Diritto Pubblico Comparato ed Europeo

Sommario

1. Premessa: il nuovo testo della direttiva sui servizi e la sua possibile incidenza sui diritti fondamentali. – 2. Il ruolo della Carta dei diritti fondamentali dell’Unione europea. – 3. L’ipotesi in cui l’applicazione della direttiva incida su diritti fondamentali. – 4. L’ipotesi in cui il contrasto si verifichi con un diritto fondamentale riconosciuto nell’ambito di uno Stato membro.

Abstract

The so called Bolkestein directive was approved by the Council in July 2006, and is now undergoing a second reading by the European Parliament. Art. 1.7 establishes that the directive does not affect the exercise of fundamental rights protected by both Member States andCommunity law. The reference to the Charter of Fundamental Rights of the European Union was proposed by the European Commission in April, but the Council eliminated it. The Charter is now mentioned only in the Preamble. Such an omission clearly shows that the Council wants to avoid formally recognizing the Charter as a legal source. The Charter would be particularly relevant in the context of this directive on services; in fact the Charter also encompasses some important social rights. Nonetheless, Art. 1.7 also reflects the recent case law of the Court of Justice (particularly evident from the Schmidberger and Omega cases), according to which fundamental freedoms granted by the EC Treaty can be derogated by Member States laws protecting fundamental rights. Art. 1.7 does not grant protection of fundamental rights recognised by a single Member State. However a certain degree of protection can be granted by recalling “public policy”, or “overriding reasons relating to public interest” recognised by the Treaty, by the case law of the Court of Justice and by the directive itself. Therefore restrictions of freedom to provide services can be justified on these bases.