gl. 3 Contracts, regulating freedom of rendering of services. However the difference in legal regulation of these two freedom remains. For example, the court of the European communities has specified, that the state has not the right to demand from the persons using freedom of granting of services, full observance of the same rules which observance is required from the companies founded in this member state for granting of similar services [137].

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Accordingly, within the limits of realisation of freedom of the establishment, not coming within the purview of freedom of granting of services, it is necessary to consider granting of services within the limits of an independent mode.

2. A mode of trade in the services which are given within the limits of realisation of freedom of establishment and not regulated gl. 3 Contracts.

For the persons using freedom of establishment, additionals for activity realisation on rendering of services are provided. For example, the companies, the rendering services registered in territory of the concrete state, should be brought in the state register, that for persons, polzujushchih by freedom of rendering of services is not provided. So, the Court of the European communities has specified, that gosudarstvoyochlen service on its territories, their inclusions in the state register [138] have not the right to demand from the foreigners, rendering.

Accordingly, if in one cases freedom of establishment and freedom of rendering of services are combined within the limits of the general mode of trade by the services, provided for the activity covered by item 50 of the Contract in other cases rendering of services within the limits of establishment freedom causes existence of a specific general mode.

The contract provides an interdiction for restrictions of freedom of establishment of citizens of one member state for territories of other member state, including for restrictions of creation of agencies, branches, affiliated companies (ч.1 Contract item 43).

Freedom of establishment owing to Contract item 48 equally extends both on physical persons, and on the companies or the firms founded according to the legislation of any member state and the registered site, the central management and the basic which enterprise activity are in Community.

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According to ч.2 Contract item 43 "establishment Freedom should include the right to begin and continue activity as the person who are engaged in independent activity, and also to create and operate the enterprises, in particular, the companies or firms in value of the second point of item 48 on the same conditions, as established for citizens of that country where such establishment" is made. The second point of item 48 of the Contract excludes from sphere of action of freedom of establishment legal bodies of noncommercial character.

The considered mode is established for delivery of services by the way similar to volume which within the limits of GATS is called "as commercial presence at the country of granting of service" (commercial presence or right of establishment). But within the limits of EU the maintenance of this way of delivery of services by the companies is a little bit wider: it is not limited to the right to opening of branches, representations or the affiliated firms rendering services, and includes also the right free to transfer the location of the company from one state to another. However in practice the national legislation aspires to prevent freedom of carrying over of the location of the companies. As a result "till now to the companies it is completely guaranteed it is only right on creation in other state-participants of branches or affiliated companies according to Contract item 43, but not carrying over of own location." [139]

Establishment freedom assumes not only establishment on territories of participants of legal bodies or other forms of the organisations rendering services, but also free movement of the persons who are engaged in independent activity, i.e. businessmen.

Restrictions on freedom of establishment and on freedom of granting of services are provided item 45 item, 46, Contracts. These freedom cannot be used, if:

- Activity is connected, even is temporary, with performance of official duties. Thus each member state should make of the organisation the decision concerning definition of such activity;

- Activity contradicts use of positions, statutory, rules or the administrative actions providing a special mode for foreign subjects for the purpose of maintenance of a public order, the public safety or public health services.

Besides, actions of the persons using freedom of establishment, should not break the positions regulating movements of the capital (item 43).

3. A mode of trade in the services connected with movement of the capital, in particular bank and insurance, established within the limits of positions of the Contract on free capital account and payments.

Contract positions provide practically full freedom of movement of the capital and full freedom of payments.

Capital freedom extends on citizens of the third states and includes, first of all, direct investments, granting of credits, participation in business, maintenance of guarantees, placing of loans. Payments can be limited only within the limits of the measures accepted during conducting of uniform foreign policy (item 301). Since January, 1st, 1999 in EU the uniform currency operates.

Trade in financial services was always perceived as activity of high risk and actually all aspects of financial services traditionally were are subordinated to especial regulation in all member states [140].

Acceptance on June, 28th, 1973 Instructions of Council of EUROPEAN ECONOMIC COMMUNITY "About acceptance of the program concerning banks and other credit organisations" which, in particular, contained definitions of concept of bank and other credit organisations became the first step of creation of the uniform market of financial and bank services. And on present time of the organisation services in bank sphere using only those names which are specified in this Instruction can render.

In financial sphere the Principle of a mutual recognition (mutual recognition), directed on creation of equal guarantees (possibilities) for the banks founded in various EU member states when they carry out the activity in territory of any EU member state operates. Owing to the given principle competent bodies of host country of credit institute or its branch recognise requirements which are established for credit institute by the legislation in the country of its establishment, and undertake to abstain from imposing to such credit institute of additional standards which exist for the credit institutes founded in host country of given credit institute. The [141] Credit organisations having the licence of one of member states on realisation of bank activity, have the right to render freely bank services in EU territory to any physical and to legal bodies and to found branches and representations in all territory of EU without any restrictions.

The control over credit institution irrespective of a place of its finding and a place of rendering of services is carried out by the competent authorities of the state in which the credit institute has been created. The credit institute has the right to carry out the activity in the receiving state on the basis of the licence received by it in that state in which it has been created as the legal body (the establishment state) without necessity of additional licensing in the receiving state.

As to relations with the third countries they are under construction on following principles:

Sm VishnevskiiAA the Bank right of the European Union of studies the grant - M: the Statute, 2000 From 17-19.

1) for credit institutes of the third countries in any EU member state position more favorable, than for credit institutes from other EU member states should not be created;

2) credit institutes of Community should receive in territory of the third countries of possibility of business dealing and participation in a competition, equal to what credit institutes of the corresponding third countries had.

These principles have found the fastening in the First Instruction of Council of EUROPEAN ECONOMIC COMMUNITY 77/780/ЕЕС from December, 12th, 1977 "About coordination of the legislation, rules and the administrative positions regulating an order of the organisation and activity of the credit organisations" [142] and the Second instruction of Council 89/646/ЕЕС from the December, 15th, 1989 [143], making changes and additions in the First instruction.

In the Appendix to the Second instruction operations in which relation the principle of a mutual recognition operates are listed, thus the Instruction extends not only on credit, but also on other persons who actually carry out the specified bank operations.

The minimum standards to which there should correspond modes, are stated in the Second bank instruction and include: requirements of the starting capital, disclosing of the basic shareholders of credit institution, restriction on the size of participation in not financial operations, standard factors platezhnosti and admissible activity. Thus, the "minimum" regulating coordination is very essential degree of the coordination ". [144]

Special regulation within the limits of EU was received by investment services. In particular, according to the Instruction of Council from May, 19th, 1993

"About investment services in sphere of securities" [145] following kinds of activity are regulated: granting of broker services; realisation of securities transactions on its own behalf; the vigorous activity on a securities market, influencing its formation; granting or the offer of insurance services at transactions with some kinds of securities; granting of professional consultations concerning investments; storage and management of a package of some kinds of securities.

If investment services appear the credit organisation additional licensing it is not required. [146] Instruction of Council 93/6/ЕЕС from March, 15th, 1993 "About sufficiency of the capital of the investment and credit organisations" [147] contains requirements to the minimum size of the charter capital of the specified organisations.

4. A mode of trade in the services, provided by the positions concerning free movement of the goods.

In some cases trade in services falls under a mode provided for trade by the goods. It occurs when services are so closely connected with the goods, that independent regulation of their granting is either impossible, or inexpedient. Here it is necessary to pay attention that within the limits of EU any quantitative restrictions are forbidden and transit freedom operates. Any interdictions or restrictions are possible only for reasons of public morals, the public policy and state security, protection of health, a life of people and animals or preservations of plants, protection of national treasures, the industrial and commercial property. Thus such prohibitions or restrictions should not be means of any discrimination or the disguised restriction in trade between member states (item 30).

5. A trade mode transport services (section of V Contract). Trade in transport services is regulated by the special

The rules established by the European parliament and Council within the limits of the transport policy of EU.

Contract item 71 it is provided, that Council after consultations of Economic and social committee and Committee of regions, establishes:

- The general rules applied to the international transport transportations, carried out from territory or directed on territory of member state, or crossing territory of one or several member states;

- Conditions on which the non-residents who are carrying out transport services, can render them in territory of member state;

- Measures on increase of safety of transportations;

- Any other appropriate measures.

It is provided, that at transportations in Community any discrimination consisting in application by the transport organisations of different tariffs and different conditions at transportations of the same goods on the same transport ways depending on country of origin or appointments of the transported goods should be eliminated.

It is necessary to notice, that in EU the set of the normative acts, concerning separate types of service operates: in the field of insurance, tourism, transport, telecommunications, services of the lawyer, etc.

Especially it is necessary to pay attention that protection of the rights of consumers of services within the limits of EU is carried out at high level. The rights of the foreigner to which the damage as a result of sale has been caused it of service, completely uravneny with the rights of citizens of the corresponding state. "In its advantage all norms of the national legislation concerning compensation, damage indemnification" [148] operate.

Thus, the primary goal of integration development within the limits of EU is formation of the unified economic space in which all physical and legal bodies would be laid down in equal conditions irrespective of the natsionalnoyogosudarstvennoj accessories.

EU formally is not a member of the World Trade Organization, however has the status of independent territory with the uniform import tariff that gives the chance to EU Commission to defend interests of the states of EU in all executive structures of the WTO. [149]

Certain interest represents that fact, that all EU member states even before its formation were parties GATT and EU Court has enacted, that GATT as the international agreement in which all member states participate, is a part of legal system of the Community acting as the assignee of the rights and obligations of member states under the Agreement. However, as it is marked in the literature, the certificates accepted both on state, and on nadnatsionalnom level, break requirements about conformity to legal parametres of multilateral system, promoting practice of discrimination of non-European importers of the goods, works, services; the methods used by EU member states, frequently contradict a principle opened regionizma [150].

EU actively participates in a new round of negotiations on GATS, begun in January, 2000 It is necessary to note “the European forum of services” which represents process of consultations concerning negotiations on GATS.

Thus, within the limits of EU liberalisation of trade by services has reached high level. Nevertheless, this process was long enough and uneasy, first of all because of backwardness of legal regulation of freedom of movement of services. The big role in the course of liberalisation of sphere of services the Commission and, especially, Court of the European communities have played, correlating the measures entered by the state with such "the tool of market integration", as a proportionality principle. [151] as EU Court is marked in the literature, thanks to the case law has not simply restored to life or has extended existence of instructions and norms of articles of incorporation and the secondary right of EU, but also has inhaled in them a life, using a wide arsenal of traditional and new methods of interpretation and application is right [152]. Therefore it is possible to tell, that experience of liberalisation of trade by services within the limits of EU is unique, in one other integration association the conditions promoting development of sphere of services at the same level are not created.

2.2.2.

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A source: Dubinkina Svetlana Nikolaevna . Mezhdunarodno-pravovoe regulation of international trade by services. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2007

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