Keywords
Summary

Keywords

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1. Freedom to provide services ° Treaty provisions ° Scope ° Services offered by telephone to potential recipients in other Member States ° Included

(EEC Treaty, Art. 59)

2. Freedom to provide services ° Treaty provisions ° Scope ° Services provided from one Member State to another without the provider' s moving ° Included

(EEC Treaty, Art. 59)

3. Freedom to provide services ° Restrictions ° Prohibition ° Scope ° Measures applicable without distinction in the Member State where the provider is established ° Included

(EEC Treaty, Art. 59)

4. Freedom to provide services ° Restrictions ° Concept ° Prohibition of cold calling potential clients in other Member States by telephone ° Included

(EEC Treaty, Art. 59)

5. Freedom to provide services ° Restrictions ° Prohibition of cross-border cold calling by telephone for services linked to investment in commodities futures ° Justification by public-interest reasons ° Maintaining the good reputation of the financial sector of the Member State laying down the prohibition ° Proportionality of the prohibition ° Permissible

(EEC Treaty, Art. 59)

Summary

1. The prior existence of relations between a provider and an identifiable recipient of services is not a condition for application of the provisions on the freedom to provide services. On a proper construction, therefore, Article 59 of the Treaty applies to offers of services which a provider makes by telephone to potential recipients established in other Member States.

2. On a proper construction, Article 59 of the Treaty applies to services which a provider supplies without moving from the Member State in which he is established to recipients established in other Member States.

3. Article 59 of the Treaty covers not only restrictions laid down by the State of destination but also those laid down by the State of origin, even if they are generally applicable measures, are not discriminatory and neither their object nor their effect is to put the national market at an advantage over providers of services from other Member States.

4. A prohibition against telephoning potential clients in another Member State without their prior consent can constitute a restriction on freedom to provide services since it deprives the operators concerned of a rapid and direct technique for marketing and contacting clients.

5. It is a restriction on freedom to provide services for a Member State to prohibit financial intermediaries established there from contacting potential clients in another Member State by telephone without their prior consent to offer them services linked to investment in commodities futures, but the restriction is justified by the imperative reason of public interest consisting in maintaining the good reputation of the national financial sector. The smooth operation of financial markets is largely contingent on the confidence they inspire in investors, which depends in particular on the existence of professional regulations serving to ensure the competence and trustworthiness of financial intermediaries. By protecting investors from a method of canvassing which generally catches them unawares, the prohibition of cold calling on a market as speculative as that in commodities futures seeks to secure the integrity of the national financial sector.

Since the Member State from which the unsolicited telephone call is made is best placed to regulate the canvassing of potential clients who are in another Member State, it cannot be complained that the former Member State does not leave that task to the Member State of the recipient. Moreover, the restriction at issue cannot be considered excessive since it is limited to the sector in which abuses have been found and to only one of the possible methods of approaching clients.