5 & 6. Free Movement of Persons and Services

Question 1

Importance of Free Movement of Workers

Answer 1

• Core EU principle
• One of the four freedoms of the internal market
• Vital for the internal market
• Gropes beyond the ‘market citizen‘ towards a system of fundamental rights and citizenship
• The TFEU prohibits all kinds of restrictions by Member States
• Free movement entails the abolition of any discrimination based on nationality between the citizens of the Member States

Question 2

Who is a worker (free movement of workers)?

Answer 2

• Not defined in Art 45 TFEU
• All employees (as opposed to self-employed persons), not only “blue-collar workers” (“community meaning”)
• Employment relationship (receives remuneration)
• All kinds of effective and genuine economic activity,
regardless of the level of wages (part-time, fixed-term…)

Question 3

Exceptions ART. 45 - free movement of workers

Answer 3

• Public Service exemption
• Proportionality test - The fact that one MS imposes less strict rules than another MS does not mean that the latter‘s rules are disproportionate and hence incompatible with EU law

Question 4

Importance of Freedom of Establishment:

Answer 4

• Core EU principle
• One of the four freedoms of the internal market
• Vital for the internal market
• Protects both self-employed persons (individuals) and legal persons (e.g. companies)
• The TFEU prohibits most kinds of restrictions by Member States

Question 5

What is a typical problem of Self-employed Persons (freedom of establishment)? and what is the solution?

Answer 5

• National laws on

1) Rules of professional conduct
2) Professional qualifications

➢ Solutions
• Mutual recognition of qualifications
• Harmonisation

Question 6

What is a typical problem of legal persons (freedom of establishment)?

Answer 6

• Transfer of the company’s seat

Question 7

Does EU Law differentiate between the employed and the self-employed?

a) No
b) Yes

Answer 7

b

Question 8

Art 45 TFEU provides broad freedoms to:

a) Employment in the public sector
b) Part-time workers
c) Job seekers
d) Migrant workers

Answer 8

b, c and d

Question 9

Do the EU laws regarding the right of establishment apply equally to self-employed persons and companies/firms?

a) Yes
b) No

Answer 9

a

Question 10

Do the EU laws regarding the right of establishment apply equally to self-employed persons from a Member State and self-employed persons from a third country?

a) Yes
b) No

Answer 10

b

Question 11

Importance of Free Movement of Services:

Answer 11

• Core EU principle
• One of the four freedoms of the internal market
• Vital for the internal market
• Includes both, freedom to provide services and
freedom to receive services (though the latter is not
mentioned in Art 56 et seq TFEU)
• The TFEU prohibits all kinds of restrictions by Member States
• However, the state of origin principle (as enshrined in
the Bolkestein initiative) was not fully implemented in
Dir. 2006/123/EC

Question 12

Main differences between freedom of services and freedom of establishment

Answer 12

1) permanent installation
» FoE: +
» FoS: -

2) duration
» FoE: high
» FoS: low

3) frequency
» FoE: high
» FoS: low

4) continuity
» FoE: high
» FoS: low

Question 13

Exception Free Movement of Services:

Answer 13

• Public policy
• Public security
• Public health
➢ Same meaning as in Art 45(3) TFEU
➢ Details in Art 27 – 33 Dir. 2004/38/EC
➢ Proportionality test!

Question 14

Is tourism a service? explain with an example

Answer 14

Tourism is a service and tourists (as recipients of services)
are entitled to equal treatment, e.g. visit a museum and not pay higher entry fees than national citizens.

Question 15

Freedoms are directed almost exclusively against interferences by _____

Answer 15

Member States

Question 16

The ECJ recognizes that freedom of persons also may

be restricted by ______

Answer 16

associations and private companies

Question 17

Difference between direct and indirect discrimination (free movement of persons)

Answer 17

Direct Discrimination
Discrimination based on:
➢ Nationality (Art. 18 TFEU)
or
➢ Race
➢ Ethnic origin
➢ Religion
➢ Disability
➢ Age
➢ Sexual Orientation
➢ Sex
➢ Etc.

Indirect Discrimination
• Discrimination based on neutral criteria which are not formally prohibited
• But in effect could put protected persons at a disadvantage or be protectionist
➢ Example: Minimum height requirement for a job

Question 18

Bosman case:

Answer 18

• In 1990 the football club Liégeois demanded an incredibly high transfer fee after Bosman declined to renew his contract
• Also: Restriction on the number of foreign players
• This was in accordance with UEFA rules
➢ No club was willing to pay such a high transfer fee even though they were interested in Bosman

Decision of the ECJ, 1995:
• Transfer fees were incompatible with the free movement of persons (Art. 45)
• Restrictions on number of players constituted discrimination on grounds of nationality (Art. 18)
➢ Companies can also restrict freedom of persons

Question 19

Case Checklist Freedom of Persons and Services

Answer 19

1) is it a NATIONAL MEASURE?

2) is it:
2.1) REFUSAL OF ENTRY/EXPULSION?
• movement of person&raquo_space; art. 21
• movement of worker&raquo_space; art. 45
• self employed person (or company)&raquo_space; art. 49
• movement of service&raquo_space; 56
» saved only by: derogation + fundamental human rights (public health…) + proportionality

2.2) DIRECT DISCRIMINATION?
• movement of person&raquo_space; art. 21
• movement of worker&raquo_space; art. 45
• self employed person (or company)&raquo_space; art. 49
• movement of service&raquo_space; 56
» saved only by: derogation + fundamental human rights (public health…) + proportionality

2.3) INDIRECT DISCRIMINATION?
• movement of person&raquo_space; art. 21
• movement of worker&raquo_space; art. 45
• self employed person (or company)&raquo_space; art. 49
• movement of service&raquo_space; 56
» unless justified by public interest req. or express derogation + fundamental human rights (public health…) + proportionality

2.4) NON-DISCRIMINATION?
• does the measure prevent or hinder market access?
» YES: (bosman case) art. 45, 49, 56 or 21
» NO: art. 45, 49, 56 or 21

Question 20

Which Article in the TFEU provides a definition (though incomplete) for services?

a. Art. 61
b. Art. 62
c. Art. 57
d. Art. 56

Answer 20

c

Question 21

Which of the following is not an exemption provided by Art. 52:

a. Public health
b. Public security
c. Public morality
d. Public policy

Answer 21

c

Question 22

The Bosman Case established that:

a. Companies can also restrict freedom of persons
b. EU laws only apply to the EU member states

Answer 22

a

Question 23

Art. 62 in the TFEU establishes:

a. That Art. 51 – 54 also apply to services
b. The freedom to receive services

Answer 23

a