This chapter deals with the relationship between EU law and national rules on limited rights. It focusses on services of general interest (SGIs), given that limited rights play an important role in national policies guaranteeing the provision of SGIs. The central question is which discretion the Member States have when granting limited rights in order to ensure access for all to SGIs under EU internal market and competition law. Are the choices they have to make dictated by EU law or may observations of national law play a considerable role? This chapter starts with discussing which SGI fall within the scope of the EU internal market and competition rules. Then, it examines which obligations are imposed by these rules on the Member States. Subsequently, it explores to what extent the Member States may derogate from these obligations. Attention is paid to, for example, the transparency principle.

Services are the largest part of modern economies, but often highly regulated, making cross-border service activity hard to achieve. Sometimes, as in the case of abortion, healthcare, education or gambling, they have an important social, redistributive or moral aspect which makes liberalisation of cross-border services politically sensitive. Yet the Court of Justice’s case law is very far reaching, treating any measures which hinder or make less attractive the provision of cross-border services as prohibited unless they can be justified. This applies not just to the State, but to any body restricting market access, including trade unions concerned to exclude low-cost competition from posted workers. Much of this case law has been codified in the Services Directive, which also addresses freedom of establishment, but the Directive has so many exclusions that Article 56 of the Treaty on the Functioning of the European Union and the case law remain important, as does sector-specific legislation such as that on free movement of patients.

Article 45 and Article 49 provide for the free movement of workers and self-employed people, and the free movement of companies, throughout the EU. To overcome discrimination, legislation has been adopted addressing the rights of workers concerning matters such as tax, social advantages, languages, the mutual recognition of qualifications and requiring even private employers and social partners to treat all EU citizens equally. The case law goes even further than this, addressing all kinds of measures which discourage cross-border pursuit of an occupation, something which has had a great impact on professional football and its restrictive transfer rules. European company law has been similarly turned upside down by ruling in Centros that companies can choose their state of incorporation, a decision which led to the death of the real-seat theory of company law.