Liberalisation of Service Mobility in the EU’s International Trade Agreements: As External as it Gets

In: European Journal of Migration and Law
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  • 1 European University Institute, Badia Fiesolana, Via dei Roccettini 9, I-50014 San Domenico di Fiesole (FI), Italy

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Abstract

The concept of the EU single market logically implies the adoption of a common external position on matters which it is primarily concerned with. In respect of goods and capital, such a position has gradually been formulated. With regard to people and services, national priorities continue to prevent the adoption of a united stance externally. Concentrating on the EU’s commitments under the WTO’s GATS Agreement, this article explains how the lack of a common position is due to the incomplete harmonisation of the internal market. This is especially evident in the case of the so-called ‘Mode 4’ that regulates the cross-border movement of natural persons supplying services. As long as the internal market is incomplete, the EU’s offer in respect of service trade negotiations remains fragmented along national lines. A single EU offer also poses the risk that the lowest common denominator becomes the basis of the EU’s common position.

  • 5)

    J. Bast (2008), ‘Commentary on the Annex on Movement of Natural Persons Supplying Services Under the Agreement’, in: R. Wolfrum, P.-T. Stoll and C. Feinäugle (eds), WTO – Trade in Services, Leiden: Martinus Nijhoff, pp. 573–595, at p. 587. Non-permanent access to the employment market is, however, covered to the extent that such employment takes place within a commercial establishment (e.g., subsidiary) of the same group that is employing the transferred employee in the state of origin (ICTs).

  • 6)

    A. Carzaniga (2003), ‘The GATS, Mode 4, and Pattern of Commitments’, in: A. Mattoo and A. Carzaniga (eds), Moving People to Deliver Services, World Bank and Oxford: Oxford University Press, pp. 21–26, at p. 24. Carzaniga notes that WTO Members have also generally committed less than the access granted in practice.

  • 7)

    R. Leal-Arcas (2010), ‘The GATS and temporary migration policy’, in: M. Kolsky Lewis and S. Frankel (eds), International Economic Law and National Autonomy, Cambridge: Cambridge University Press, pp. 193–215, at pp. 207–209.

  • 9)

    P.-C. Müller-Graff (2008), ‘The Common Commercial Policy enhanced by the Reform Treaty of Lisbon?’, in: A. Dashwood and M. Maresceau (eds), Law and practice of EU external relations: salient features of a changing landscape, Cambridge: Cambridge University Press, pp. 188–201, at p. 190.

  • 18)

    M. Bungenberg (2010), ‘Going Global? The EU Common Commercial Policy After Lisbon’, in: C. Herrmann and J.P. Terhechte (eds), European Yearbook of International Economic Law 2010, Heidelberg: Springer, pp. 123–151, at p. 132.

  • 20)

    Müller-Graff, supra note 9, p. 200.

  • 21)

    Bungenberg, supra note 18, p. 133. In fields such as social policy, health and culture intra-EU harmonisation is largely absent or impossible.

  • 24)

    Article 79(5) TFEU. See G. De Baere (2011), ‘The Basics of EU External Relations Law: An Overview of the Post-Lisbon Constitutional Framework for Developing the External Dimensions of EU Asylum and Migration Policy’, in: M. Maes, M. Foblets and P. De Bruycker (eds), External Dimensions of European Migration and Asylum Law and Policy / Dimensions Externes du Droit et de la Politque d’Immigration et d’Asile de l’UE, Brussels: Bruylant, pp. 121–174, at p. 172.

  • 30)

    In 1999, the Commission proposed such an extension and put forward an “EC service provision card” which would have facilitated the movement of TCN service providers in the EU. Proposal for a Council directive extending the freedom to provide cross-border services to third-country nationals established within the Community, COM (1999) 3 final.

  • 33)

    M. Krajewski (2008), ‘Of Modes and Sectors: External Relations, Internal Debates, and the Special Case of (Trade in) Services’, in: M. Cremona (ed.), Developments in EU External Relations Law, Oxford: Oxford University Press, pp. 172–215, at pp. 198–199. See also Langhammer who notes that given the significant amount of national sovereignties that remain in the services trade amongst EU Member States, the EU is not yet even a free trade area: R.J. Langhammer, ‘The EU Offer of Service Trade Liberalisation in the DOHA Round: Evidence of a Not-Yet-Perfect Customs Union’, 43 Journal of Common Market Studies (2005), 311–325, at p. 311.

  • 41)

    Krajewski, supra note 33, p. 173.

  • 47)

    Langhammer, supra note 33.

  • 49)

    Langhammer, supra note 33, pp. 318–319.

  • 51)

    Bertola and Mola, supra note 43, p. 325.

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