Establishment Flashcards
Hartmann
Cross boarder element
German citizen working in Germany, looks like a wholly internal situation. However, he was residing in Austria, by residing in Austria and working in Germany there was a cross border element imposed into situation so brought himself within the scope of EU law. Therefore, he is now a worker for purposes of free movement of worker rules.
Trojani
‘any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a “worker
What is effective and genuine economic activity is “whether the services actually performed by X are capable of being regarded as forming part of the normal labour market.
Lawrie-Blum:
3 elements for worker
for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration’.
3 elements of what might be a worker:
¥ 1) performs a service (if someone pays you this is economic activity)
¥ 2) Under direction of another person – This is the distinguishing feature between the establishment of self-employed persons. If there is a relationship of subordination, this is a clear signal that you are dealing with a worker rather than a self-employed person.
¥ 3) received remuneration
Levin
Part time work counts as worker. Doesnt matter why individual moves to seek work in anothr MS.
British person working in Netherlands, she completed part time work, they got less than national minimum income. Question: can she be considered to be a worker because she only worked for a part time bases and didn’t earn a lot of money. Court held: yes because many people work part-time, for some this is choice, for others there is no choice, this is all they can get. If exclude this outside scope of treaty you are excluding a huge amount of people.
Lawrie-Blum
Short term work
if within a certain amount of time you are genuinely contributing to the labour market, this is work. If you work one or two hour in the month, this is purely marginal.
Kempf
Does salary matter?
Piano teacher working in MS, only did 12 hours per week, she applied for social assistance. Host MS tried to argue that because she is earning so little and is applying for social assistance, she cannot be a worker. Court held: she can be considered a worker, it does not matter the amount she earned. Worker status is a different question for eligibility for social assistance.
Ninni-Orasche
Does not matter why X has moved to work.
Italian woman married to an Austrian person and she lives in Austria, she did not worker. However, then she goe into work for a short period of time to qualify for financing aid relating to this work. They thought that she was abusing treaty provisions to apply for the grant. Court held: her motive does not matter: do not look at subjective factors, look at objective ones such as the hours she worked, the remuneration she received. Objective factors are more important than subjective factors.
Steymann
What about work in religious communities/rehabilitation programmes?
various activities in religious community. Someone working in other MS religiously, Steymann was part of community performing various services, he did not get paid in money, he was paid in kind. This was found to possibly be within the realms of being classified as a worker. Payment in kind can also be remuneration.
Bettray
rehabilitation programme - not work - adapted to each person. However, unlike in Steymann, in Bettray there was a foreigner participating in a rehabilitation program in another MS, he was a drug addict work was adjusted to his needs. Question: was this work when it was adjusted to his needs? Court held: this is not work because it is adapted to each person, whether activity is whether the services form ‘part of the normal labour market’. Is it a job that can be done by anyone.
Trojani
distinguished Bettray - what matters is whether the services form ‘part of the normal labour market’. This approach has been criticized as it can leave out disabled people, their jobs sometimes have to be adopted, they would not be considered workers for the purposes of EU law.
Bosman
horizontally directly effective
French Merchant Navy
France had quota on a number of foreigners on ships. Held: directly discriminatory, cannot disriminate onn wrkers based on origin.
Groener
Dutch person living in Ireland (teacher), and she couldn’t access work as a teacher because she had to speak irish, teaching itself could be done in english, but gelaic was requieed to preserve irish language. Held: indirect discrimination.
Hartmann
wife and mfamily memebr could not claim allowance due to a resident requirement, they did not live in Germany, this is indirect discrimiantion because easily satified by people liviign the Germany.
Bosman
Football player wanted to be transferred to a club in France and he couldn’t because his contract came to an end, he could not move to French club because he would have to pay the Belgium club a transfer fee. Question: what rule is this? It does not discriminate against anyone. It is a non discriminatory measure, so does art 45 cover? Held: yes on basis of idea of market access, the court held any measure which hinders access in the labour market in another MS will be caught by art 45 because makes it less attractive for you to work abroad.
Schumacker
Belgium citizen living in Belgium, working in Germany, he was not entitled to same tax benefits as those who work and live in Germany. Held: this was discriminatory.
Christini
What is social advantages?
wide definition. includes benefits that are not directly linked to employment or are granted to the dependants of the worker
Hartmann
Child care allowance is an example of social advantage.
child-raising allowance – – right under Art 7(2) FMWR extended to spouse of a worker not resident in the MS where her husband was employed – the worker was a national of a MS and had exercised right of free movement to work in the host MS even if not to reside there. The allowance enabled him to work while his wife looked after the child! The family as a whole benefited and it was therefore a ‘social advantage’.
Baumbast
German citizen and Columbian wife who resided in UK. No longer worked in UK. Court found they could still reside in UK also because child was going to school in UK.
Bragança Linares Verruga
- Rule by Luxemburg that children of workers could not get financial aid for their studies for university if they were not residents in Luxemburg. Court held: this was unacceptable, residential requirements are indirectly discriminatory. Luxemburg then said that they would change their laws and instead require that workers should be working in Luxemburg for at least 5 years before their children can get the grants. Court did not like this either because it imposes conditions which are not fair.
Groener
In case of teacher in Ireland, Court accepted the justification that Ireland was to promote the national language, recognised in Art 3 – this is a legitimate thing for MS to do. Language requirement (see also Art 3 FMWR)
Bernard
: Rule where young players, if player signs contract with another club, essentially they will have to pay damages, home club spends a lot of money training them. Court accepted legitimate, because it encouraged the recruitment and training of young footballers, but measure was not proportionate because money they had to pay, there was no clear link at how they got to this money. If they establish that fee being charged linked to the cost of player, then their argument would have succeeded.
Commission v Belgium
¥ Local authorities did not allow foreigners to do various jobs at the local level (such as nurses etc), this is public service. Court held: takes an institutional approach saying lets look at nature of activity, what we are paying attention to is the following
¥ 1) powers conferred by public law, are they related to safeguarding the general interest of the state?
¥ 2) there should be a special relationship
Factortame
The actual pursuit of an economic activity through a fixed establishment in another Member State for an indefinite period’ . Definition of what establishment is from case law. Elements from here:
1) economic activity.
2) Through a fixed establishment
3) for an indefinite period.
Jany
When is FoE involved: distinguishing from other freedoms
Two prostitutes working in another MS, were they workers or self employed persons? They hired rooms and got remunication themselves. Court held: since no relationship of subordination, they were self employed persons not workers. Relationship of subordination separates workers from self employed. The scope of establishment is wide in including services such as prostitution.
Gebhard
When is FoE involved: distinguishing from other freedoms
Distinguishing feature: Factortame tells us for an indefinite petiod. Establishment - stable and continuous basis. Services – a temporary. Not only duration, but also regularity, periodicity and continuity basis. Duration is not the only factor but also regularity, periodicity and continuity. If you want to hire premises for a service, does this automatically make you fall within idea of establishment because for certain time you have the offices. Held: no if equipment or infrastructure is for temporary, this does not make it an establishment.
Knoors
Cross boarder element
Dutch citizen who wants to work as self employed person in Netherlands. Foreign elements was that he trained in Belgium and worked there, Netherlands then refused recognition of his trading in beligum, bring him within scope of EU law, there is a foregin element.
Reyners
Cross boarder element
Dutch citizen who got education as lawyer in Belgium. He wanted to work in Belgium but was refused on the grounds of nationality. This brings you within scope of EU law.
Reyners
Direct effect of Art 49 TFEU
argument that wording of art 49 does not satisfy Vanhandlers criteria so not directly effective. Court dismissed this, art 49 is directly effective. Applies against state and wide understand of state – any bodies whose public power has
