Paradoxes of convergence : European standardisation of services and its impact on private law

Abstract

This thesis analyses European standardisation of services and its impact on private law. It tells a story of two paradoxes. First of all, the EU – in particular, the European Commission – would like European standardisation of services to improve the internal market for services. However, it is not actually taking any steps to guarantee that European standardisation of services facilitates free movement of services. With the New Approach for goods, European standardisation of goods has been made a tool for internal-market building. Such a regulatory approach has not been developed for European standardisation of services. As a result, it is difficult for the EU to exercise control over the reasons of stakeholders to start working on European services standards. An analysis of European standardisation in the healthcare and tourism sectors shows that parties start making European services standards for various reasons, which often have little to do with the improvement of the internal market. Therefore, the Commission cannot rely on European standardisation as a regulatory strategy to improve free movement of services. Secondly, because there is no European regulatory framework in which European services standards play a clear role, the parties which make European services standards become responsible for their application in law. They want their standards to play a role in private law – in particular, in contract law and in certification schemes. However, although stakeholders want European services standards to be applied in private law, they do not really care about the requirements which are imposed by private law. European services standards are not adopted in a legal vacuum – they regularly interact and clash with existing legal regulation. There is a real risk that European services standards might contain provisions which breach the free movement and competition law provisions. This will prevent their successful application in private law.