6 - Freedom to Provide Services Articles 55-62 TFEU Flashcards
What do articles 56 to 62 TFEU govern?
- Freedom to provide services
When is Article 56 TFEU engaged?
- When no physical presence is required by the provider of the service in the MS of the recipient of the service, or the presence is only required on a temporal basis.
What freedoms does article 56 TFEU grant, and to who?
- Grants the rights for nationals of MS of the EU
- To provide services within the EU
- Without restriction
- This also covers self employed persons.
How do Article 62 and Article 56 interlink?
- Article 62 applies article 52 to all matters covered by the freedom to provide services.
What does someone have to be to be covered by Article 56 TFEU?
- Provider of services must already have a place of establishment within the EU
- Must be a national of a Member State
What are the general rules in Article 56 TFEU supplemented by?
- Supplemented by Article 59 TFEU
- Which provides for directives to be issued
- For the purpose of liberalising a particular service
- Power to issue directives for mutual recognition of professional qualifications is also made applicable to the freedom to provide services by Article 62 TFEU.
Which case states that Article 56 TFEU has direct effect?
- Van Binsbergen v Bestuur van de Bedrijfsverenging voor de Metaalnijverheid 1974
- Restrictions on freedom to provide services should have been abolished by end of the transitional period - so requirement had become unconditional since that date.
Which 4 activities / services are included in Article 57 TFEU which come within the scope of Article 56?
Activities of... 1. Industrial character 2. Commercial character 3. Craftsmen The professions
Society for the Protection of Unborn Children v Grogan
- Held: medical termination of pregnancy performed for renumeration in accordance with law of MS
- Constitutes a service
Jany v Staatssecretaris van Justitie
- Courts declined to take part in moral assessment of prostitution
- Held: prostitution is capable of being a service.
How does article 57 TFEU define services?
- Those normally provided for renumeration
- Can be paid by a third party - does not need to be paid by person who is getting the service
Deliege v Ligue Francophone de Judo et Disciplines Associees ASBL
- Argued that her local judo association was frustrating her career.
- Argued that their actions / rules restricted her ability to provide a service under Article 56 TFEU
- Held: sporting activities may fall within the scope of Article 56 even if this service is not paid for by those for whom they are performed.
- First case to find that remuneration could be paid by a third party - e.g. the organiser of competition/ sponsors
- Held to be sufficient that athlete participates in a competition in another MS.
Which case held that service provided must be a genuine and effective economic activity?
- Steymann v Staatssecretaris van Justitite
- Must be genuine and effective economic activity
- And not merely marginal or ancillary
- Activity persued for remuneration = an economic one.
HMC and Excise v Schindler
- Held: lotteries are an economic activity
- Because they are services provided for renumeration constituted by the price of the ticket
- Several MS argued that lotteries are not a service because they are traditionally operated or controlled by public authorities solely in the public interest + have no economic purpose since they are based on chance.
What is removed from the Scope of Article 56 TFEU?
- There is an official auhtority exception
- This also applies to the freedom to provide services under a56
- Removes activities from the scope of a56 where they are connected in a MS, and sometimes with the exercise of official authority.
Omega Spielhallen utomatenaufstellungs GmbH v Oberburgermeisterin der Bundesstadt Bonn
- Article 56 TFEU will govern where the other appicable freedom is entirely secondary to the freedom to provide services
- Laser sport games where players shoot with infra red guns was held to be governed by Article 56 TFEU
- Ban also had the effect of restricting imports of the equipment used in the game and therefore restricted free movement of goods
Gebhard v Consiglio dell’Ordine Avvocati e Procuratori di Milano
- Made clear that the chapters within the Treaty on free movement of workers, freedom of establishment and services are mutually exclusive
- Provisions of the chapter on services are subordinate to those on the chapter on establishment.
What are the freedom to provide services in the field of transport governed by?
- Article 58(1) TFEU stipulates that these are governed by:
- Title VI on transport, instead of Article 56.
Procureur du Roi v Debauve
- Court of justice pointed out that Article 56 does not apply to “acitivites whose relevant elements are confined within a single Member State”
- But the court of justice can be flexible when there is some form of cross border element.
De coster v College des Bourgemestre et Echevins de Watermael-Boitsfort
- Local tax on ownership of satellite dishes breached Article 56
- Because it would dissuade people from buying dishes and thus getting programmes broadcast in other MS.
- No similar charge on getting TV programmes transmitted by cable which was held to favour the national broadcasters.
Hubbard v Hamburger
- Example of when the service provider and recipient were in the same member state, but there was still some cross border element to the service.
- In this case, in his capacity as a solicitor and executor of a will in the UK, Hub brough t an action in German courts which would transfer ownership of the land in the testators estate in Germany, to him.
- Both providor (hubbard) and recipient of services (hubbard client) were based in UK.
- Was found that the german law was discriminatory based on nationality.
Van Binsbergen v Bestuur van de Bedrijfsverenging
- Made clear that article 56/57 prohibit restrictions
- Not just based on nationality
- But also based on residence.
