5. Freedom Of Establishment Flashcards
Reyners v Belgian State
Art 49 has direct effect
AG provides definition of official authority for the purpose of Art 51
Power of enjoying the prerogatives outside the general law
Powers of coercion over citizens
Privileges of official power
Jany v Staatssecretaris van Justitie
Self -employment defined as no subordination, under person’s own responsibility, for remuneration
Ministre public v Auer
Art 49 doesn’t apply where citizen returns home after having obtained qualifications in another MS
Here French vet trained in Italy practising vocation in France
Knoors v Secretary of State for Economic Affairs
Art 45 doesn’t apply to Dutch plumber trained in Belgium working in Netherlands
Thieffry
Belgian with Belgian legal qualifications
Recognised by French university as equivalent to French qualification
Paris Bar refuses him admission to training stage of avocat
Indirect discrimination in breach of Art 45
Principle of imperative requirements first established
Gebhard
German working as lawyer in Milan
Disciplined by Milan Bar for using title avvocato without formal recognition of qualifications
Held that national measures that are liable to hinder or make less attractive freedom of establishment constitute a restriction
Four conditions for imperative requirements
- Must be applied in non-discriminatory manner
- Must be justified by imperative requirements in general interest
- Must be suitable for obtaining the objective which they pursue
- Must not go beyond what is necessary to obtain that objective
Commission v UK (Open Skies)
UK-US aviation agreement doesn’t qualify for Art 52 (public security) derogation - threat must be sufficiently serious and there must be a causal link between it and the measure adopted to deal with it
Klopp
Rule preventing members of Paris Bar from maintaining offices in other MS held to be disproportionate and so doesn’t qualify as imperative requirements
Segers
Freedom of establishment for companies applies to branches and subsidiaries
Means company can incorporate in one MS even if has no intention of trading there and then do all its business in another through the branch
Centros v Erhvers-og Selkabsstyrelsen
Danish nationals incorporating company in UK for circumventing more stringent minimum capital share requirements held not to be abusing Art 49
Überseering BV v Nordic Construction Company Beaumanagement
Company incorporated in Netherlands with central admin in Germany
German law doesn’t recognise capacity of company incorporated outside Germany, so can’t bring proceedings against contractor
Held to be in breach of Art 49
Commission v Italy (Italian Housing)
Public housing assistance for Italians held to breach Art 49 as undermines freedom of edtablishment
UNECTEF v Heylens
Must be objective basis for any limitation by MS on principle of mutual recognition
Vlassopoulou
Greek lawyer working in Germany - application to German Bar refused on grounds lacks qualifications
Authorities have obligation to compare knowledge of applicant to requirement of qualification
Fernandeza de Bobadilla v Museo Nacional del Prado
Spanish with UK qualification who has worked for Prado in temporary contracts
Prado ideally placed to assess applicant’s knowledge so no right to discriminate
Principle of mutual recognition of qualifications can be relied on by a national of a MS in his own state
