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This chapter reviews methods used to identify and quantify barriers to international trade in services. Barriers typically take the form of regulations that either restrict supply or make it more costly. The economic impact of barriers can, in principle, be quantified as a ‘tariff equivalent’, defined as the percentage tax on foreign suppliers that would have the same effect on the domestic market for the service as is caused by the barrier. Barriers to trade in services can be those that restrict entry of firms versus those that affect firms' operations, and those that discriminate against foreign-service providers versus those that do not. The measurement of services barriers are either direct or indirect. Direct measurement involves documenting barriers that are known to exist, either by extracting information about them from government documents or by questioning those market participants who confront them. Indirect measurement attempts to infer the presence of barriers from their market effects, much as non-tariff barriers on trade in goods are often inferred from price differences across borders. Approaches to measuring services barriers are illustrated by citing a number of studies that have been carried out. The chapter concludes with a presentation of guideline principles and recommended procedures for measuring services barriers and assessing the consequences of their liberalization.

Ever since the publication of the General Programmes of 1962, regulating the internal market for services has been a riddle for the EU. In its effort to open up trade in services, the EU legislature has tried and erred — with occasional successes — in various ways. Traditionally, a basic distinction is drawn between, on the one hand, sector-specific and, on the other hand, horizontal legislation. Helpful as it may be, this distinction is neither accurate nor historically precise. This chapter describes the basic regulatory blocks adopted by the EU legislature, and then subjects them to more appropriate normative classifications.

The legal rules applicable to the free provision of services in the EU cannot be explored without an extensive examination of the case law. Such a study is necessary not only to trace the evolution of the application of the various rules and principles, but also to determine the precise content of the legal rules applicable in this field of EU law. This is the object of this chapter. Looking into the Court's case law, one may identify several broad service categories in which the numerous Court of Justice of the EU judgments build up an important body of regulatory principles and, even, introduce specific rules. Although the process is gradual and, at times, erratic, the ensuing judge-made ‘regulation’ is often as detailed as regulation through legislation. Indeed, judge-made rules in some areas serve as a substitute to legislation, while in others they complete the legislation in place; taxation being a special case. The positivist sector-specific presentation is followed by some more horizontal and normative considerations concerning the role of secondary legislation and the fields in which it could develop in the near future.

This chapter discusses the technologies, market structure, and licensing process of cellular mobile services. It elaborates the interconnection and quality of service regulation, mobile number portability, and emerging virtual network operations. Further entry of operators beyond four or five does not significantly increase the competitiveness of the market. The decrease in Average Revenue per User (ARPU) along with competition makes it financially difficult for the operators. Mobile operators in India pay about 30–5 per cent as taxes. The quality of service (QoS) is a concern and almost all the mobile operators are still struggling to meet the benchmark standards. The Value-added Services (VAS) market in India contributes to about 10–14 per cent of the total revenue of the mobile telecom service providers. Chinese companies have much higher returns on capital employed, 22.87 per cent, compared to Indian mobile operators who have returns of only about 7.83 per cent.

This chapter delves into the legal definition of services under EU law, by examining the core question: ‘What is in a market’? It also looks at how the boundaries between market and non-market activities are drawn within the EU. The chapter is organized as follows. Section A examines the political debate about the contours of the concept of services of general interest, non-economic by nature, and their opposition to services of general economic interest. Section B considers the various techniques followed by the Court in order to accommodate the application of the Treaty rules to certain activities which may not, as a matter of fact, be provided within the market.

This chapter discusses the concept of the restrictions to the free provision of services. Regulation is not an end in itself; it is only desirable to the extent that it is necessary for the achievement of a further end. Chapter 1 indicated several reasons justifying regulation. In addition to those reasons, there is yet another which is specific to the EU context: the need to eliminate restrictions to the operation of the internal market. This is achieved through regulation at the EU — and not the member state — level. Accordingly the identification of restrictions to the free movement of services within the EU, generated by national measures, becomes a fundamental aspect of understanding the EU's regulatory activity in the field. Once the legal basis of the ‘right to regulate’ is thus grounded, it becomes crucial to explore the main qualitative characteristics of restrictions, in order to assess, at a later stage, the regulatory means that are best suited to tackle them.

The regulation of services can be viewed in a new light, given the recent developments of ‘new governance’ and ‘better regulation’ in the EU. New governance is a broader concept than better regulation, since it also encompasses non-regulatory means of pursuing policy objectives, but both are interconnected. This chapter presents with some speculative thoughts on the way ‘new governance’ could be effectively used in order to promote trade in services. One of the most tangible effects that ‘new governance’ and ‘better regulation’ have had in the field of services, has been the injection into — or, the emasculation of — the Classic Community Method with instruments aimed at the realization of new governance objectives. Contrary to the general assumption, new governance does not necessarily translate into soft law, but may alternatively have the effect of rendering the law ‘softer’, by making it more flexible and evolutive, and by entrusting its application to open-ended processes.

This chapter explores how private regulation has been used for regulating services and examines the limitations thereof. It identifies two trends where private regulation plays a particularly important role, especially in the form of professional and disciplinary rules. On the one hand, the EU tends to promote private regulation as an alternative to EU regulation. At the same time, however, the EU is quite sceptical towards rules spontaneously adopted by private actors.

This chapter discusses the justifications for restrictions to the free provision of services. Chapter 3 observed that the overwhelming majority of restrictive measures brought to the attention of the Court are prima facie found to violate the Treaty rules on services. This, however, does not lead the Court to strike systematically down all national measures. That is because many of the measures with protective effects pursue legitimate interests at the same time. Nevertheless, the existence of a legitimate interest does not automatically lead to the absolution of the national measure in question, but is subject to the principle of proportionality. The Court follows a two-prong test, first inquiring into the interest pursued, and then examining whether the restrictive measure is justified.

This chapter turns to non-regulatory means of regulating services, such as the Open Method of Coordination, the powers given to various EU agencies, to national regulatory authorities, and to networks thereof.

To gain a deeper analysis of the process of rule making by financial services regulators and their manner of using rules, it is important to take into account the institutional context in which the regulators operate. This will allow a description of their formal powers and provide understanding of the regulatory structure's dynamics and the tensions and frictions that have influenced the rule making process and rule use. Hence, this chapter investigates the development of the structure, Gower's blueprint for reform, and how unrelated events ensured that his proposals have been used and have addressed unforeseen issues. A characterisation of the resulting structure is developed, and the importance of the characterization in current arguments on the nature of the structure is discussed.

This chapter summarizes the previous chapters and gives an insight into future directions. It discusses the general characteristics of EU regulation of services, cross-border trade of services (mode 1, GATS), movement of natural persons (mode 4 GATS), and consumption abroad (mode 2 GATS).

Since the 1970s, deregulation has increased the number of rules under which trucking operates. Instead of regulating freight, the Federal Motor Carriers Service Association (FMCSA) regulates individual truckers, micromanaging their working hours, their sleep, their speed, and their health. These regulations proceed under the guise of public safety but are actually motivated by corporate profit.

This chapter examines how rules have been used in financial services regulation and their implied nature of limitations and trade-offs required in rule formation, and seeks to gain a deeper understanding of the rule making decision. The process of rule making is found to be better understood by understanding policy making, organizational and bureaucratic decision making, and the nature of rules, their limitations and potential. However, it is imperative that the issue of the strategic use of rules is separated from the contextual limitations of the rule maker. In developing a theory of making rules for regulation, considering rule making as a form of both policy making and organizational or bureaucratic decision making is suggested. The nature of rules should also be seen as an important aspect of decision making, differentiating it both from generalized policy making and from individualized discretionary decision making.

The global financial crisis, which began in 2007 with the collapse of the US sub-prime mortgage market, delivered a major shock to the existing architecture for financial services regulation and supervision. The European Union (EU) was one of the jurisdictions most severely hit by the crisis, prompting an intense debate on the revision of existing rules and the adoption of new regulatory measures. This chapter examines the main issues faced by the EU during the crisis, its short-term response (crisis management), and its medium-term regulatory response. Finally, it teases out the main cross-border externalities and collective action problems evidenced by the crisis and the EU response to it, asking whether the EU is now ‘governance ready’ to face future financial crises.

Several potential techniques on how to use rules can be developed to deal with the limitations of rules, based on a theoretical study and interpretation of rules. The strategies may be the use of various types of rules, structuring the condition in which rules are applied or modifying the way rules operate. Although the analysis and proposals in this chapter are not limited to the use of rules in regulating financial services, an analysis suggests that rule makers in financial services have adopted two of the proposed rule use, rule type and interpretive communities development. The analysis also reflects that the reasons for rule use could go beyond addressing rules' limits. Different rule types have been adopted by regulators to achieve various goals, and the issue of how rules should be used has at times been a concern of regulatory policy.

This chapter focuses on the potentials and challenges posed by the utilization of machine learning algorithms in the regulation of public services, that is services supplied by or on behalf of government to a particular jurisdiction’s community, including healthcare, education, or correctional services. It argues that the widespread enthusiasm for algorithmic regulation hides much deeper differences in worldviews about regulatory approaches, and that advancing the utilization of algorithmic regulation potentially transforms existing mixes of regulatory approaches in non-anticipated ways. It also argues that regulating through algorithmic regulation presents distinct administrative problems in terms of knowledge creation, coordination, and integration, as well as ambiguity over objectives. These challenges for the use of machine learning algorithms in public service algorithmic regulation require renewed attention to questions of the ‘regulation of regulators’.