Establishment Cases

Question 1

Reyners v Belgium

Answer 1

Art 49 right of establishment is directly effective horizontally and vertically

Question 2

Gebhard

Answer 2

National rules that might hinder exercise of fundamental freedoms must be:
1 applied in non-discriminatory way
2 justified in general interest
3 suitable for attainment of their objective
4 proportionate to attaining objective

ECJ uses broad interpretation

Question 3

Thieffry

Answer 3

• demonstrates Art 49 is directly effective

- MS must recognise adequate professional qualifications

Question 4

Steymann

Answer 4

Establishment is without a forseeable limit to its duration

Question 5

Klopp

Answer 5

• Rule preventing members of Paris bar maintaining offices in other states caught because it stops German lawyers applications for membership
• Rule was applied without discrimination to all members but still had indirectly discriminatory effect

Question 6

Thieffry v Cour de Paris

Answer 6

Need mutual recognition of equivalence of qualificaitons to ensure adequacy of qualifications

Question 7

UNECTEF v Heylens

Answer 7

MS entitled to assure themselves on objective basis of equivalence of foreign diploma exclusively in light of level of knowledge and qualifications

Question 8

Vlassopoulou

Answer 8

His skills equalled national requirements so had to be recognised.
- National authorities must take into account the education, training, knowledge, acquired skills, of applicant and compare them to those required by national qualification
- if a MS has allowed an individual to already practice it is too late to complain about their qualifications
Where member state already allows individual to practise job or profession it is too late to complain about qualifications.

Question 9

Fernandez de Bobadilla

Answer 9

Partial equivalence of qualifications entitles the state to require full qualifications BUT must also take into account any knowledge gained by a course of study or work experience

Question 10

Hugo Fernando Hocsman

Answer 10

Extends Bobadilla approach to situations where a profession is covered by EU law

Question 11

Haim v Kassenaertzliche

Answer 11

Period of training makes up for lack of minimum requirement considered necessary by member state

Question 12

Tawil Albertini

Answer 12

If a non EU qualification has been recognised by some MS, it doesnt automatically mean its recognised by others

Question 13

Caixa Bank France

Answer 13

Test of obstacle to freedoms widened to “anything which should prohibit impede or render less attractive”

Question 14

Asscher

Answer 14

Different tax rates between residential and non residential tax payers are discriminatory BUT can be justified if the differences between two groups were genuine objective differences.
NO objective differences here

Question 15

Knoors v Secretary of State for Econ affairs

Answer 15

• returned to his home MS to practice using a qualification from another MS
• So long as there is a directive in an area allowing the activity on possession of certain qualifications, the MS shall accept as sufficient evidence of ability the fact that the activity in question has been pursued in another member state

Question 16

Broekmuellen

Answer 16

MS must follow directive setting out professional standards and ignore their own national standards

Question 17

Wilson v Luxembourg

Answer 17

• Prior test of linguistic knowledge is precluded in legal profession
• if they are incapable of speaking the language this will be a breach of professional conduct.

Question 18

Steinhauser

Answer 18

Company defined under Art 54 TFEU: must be profit making and non-profit making firms are excluded

Question 19

Viking Line

Answer 19

can balance workers right to strike against companies’ rights ti establish overseas.
- use of strike right must be proportional conisidering other options

Question 20

Daily Mail and General Trust

Answer 20

Companies enjoy same establishment rights as individuals. discrimination can apply to companies

Question 21

Centros Ltd

Answer 21

Where company forms under law of MS and was not allowed to form branch in another MS, this is breached their of Right of establishment

Question 22

Commission v France

Answer 22

French company branches in other states had branches taxed by French state as if they were in France but received none of the benefits
- breached Art 49

Question 23

Marks and Spencer

Answer 23

Tax issues. Objectively justifiable action but still disproportionate breach of Art 49

Question 24

Thijssen

Answer 24

Derogation Art 51 defined narrowly. Commissioner of insurance companies does not fall under this exception - lacked final powers to stop companies pursuing certain policies

Question 25

Commission v Italy (Freedom of Establishment)

Answer 25

Italian rules allowing only Italians jobs in tourism, pharmacies and journalism breach Art 49, Art 56 and Art 45

Question 26

“establishment”

Answer 26

Gebhard:
allowing an individual to participate on a stable and continuous basis in the economic life of a member state other than his state of origin.

Consider

• duration
• regularity
• periodicity
• continuity

Question 27

D89/48

Answer 27

• mutual recognition of professional qualifications requiring a higher education diploma in a number of professions

Question 28

D98/5

Answer 28

mutual recognition of legal qualifications

Question 29

Art 49

Answer 29

Freedom of Establishment

Question 30

Factortame No 1

Answer 30

buying premises or licenses in another MS is evidence of establishment

Question 31

D2005/36

Answer 31

recognition of qualifications leading to a recognised profession is to be on the same basis for a migrant EU citizen as for a national EU citizen