European Law W2 Flashcards
Subject 1: introduction to the internal market
The internal market is the concept in which the European Union wants to regulate its economic area. This week is about the freedom to provide services and the freedom of establishment. These freedoms a part of the internal market. In art. 26 (2) TFEU, we find the definition of the internal market.
Art. 26 (2) TFEU
The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the treaties.
To achieve the internal market, two main techniques have been distinguished. These techniques are also called forms of economic integration:
- Negative and deregulatory integration:
National rules that hinder cross-border trade are prohibited at the EU level by law. You can see through the course that the EU has developed four freedoms that are based on this mode of economic integration. The rules of these freedoms prohibit national rules that conflict with the internal market and prohibit cross-border trade. Mutual recognition enhances this technique. Mutual recognition makes sure that Member States acknowledge goods that have been produced according to the national rules of another Member State. - Positive integration:
how member states interpret and implement EU law can vary from country to country and suit how a particular country is governed. However, it can be undesirable if a single European rule is applied in many ways. To solve this problem, the system of harmonization was born. Through secondary EU law, the different national approaches are regulated at the EU level by, for example, a Directive. The effect of harmonization is that there is no longer any difference in applying EU law between different Member States.
tip:
Directives > richtlijnen. Deze richtlijnen zijn dus vormen van harmonisatie, waarin de EU ervoor heeft gezorgd dat lidstaten bepaalde onderwerpen niet meer op verschillende wijzen kunnen toepassen.
So, as just briefly mentioned, the internal market consists of the four freedoms. Rules in these four areas help to achieve an internal market with as few restrictions on EU member states as possible.
The four fundamental freedoms:
Free movement of goods
Free movement of services
Free movement of persons
- free movement of workers
- free movement of establishment
Freedom of capital.
Nadere uitleg van Lawbooks
De Europese Unie heeft kortgezegd vier fundamentele vrijheden in het leven geroepen om ervoor te zorgen dat binnen haar grenzen tussen de lidstaten zoveel mogelijk ‘economische vrijheid’ heerst. Deze vrijheden zullen grotendeels aan bod komen in deze cursus. Houd in je achterhoofd dat het doel van de Europese Unie bij het in het leven roepen van deze vrijheden ‘economische vrijheid’ binnen de grenzen centraal staat.
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1 What techniques of economic integration can be identified? How do these connect to the Treaty Articles on the free movement of services & establishment and the Services Directive?
Negative > each member state has our rules. We eliminated rules.
Positive integration > harmonization. All the EU member states has the same.
Art. 49 TFEU > establishment
Art. 56 TFEU > services
The articles follows the negative integration.
Directive is a example of positive integration.
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1 Positive integration: having an active role for the EU to create integration, by harmonization of national laws through directives of the EU. Regulation also.
2 Negative integration: The EU prohibits national rules that hinder cross border trade. This is reinforced through the concept of mutual recognition, which requires Member States to accept goods which are made in accordance to another Member State’s regulatory rules, subject to some exceptions.
In art. 49 TFEU you will find the free movement of services. In art. 56 TFEU you will find the freedom of establishment.
The Services Directive is positive integration. The EU parliament, Council and Commession made the Services Directive according to the legislative procedure. The Treaty artciles are negative integration, as they prohibit Member States from introducing certain restrictions.
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negative integration is about removing obstacles to the free
interstate movement of goods
, capital and persons. The mutual recognition is important.
positive integration: harmonization
Subject 1: introduction to the internal market
To achieve the internal market, two main techniques have been distinguished. These techniques are also called forms of economic integration:
- Negative and deregulatory integration:
National rules that hinder cross-border trade are prohibited at the EU level by law. You can see through the course that the EU has developed four freedoms that are based on this mode of economic integration. The rules of these freedoms prohibit national rules that conflict with the internal market and prohibit cross-border trade. Mutual recognition enhances this technique. Mutual recognition makes sure that Member States acknowledge goods that have been produced according to the national rules of another Member State. - Postive integration:
How member states interpret and implement EU law can vary from country to country and suit how a particular country is governed. However, it can be undesirable if a single European rule is applied in many ways. To solve this problem, the system of harmonization was born. Through secondary EU law, the different national approaches are regulated at the EU level by, for example, a Directive. The effect of harmonization is that there is no longer any difference in applying EU law between different Member States.
Subject 2: introduction to the free movement of services and the freedom of establishment
The EU has regulated two issues that allow self-employed persons to move on a permanent or temporary basis between member states. We see these rules in the freedom of establishment and the freedom to provide services.
The freedom of establishment (art. 49-54 TFEU)
Art. 49 TFEU
Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of art. 54 TFEU, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.
This provision highlights that the freedom of establishment contains the removal of barriers for a person or a company to carry out work on a permanent basis.
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The freedom of services (art. 56-62)
Art. 56 TFEU
Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Union.
The freedom to provide services can apply in three situations where national rules are set to limit this freedom:
- when the service provider (natural person or a company) provides the services in another Member State or (art. 62 TFEU jo. art. 54 TFEU state that art. 56 TFEU also applies to companies)
- The service recipient receives the provided services in another Member State; or
- The service itself transcends national borders.
Tip:
het valt je misschien op dat deze regels niet slaan op situaties die in een bepaalde lidstaat blijven. Zowel voor establishment als services zien we dat de situatie een strikte nationale situatie overstijgt.
In het stappenplan op blz. 8 zie je dat zonder een dergelijk element Europees recht in beginsel niet van toepassing is. Let dus goed op dit overstijgende element dat meerdere lidstaten treft.
Subject 2: introduction to the free movement of services and the freedom of establishment
Subject 3: Roadmap - Restriction on the freedom of establishment of the freedom to provide services
This roadmap is important to find out whether certain actions violate the freedom of establishment or the freedom to provide services. The most important articles are thus art. 49 (establishment) and 56 (services) TFEU. In this roadmap, we will test whether certain actions voilate these freedoms.
De essentie van dit leerstuk:
Het leerstuk van the freedom of establishment en the freedom to provide services is bedoeld om zelfstandigen (ook wel self-employed) te beschermen tegen beperkingen. De Europese Unie is gedoeld op zoveel mogelijk vrijheid binnen haar grenzen. Er wordt door dit leerstuk duidelijk ook al een scheiding gemaakt tussen zelfstandigen (bijv. zzp’ers) en niet-zelfstandigen.
Niet-zelfstandigen zullen doorgaans vallen onder the freedom of workers (w5). Let dus op het eindtentamen goed op of je te maken hebt met een zelfstandige of een niet-zelfstandige. Hieronder zullen enkele standaardvoorbeelden voor beide freedoms worden opgesomd.
The freedom of establishment:
- een Italiaanse bank wil vestigingen (subsidiaries) openen in Brussel
- een Nederlandse dokter die een dokterspraktijk opzet in Frankrijk en daar op een permanente basis patiënten behandelt.
The freedom to provide services:
- De Schindler zaak: het organiseren van een loterij door het verstrekken van reclamemateriaal en bestelformulieren.
- De Josemans zaak waarin de coffeeshop van meneer Josemans moest sluiten, waardoor hij geen onder andere geen drankjes meer kon verkopen. Het verkopen van de drankjes kan worden gezien als een ‘service’.
Alle stappen hieronder zullen nodig zijn om te bepalen of je te maken hebt met the freedom of establishment of the freedom to provide services. Neem deze dus allemaal door en trek daaruit voor iedere stap de juiste conclusie! Je krijgt namelijk ook punten voor iedere subconclusie die je maakt.
Step 1: Can EU law be applied?
If EU law does not apply to a given situation because the situation falls outside the scope of EU law, then we can not test the situation under art. 49 and 56 TFEU. The conclusion can then simply be made that EU law is not applicable and that the national rules apply in the given situation. To answer the question of the applicablity of EU law, we need to look at the personal scope and the material scope.
The personal scope determines which persons fall under EU law. In the context of natural persons, they are covered by EU law if they have the nationality of an EU member state. In the context of a legal person, it falls within the scope if the legal person has its corporate seat in an EU member state.
Tip:
De personal scope houdt in dat we te maken hebben met een natuurlijk persoon die de nationaliteit heeft van een EU-lidstaat of een bedrijf waarvan het hoofdkantoor zich in een EU-lidstaat bevindt.
The situation falls under the material scope if there is a cross-border element on the one hand and an economic activity on the other:
- Cross-border element:
This requirement can also be names as the interstate element. If you can conclude that there is no strict internal situation (because several member states are involved) then there is a cross-border element. - Economic activity:
Economic activity occurs when activities take place in exchange for a certain remuneration.
Warning:
In the Josemans case para. 41 and 42 the Court concluded that illegal goods are not covered by the law of the freedoms. This case involved narcotic drugs that were not distributed according to the authorized rules. An illegal situation occurred where these drugs were being distributed. The court concluded that in the case of a prohibited good, the rules on the four freedoms and the prohibition of discrimination (this prohibition is explained in more detail further in the roadmap) cannot be invoked.
Step 2: The definition of the freedom to provide services and the freedom of establishment?
The meaning of the freedom to proviode services and the freedom of establishment is shown in the Gebhard case. So always mention this case in answering an exam question!
Establishment can be characterized as the participation ‘on a stable and continuous basis’ (Gebhard par. 25). From this, we infer that establishment has a more permanent character.
In art. 57 TFEU, we see the meaning of services and examples of which sectors services are mainly found in.
According to this article services ‘are normally provided for renumeration. services include:
- Activities with an industrial character
- activities with a commercial character
- activities of craftsmen
- activities of profession
In addition, services can be seen as the pursuit of ‘activitiy on a temporary basis’ Gebhard par. 26. To test against the criterion of temporary, we look at ‘not only the duration of the provision of the service, but also of its regularity, preiodicity or continuity Gebhard par. 27.
The provider of services may provide itself with certain infrastructure, despite the freedom of services being temporary in nature. This means that the provider of services may, for example, have an office (Gebhard par. 27)
tip:
In deze stap zie je dus duidelijk het verschil tussen services en establishment. Waar establishment een permanent karakter heeft is het aanbieden van services tijdelijk in wezen. Bepaal dus aan de hand van de Gebhard-zaak of er sprake is van services of establishment. En kijk daarbij ook goed naar de duur van situatie.
Step 3: The Services Directive
Within European law, it is always important that when a more specific provision can apply, you also always test it against the issue at hand. In the context of the freedom to provide services and the freedom of establishment this specific regulation is the Services Directives (SD). Indeed, if the Services Directive applies, we will not go further into articles 49 and 56 TFEU but test the situation against the provisions in the Directive. To conclude that the Services Directive applies we look at the personal scope and the material scope:
- the personal scope can be found in article 2 (1) SD. This article is difficult to read and makes it seem like the Services Directive only applies to establishment. However, this articles states that the personal scope is met when the natural person in question has the nationality of a member state, or the company has its corporate seat in a member state.
- the material scope can be found in article 1 (1) SD. It states that the Services Directives applies to the freedom to provide services as the freedom to establishment. In the further paragraphs of the article, we can find which situations the directive does not cover. So, the services directive applies to both services and establishment, but some situations are not covered by this directive.
Two important examples are listed below:
1 Article 1 (5) SD: this directive does not affect rules of criminal law
2 Article 1 (7) SD: this directive does not affect the exercise of fundamental rights.
Warning:
In article 2 (2) SD there are situations mentioned where the Services Directive should not be applied (such as in the context of gambling). Always check this article! If you conclude that a situation arises that is listed in art. 2 (2) SD, then you may conclude that the Services Directive can not be applied, and you should fall back on the rules from articles 49 and 56 TFEU.
A few important situations of article 2 (2) are listed below:
- financial services
- healthcare services
- gambling services
- social services
- services of temporary work agencies (tijdelijke uitzendbureaus)
Stap 4a (1): in case the services directive does not apply
Tip:
Deze stap volg je dus alleen als de Services Directive NIET toepasbaar is. Mocht je eerder geconcludeerd hebben dat de Services Directive wel toepasbaar is, ga dan gelijk naar stap 4b.
In case the Services Directive is not applicable you have to conclude that the articles of law you are using are art. 49 TFEU for establishment and art. 56 TFEU for services. Both articles prohibit three forms of measures:
- Direct discrimination:
When a measure is directly based on the nationality of a natural person or company, we speak of direct discrimination. - Indirect discrimination:
When nationality is not directly the basis for a measure, but the effect is that natural persons or companies with a different nationality are hit harder. - A restriction:
Under Gebhard para. 37, both articles 49 TFEU and 56 TFEU prohibit a restriction. This means that if there is both no direct or indirect discrimination, but the freedom to provide services or the freedom of establishment is restricted, the act is still prohibited in terms of European Law.
Nadere uitleg:
Een voorbeeld van directe discriminatie is een maatregel die stelt dat ‘slechts Nederlandse docenten les mogen geven op Nederlandse universiteiten’. Je ziet hier dat de nationaliteit van de docenten een direct criterium is van de maatregel.
Een voorbeeld van indirect discriminatie is wanneer een maatregel stelt dat ‘slechts docenten die de Nederlandse taal beheersen op Nederlandse universiteiten les mogen geven’. Het directe criterium van deze maatregel is niet de nationaliteit van de docenten maar hun taalvaardigheid in het Nederlands. De maatregel heeft een neutraal criterium dat niet direct gericht is op de nationaliteit van de docenten. Maar deze maatregel treft de docenten uit andere lidstaten harder, omdat zij niet in alle gevallen de Nederlandse taal zullen beheersen.
Step 4a (2): Can there be a justification for the forbidden behaviour?
We distinguish the possibility of a justification based on which prohibited action is involved.
Situation 1: Direct discrimination, indirect discrimination & restriction Gebhard para. 37
To see whether there is a statutory justification for the prohibited conduct, we look at the following articles of law:
- freedom of establishment art 51 jo. art 52 TFEU provide the possible justifications
- free movement of services art. 62 TFEU states that articles 51 jo. 52 apply to the freedom to provide services as well.
The articles above provide several grounds justifying the prohibited conduct:
- Official authority:
The activities in question are connected to a state and its powers. Official authority implies ‘the power of enjoying the perogatives outside the general law, privileges of offical power, and powers of coercion over citizens’. Think in this context of high-ranked diplomats or judges. - Public policy:
Covers the protection against a genuine and sufficiently serious threat affecting one of the fundamental interests of society and may include, in particular, issues relating to human dignity, the protection of minors and vulnerable adults and animal welfare. We see this also elaborated on in the Josemans case para. 62 - Public security:
This concerns issues of public safety - Public health:
This involves protecting the health of residents of member states.
Uitleg:
Het uitoefenen van public authority impliceert een direct verband met het officieel gezag in een lidstaat.
To invoke one of these justifications, certain requirements must be met:
- Harmonization:
No harmonization is allowed when invoking a statutory justification. The concept of harmonization has been discussed above.
Proportionality:
The requirement of proportionality consists of three sub-requirements.
1 Suitable:
The measure must be suitable in achieving the aim on grounds of official authority, public policy, public security or public health.
Accoring to the Josemans case a measure can be suitable if the objective is pursued in a consistent and systematic manner par 70. The fact that the measure is discriminatory does not automatically mean that the objective is not attained in a consistent and systematic manner par. 76.
2 Necessary:
The measure is necessary to reach the aim and there are no lesser restrictive ways in which the aim on grounds of official authority, public policy, public security or public health can be established.
3 Stricto sensu:
Stricto sensu means that there must be a weighing of interests in determining if there is a justification for the measure restricting the freedom to provide services or the freedom of establishment.
Situation 2: Indirect discrimination and restriction
In case we deal with indirect discrimination or a restriction based on par. 37 of the Gebhard case, the rule of reason can form a justification on top of the statutory justifications we discussed above.
Par. 37 of the Gebhard case gives the requirement that need to be met for the rule of reason to form a justification:
- There can be no direct discrimination: the rule of reason exception does not extend to measure that contain direct discrimination
- There must be a reason of public interest also called a legitimate aim:
An economic aim can not be seen as a legitimate aim. The aim must also objectively be determined. For the rule of reason exception, it is not required that the legitimate aim must be on grounds of official authority, public policy, public security or public health.
Proportionality:
- Suitable: the measure must be suitable in achieving the aim.
- necessary: the measure is necessary to reach the aim and there are no lesser restrictive ways in which the aim on grounds can be established.
- Stricto sensu: means that there must be a weighing of interests in determining if there is a justification for the measure restricting the freedom to provide services or the freedom of establishment.
Nadere uitleg:
Het systeem van uitzonderingen in het Europees recht, ook wel justifications genoemd hangt af van de verboden actie die plaatsvindt. In het systeem kun je terugvinden dat de rule of reason niet toepasbaar is op directe discrimination. In het kader van indirecte discriminatie en een beperking op grond van de Gebhard case kijken we voor uitzonderingen zowel naar de wettelijke uitzonderingen als naar de rule of reason. Loop voor deze verboden acties dus altijd beide langs. In het kader van directe discriminatie kan alleen een wettelijke uitzondering een justification opleveren. De rule of reason loop je voor directe discriminatie dus niet langs.
Step 4b (1): in case the services directive does apply
When the service directive applies, we immediately distinguish establishment from services to determine if the measure in question is violating European Law.
Establishment
In the context of establishment, both authorization schemes and requirements may be prohibited. The definition of establishment can be found in the Services Directive.
Art. 4(5) SD
‘Establishment’ means the actual pursuit of an economic activity, as referred to in art. 49 TFEU, by the provider for an indefinite period and through a stable infrastructure from where the business of providing services is actually carried out;
As regards to an authorization scheme, the definition can also be found in article 4 SD.
Art. 4(6) SD
‘Authorisation scheme’ means any procedure under which a provider or recipient is in effect required to take steps in order to obtain from a competent authority a formal decision, or an implied decision, concerning access to a service activity or the exercise thereof;
a competent authority can thus give a formal decision to provide access to the service activity or the exercise of the activity. The definition of a competent authority can be found in art. 4 (9) SD:
Art. 4 (9) SD
‘Competent authority’ means any body or authority which has a supervisory or regulatory role in a member state in relation to service activities, including in particular administrative authorities, including courts acting as such, professional bodies, and those professional associations or other professional organisations which, in the exercise of their legal autonomy, regulate in a collective manner access to service activities or the exercise thereof;
we can find in art. 9(1) SD that the use of an authorization scheme is prohibited unless the following requirements are met:
- the authorization scheme involves no discrimination
- there is an overriding reason of public interest
- the objective that is pursued can not be attained by less restrictive measures.
An overreading reason of public interest if defined in art. 4 (8) SD:
Art. 4 (8) SD
Overriding reasons relating to the public interest’ means reasons recognised as such in the case law of the Court of justice, including the following grounds: public policy, public security, public safety; public health; perserving the financial equilibrium of the social security system; the protection of consumers, recipients of services and workers; fairness of trade transactions; combating fraud; the protection of the environment and the urban environment; the health of animals; intellectual property; the conservation of the national historic and artisic heritage; social policy objectives and cultural policy objectives;
In art. 10(1) SD, we can then find on what criteria authorization schemes must be based to prevent competent authorities from applying their power in an arbitray manner. The criteria can be found in art. 10(2):
- nondiscriminatory
- justified by overriding reason of public interest
- proportionate to the public interest
- clear and unambiguous
- objective
- made in advance in public
- transparent and accessible.
in case of a requirement, the definition can be found in art. 4(7) SD:
Art. 4(7) SD
‘requirement’ means any obligation, prohibition, condition or limit provided for in the laws, regulations or administrative provisions of the Member States or in consequence of case-law, administrative practice, the rules of professional bodies, or the collective rules of professional associations or other professional organisations, adopted in the exercise of their legal autonomy; rules laid down in collective agreements negotiated by the social partners shall not as such be seen as requirements within the meaning of this Directive;
Under requirement, a blacklist and grey list are used. The requirements in art. 14 SD are blacklisted and can not be justified and are therefore always prohibited. Requirements on the grey list in art. 15 (2) SD are prohibited unless they have the following characteristics referred to in art. 15 (3) SD:
- Not directly or indirectly discriminatory
- an overriding reason of public interest
- proportionality
- suitable: the requirement must be suitable to reach the overriding reason of public interest.
- necessary: the requirement must not go beyond what is necessary to reach the overriding public interest and there is no way in which the requirement can be replaced with less restrictice measures.
Tip:
In het kader van de Services Directive hoef je niks uit je hoofd te leren. De definities van verschillende begrippen en concepten kun je terugvinden in art. 4 SD, waarna de verschillende vereisten terug te vinden zijn in de artikelen benoemd in de samenvatting. Lees deze dus goed door en markeer de belangrijkste begrippen!
Services
The definition of services can be found in the Services Directive
Art. 4 (1) SD
‘Service’ means any self-employed economic activity, normally provided for remuneration, as referred to in art. 56 TFEU
also, in the case of services, a black list and a grey list exist in art. 16 SD. In order to determine if a measure finds itself on the black list or the grey list art. 19 SD must be consulted first. In this article, you can find a list of which requirements are prohibited.
These requirements can not be justified. Secondly, we look at art. 17 SD. In art. 17 SD a list can be found in which certain situations are excluded from art. 16 SD and thus the grey and black list.
If you have found that the situation does not fall under the situations listed in section 17 Sd, you can look at whether the situation falls under the grey list of black list. The black list can be found in section 16(2). Situations on this list can not be justified and are prohibited in all cases. In art. 16(1) they grey list can be found. Situations from this list are prohibited unless:
- no direct or indirect discrimination
- the requirement must be justified for reasons of public policy, public security, public health or the protection of the environment.
-proportionality
- the requirement must be suitable to attain the objective
- the requirement must not go beyond what is necessary
Subject 3: Roadmap - Restriction on the freedom of establishment of the freedom to provide service
hc aant 1
When do the provisions on establishment & services apply?
Economic, lawful activities > art. 57 TFEU : for remuneration
- For example: legal services (Gebhard, by using the title advocate because for these legal services the clients pay), sale of soft drinks (Josemans coffee shop you pay for soft drinks and drinks lawful activities), financial services (Alpine Investments which the Dutch government did not in it self prohibited but the way in which the afford to consumers meanly by prohibiting cold calling marketing technique)
- Digital payments, data & other forms of counter-performance
NB: unlawful activities are excluded from the scope of application, including the sale of soft drugs Josemans para. 42-49.
Josemans did not only sell soft drinks, but 98% over turn over wat sale of soft drugs.
The Dutch governments chance its policy we respect to the sale of soft drugs particularly in boarding regains the wanted to do something about drugs tourism. prohibited as a coffee shop owner from selling soft drugs to citizens from outside that city. particularly targeting citizens from other member states. this case disbuted involved mister Josemans coffee shop in Maastricht, he sells to Germans etc. I go bankrupted so he stayed open and it was a legal dispute to the Council of State (Raad van State). Joseman say it is a Dutch policy by prohibiting me from selling these products to citizen from another member state is discriminatory. I can sell to people in Maastricht but not from outside the Netherlands. Indirectly discrimination. He invoked on the provisions.
1 question is are the free movements moves rules applicable, are we dealing with lawfull economic activities. because sell of soft drugs is prohibited even in the country of the Netherlands. It is illegal but not being prosecuted.
Sell of soft drugs is a economic activity because he sells coca cola and sandwiches. these are lawful products.
the freedom of goods provisions only applies to goods that are commercial tradeable object. commerciele waarde/economische waarde. otherwise internal market rules do not apply, but only to economic activity and the same is for establishment and services.
Social media watch on youtube films, you are not directly paying, but with prescription you did. but data is paying it. can that fell under the provisions establishment and services? is there a economic value? yes it is. indeed the free movement of services can apply. so paying with data is now considered in secondary EU legislation you don’t need to know that, but it is also a remuneration.
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hc aant 2
freedom of establishment
art. 49 TFEU
concept of establishment (a)
Definition
participation on a stable and continuous basis in economic life of MS (Gebhard para. 25)
Establishment of companies
- right to set up and manage companies (primary establishment)
- Right to set up agencies, branches or subsidiaries (secondary establishment > Gebhard para. 24.
Mrs. Gebhard was a self-employed person. He was a German and lives in Italy and working for as a kind legal advisor and working in a law firm. But he wants to set up his own practice and use the titel for lawyer as avocado.
However can you just like that that use that title if you have not a Italian law degree, what he did not have. He did not have the master title in Italian, no you can not. Just like in Italian can not use the title if he or she does not the master title in the Netherlands. You need to do exams. There were complains from other lawyers. So misleading consumers, like you are a Italian lawyer, but you are not that.
First question was: are we dealing with establishment or services?
Concept of establishment (b)
Establishment vs. services
- Continuity and stability vs. provision of a service on a temporary basis Gebhard case para. 25-27.
Establishment vs. Workers
- Self-employed service provider versus worker, who performs services for and under the direction of another person.
les:
Loodgieter (Plumber) provide services or establishment? the may use a office to do their activities temporarily. Always case be case approached, what is establishments and services.
Gebhard was self-employed lawyer, so is not working under the suprantion or in a highar.. with an employer. You can employed as a lawyer. But if you are employed then you are a worker and not a self-employer. If you are a worker you have a social protection rules that you can reply on. As a self-employed you do not have it.
What is prohibited by Article 49 TFEU?
Market access rights
- Prohibition of discrimination on grounds of nationality
- All restrictions on market access are prohibited (Gebhard, para 37)
Migration rights
- No restrictions subject to Directive 2004/38 (Week 5)
Les:
When we know that is 1 question if we are dealing with establishment and how do we definite it. next step what is prohibited on basis on art. 49
TFEU?
Gebhard, para 37)> four conditions
access in market, but also right to migration. Persons self-employed workers etc. the cross boardings
|Exceptions
Treaty exceptions
art. 51 jo. 52 TFEU
NB Exhaustive list of grounds
Rule of reason-exceptions (mandatory requirements) Gebhard
- NB open list of grounds
Conditions!
Public, non-economic interest
Proportionality (main condition)
Suitable
Necessary
No harmonization
These exceptions grounds are limitative, you can not expand the exceptions grounds. It should really be public policy, public order, public security or the exercise of a official authority (Reiniars case Dutch living in Belgium and having a Belgium law degree wishing to practice as a lawyer, But non Belgium were not allowed to practice as a lawyer, what direct discrimination on nationality even with a Belgium law degree).
Court of justice say no you can not use this exception ground to justice this discriminatory legislation. then we have to think about for example working for the secret services, some jobs like judges.
In Spain, recently, same arguments use by Spain to justified that there were nationality requirements for notaries (notarissen). That is a different function, but this was also not excepted.
We have also a rule of reason-exceptions, like case Gebhard profession reason to protect clients. that was excepted by the court of justice. We are dealing with a general interest. Mrs. Gebhard had to study in Italy. Rule of reason-exceptions was successfully by the Italian state. The court systematically para. 37 the conditions.
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hc aant. 3
Free movement of services
art. 56 TFEU
concept of service
Different kinds of cross-border provision of services
- provider, recipient (go to member state to in order to receive services), service (where the provider and recipient stays in the same member state like media or online shopping, the free movement of services also apply).
Non-tangible (as compared to goods)
- If free movement of goods aspect entirely secondary to services services will apply (Josemans, para 50) (why no goods, Court say we are dealing with services par. 49 and 50 says that here it concerns the marketing of non-alcoholic and food a kind of catering activities. Free movement of goods aspect are entirely secondary to that of the freedom to provide services. it is more about catering to customers in the coffee shop that why art. 56 applies.
- Retail trade in goods services (trade in shoes was providing services, about the condition govern a era where activities related to the sale of goods can be establish it is about condition in order for a company / business to sell products)
(Visser Vastgoed, paras 90-91)
Temporary character
- ECJ: Gebhard, paras 25-27
The Service Directive only applies to services and establishment.
|What is prohibited by Article 56 TFEU?
Market access rights
- Prohibition of discrimination on grounds of nationality
- All restrictions on market access are prohibited (Alpine Investments, para 38) Dutch law prohibited cold calling to customers to afford financial services. marketing technic was prohibited not the provisions of the service in itself. (non-discrimination)
Migration rights
- No restrictions subject to Directive 2004/38
Les:
Again discrimination and alle restrictions on market access.
Exceptions
Treaty exceptions
Articles 51 and 52 TFEU
- NB 1 Exhaustive list of grounds (like public health)
- NB 2 Same exceptions as for establishment!
Rule of reason-exceptions (mandatory requirements) (Alpine Investments, para 44)
- Open list of grounds
protection of the reputation of the Dutch financial market (this is case law, and is not in the list)
Conditions!
Public, non-economic interest
Proportionality
Suitable
Necessary
No harmonization
les:
same with establishment
when a law a national law or measure directly discrimination, can you then invoked the rule of reason? mandatory requirements? Apine Investments only to customers in Belgium in Germany but allowed to Dutch customers probably not. Direct discrimination can only be saved by the treaty exceptions. So rule of reason for establishment and services only applies when you dealing with indistinctly appliable measures.
Freedom of establishment & free movement of services - exceptions
Point of departure: in case of direct discrimination only the Treaty exceptions are available!
Case C-137/09, Josemans:
“While acknowledging the importance of the fight against drug tourism, the Commission submits that, as they are discriminatory, those rules can be compatible with European Union law only if they are covered by an express derogating provision, namely Article 46 EC in conjunction with Article 55 EC. The derogations provided for by those provisions should be interpreted restrictively. As regards more specifically grounds of public policy, they may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society (see, inter alia, Case 30/77 Bouchereau [1977] ECR 1999, paragraph 35).” (Para 62)
IV. The Services Directive
I. Background
- ‘Bolkestein or Frankenstein Directive’
- Harmonisation and/or liberalization?
- In the end: useful administrative simplification & cooperation
- Widespread relevance, also to municipal rules (Visser Vastgoed/Appingedam)
Les: we have 49 and 56 TFEU why do we need this services directive? we have exceptions? member state can still justified restrictions. even discrimination on the basis of the treaty exception.
|Example - Joined Cases C 360/15 and C 31/16, Visser Vastgoed & Appingedam
Rules contained in the zoning plan of the Municipality of Appingedam
Certain geographical zones situated outside the city centre are exclusively designated for retail trade in bulky goods (furniture etc)
Retail trade in shoes and clothing is excluded from these zones
Does the Services Directive apply to the Zoning Plan (bestemmingsplan) of Appingedam?
NB Retail trade in goods such as shoes and clothing falls within the scope of the concept of ‘service’ within the meaning of the Treaty and the Services Directive, and not within the scope of the free movement of goods (paras 90-91)
les: not allowed. Vissers says we have the services directives. does the Services Directives apply? Council of State (raad van State) asks the court of justice. Court of justice say is a service it is secondary the free movement of goods to the free movement of services.
II. Scope of application (Does the directive apply)
Article 1(1) of the SD
- The Directive applies to establishment & services
Article 2(1) of the SD
- The Directive shall apply to services supplied by providers established in a Member State
So not service providers that are established outside the EU. It is about being established in Member State.
Article 2(2) of the SD
- Which services are excluded?
for example financial services including banking or transport services or healthcare services or gambling activities or social services or private security services because these are sensitive for member states, the have a lot of power partly because we have another laws at EU level, example financials services.
- NB Services that are excluded Treaty rules on establishment (49 TFEU) & services (56 TFEU) apply
Article 4 of the SD
- Definitions of services & establishment
So, could the Services Directive apply to the following situations?
The rules in the zoning plan of the Municipality of Appingedam?
yes, because it is not excluded on the basis of art. 2 (2) its scope of
application.
The Spanish law requiring prior authorization for the offering of
online gambling to Spanish consumers?
no, because art. 2(2) is excluded. which rules do apply to
gambling 56 TFEU, the treaty.
Italian law requiring prior authorization for the provision of legal aid in Italy?
yes, mrs. Gebhard for example. It is not excluded.
III. Content of the Directive
Chapter II: administrative simplification
Chapter III: Establishment
- Article 9 SD market access
not more than codification of the Gebhard case. Why does the EU law need to do this if we have case law. If you have a directive legislation you have to implemented in to your national laws. So Dutch or German law have all adapted.
- Articles 14 & 15 SD black & grey lists
Chapter IV: Services
- Article 16 SD market access, but more limited possibilities to restrict free movement of services (e.g. art. 16(1) and (3) SD)
art. 9 and 16 SD are different > art. 9 is very openly formulated, so when it comes to establishment a national legislator implementing the directive can not restrict market access. But it may have good reasons to never the less do so (Gebhard case par. 37).
art. 16 SD > looks very similar but here it says that member states may restrict the free movement of services only for a number of a explicit reasons. it is more nearly formulated.
when you invoke a rule of reason mandatory requirement exception that is a open class of exception, it can be anything. reputation of the financial market falls also under it.
SD closes it down and brings it back to a few exceptions.
What about the rules in the zoning plan of Appingedam?
A) Establishment or services?
Establishment, you want to lease your primers for a undefiant period of time to a shoe seller. So chapter 3.
B) Do the rules (authorization schemes) in the zoning plan make a reference to a cross-border aspect?
Article 9(1) SD
- Member States shall not make access to a service activity or the exercise thereof subject to an authorization scheme unless the following conditions are satisfied:…..
Article 16(1) SD
- Member States shall respect the right of providers to provide services in a Member State other than that in which they are established.
we are dealing with Appingedam, Visser and Bristol. It is a internal situation, there is no EU cross boarder element, is that problematic for the Services Directives? No, the SD and chapter 3 applies (par. 98 of Visser) so yes it applies.
Chapter 4 services temporary activities.
The European Court of Justice in Joined Cases C 360/15 and C 31/16, Visser Vastgoed & Appingedam
“In order to achieve a genuine internal market in services, the approach adopted by the EU legislature in Directive 2006/123 is based, as set out in recital 7 thereof, on a general legal framework composed of a mix of various measures designed to ensure a high degree of legal integration within the European Union, by means of, inter alia, harmonisation with respect to specific aspects of the regulation of service activities.” (Para 103)
Services vs goods
Setting-up businesses for the sale of goods (retail trade)
Digital goods, stored, delivered and used in electronic format?
Services vs workers
Micro-entrepreneurs, on-demand workers, freelancers and contractors
If self-employed: Articles 49 and 56 TFEU are relevant;
If workers: Article 45 TFEU is relevant
Strong role of tech firms, private businesses
Can the freedom of establishment and the
free movement of services be invoked against
private parties?
Addressees of Artt. 49 & 56 TFEU:
Member States and state organs
Private parties, under certain conditions
See also week 5: Bosman with respect to
Article 45 TFEU; Articles 49 and 56 have also
vertical & (limited) horizontal direct effect
hc aant. 3
Negatieve of passieve integratie wordt nagestreefd door middel van primair recht (dat wat in de verdragen is opgenomen)
Positieve integratie of actieve integratie wordt nagestreefd door middel van het uitvaardigen van Europese regels van afgeleid recht (secundair recht)
Negatieve of passieve integratie wordt nagestreefd door middel van primair recht (dat wat in de verdragen is opgenomen)
Positieve integratie of actieve integratie wordt nagestreefd door middel van het uitvaardigen van Europese regels van afgeleid recht (secundair recht)
2 What are the core principles following from the CJEU’s Cassis de Dijon ruling and how do these apply to the free movement of services and establishment?
les:
Principles of Cassis de Dijon (goods)
Core principles: principle of mutual recognition.
German rules says if you want to sell it as liquid it must be higher on 25%, but it had 20%. These rule (rule of German) it needs to be more of 25%. It was not discrimination, German said I have my own rules. It is the same rule for everyone,
Cassis de Dijon:
Court said
Indistinctively applicable measures/ non discrimination > rule of reason
- public interest / aim/ goal
- suitability
- necessity
- proportionality (stricto sensu)
(The three proportionality assesment)
lawbooks:
In Cassis de Dijon, the CJEU recognizes the ‘rule of reason’ for:
Obstacles to movement within the community resulting from disparities between the national laws relating to the marketing of the products in question must be accepted in so far as those provisions may be recognized as being necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer.
Moreover, from par. 14 follows the principle of mutual recognition (or Cassis de Dijon principle’)
Products legally marketed in one EU Member State can, in principle, be sold in any other Member State:
‘There is therefore no valid reason why, provided that they have been lawfully produced and marketed in one of the member states, alcoholic beverages should not be introduced into any other member state; the sale of such products may not be subject to a legal prohibition on the marketing of beverages with an alcohol content lower than the limit set by the national rules.’
Gebhard and Alphine extended scope of application of the rule of reason to the principles of freedom of services and freedom of establishment.
ik:
Rule of reason condition > only possible in the absence of EU harmonization leglislation!
On the basis of the Van Cassis de Dijon judgment, para. 9.
- Only possible for measure without distinction! No direct discrimination.
- No protectionism
- No harmonization measure
- Respect the principle of proportionality.
- suitability of measure = measure must contribute to achieving the goal. (causality)
- necessity of measure = measure may not go further than necessary. Choose the least restrictive solution. This also obliges Member States to investigate the different solutions. - proportionality sensu stricto measure = consideration of the desired goal versus other interests. Least harmful instrument for promoting an interest that is permissible in itself. The national legislator must make a trade-off between market interests and public interests.
2 What are the core principles following from the CJEU’s Cassis de Dijon ruling and how do these apply to the free movement of services and establishment?
Gebhard Case
Relevantie:
In deze uitspraak worden de definities gegeven voor the freedom to provide services and the freedom of establishment. Ook wordt in deze uitspraak een extra verboden maatregel gegeven op het gebied van Europees recht. Naast directe en indirecte discriminatie is nu ook een beperking op het gebied van the freedom of services of establishment verboden die niet zozeer te maken hoeft te hebben met directe of indirecte discriminatie. Dit arrest heeft op dat gebied de reikwijdte van zowel art. 49 als 56 TFEU verruimd. Ook zien we in dit arrest een uitwerking van de ‘rule of reason’ uitzondering terug.
Case facts
Mr Gebhard, a German, lives in Italy with his family. His wife has Italian citizenship as do his three children. Mr. Gebhard has also been working in Italy since the time he lived in Italy. On 30 juli 1989, Mr Gebhard opened his own law firm in Milan. This is because he is authorized to practice as a lwayer in Italy. Some Italian lawyers complained with the Italian bar because Mr Gebhard was the advocate. The complaint by the Italian lawyers resulted in disciplinary proceedings in which Mr Gebhard was suspended for six months.
- Applicable legislation
Art. 49 jo. 56 TFEU and the ‘rule of reason’. - Core rule resulting from the case
1 Definition of establishment in par. 25:
Establishment is about participate on a stable and continuous basis.
2 Definition of services in para. 26:
The performance of an activity under services is temporary in nature (temporary basis).
For temporality, we look at the duration of the provision of the service but also regularity, periodicity or continuity. That services are temporary in nature does not mean that the provider may not have some form of infrastructure in the host Member State such as an office para. 27.
3 In para. 37 we find that a blanket restriction on services and establishment, whether direct or indirect discrimination is prohibited. This paragraph also reflects the rule of reason justification. This requires four requirements to be met. First, there must be a legitimate air. Second, the measure must be suitable and necessary.
les:
Gebhard par. 25 -26
establishment > stable/continuous
services > temporay
Gebhard (establishment) para. 37:
Indistinctively applicable measures / non discrimination > rule of reason
- public interest / aim / goal
- suitability
- necessity
- proportionality (stricto sensu)
(the three proportionality assessment)
Non-discrimination but can be justified by rule of reason.
Gebhard case
Alphine investments case
Case facts
Alphine investments BV is een Nederlands bedrijf (ook gevestigd in NL) dat zich specialiseert in de effectenhandel r.o. 3. Zij kwam in contact met mensen door ze onder hun schriftelijke toestemming op te bellen, om vervolgens diverse financiële diensten aan te bieden. Een fenomeen dat bekend staat als ‘cold calling’ r.o. 2 en 5. Daar was op grond van de Wet Effectenhandel een vrijstelling/vergunning voor nodig en die had Alphine Investments aanvankelijk ook.
Op grond van artikel 8 (2) kon een vrijstelling aan nadere restricties worden onderworpen met het doel ongewenste ontwikkelingen tegen te gaan in de effectenhandel (r.o. 6). Op 1 oktober 1991 besloot de minister van Financiën om deze gang van zaken (‘cold calling’) dus toch te verbieden r.o. 8. Daar deze klachten ten dele afkomstig waren van beleggers uit andere lidstaten, breidde hij het verbod uit tot diensten die vanuit Nederland in andere landen worden aangeboden, teneinde de reputatie van de Nederlandse financiële sector te beschermen r.o 9.
Onder deze omstandigheden verbood de minister van Financiën Alphine Investments op 12 november 1991 om potentiële opdrachtgevers telefonisch of in persoon te benaderen, tenzij zij vooraf uitdrukkelijk schriftelijk hadden laten weten, dat met hen op deze wijze contact mocht worden opgenomen r.o. 10.
Alphine Investments ging vervolgens in bezwaar. Uiteindelijk kwam de zaak terecht bij het College van Beroep voor het Bedrijfsleven r.o. 1 en 12. Alphine Investments gaf aan dat het verbod van cold calling naar andere lidstaten in strijd is met art. 56 TFEU. Het college besloot enkele prejudiciële vragen te stellen aan het hof hierover: r.o. 13
rechtsvragen:
De rechter stelde in casu de volgende prejudiciële vraag:
1 Moet art. 56 TFEU op zo een wijze worden uitgelegd, dat het ook betrekking heeft op de diensten die een dienstverlener telefonisch aanbiedt aan in een andere lidstaat gevestigde potentiële ontvangers en die hij verricht zonder de lidstaat waar hij is gevestigd te verlaten?
2 Levert het verbod van cold calling een beperking op van het vrije verkeer van dienstverlening in de zin van art. 56 TFEU?
3 Indien de tweede vraag bevestigend wordt beantwoord: kan een dergelijke verbod dan gerechtvaardigd worden?
conclusie
1 first question
met betrekking tot de eerste vraag gaf het Hof van Justitie aan dat art. 56 TFEU op zo een wijze moet worden uitgelegd, dat het ook betrekking heeft op de diensten die een dienstverrichter telefonisch aan in een ander lidstaat gevestigde potentiële ontvangers aanbiedt en die hij verricht zonder de lidstaat waar hij is gevestigd, te verlaten r.o. 22.
2 Second question
Bij de tweede vraag keek het Hof van Justitie of het verbod van ‘cold calling’ een beperking oplevert van het vrije verkeer van dienstverlening in de zin van art. 56 TFEU r.o. 23. Het Hof van Justitie concludeerde dat de huidige regeling van Nederland die de op zijn grondgebied gevestigde dienstverrichters verbiedt potentiële opdrachtgevers, gevestigd in andere lidstaten, zonder dat zij daarom hebben gevraagd, op te bellen om hun diensten aan te bieden, een beperking oplevert bij het vrij verrichten van diensten in de zin van art. 56 TFEU r.o. 39. De tegen argumenten zijn in casu niet doeltreffend r.o. 34.
3 The third question
Het Hof van Justitie gaf aan dat er redenen bestaan, zoals het beschermen van de reputatie van de nationale financiële sector, die een restrictie op het vrije verkeer van dienstverlening kunnen rechtvaardigen. De argumenten die Alphine Investments hiertegen inbrengt zijn niet effectief. Het Hof van Justitie concludeerde dus dat art. 56 TFEU niet in de wet staat aan een nationale regeling die, teneinde het vertrouwen van de beleggers in de nationale financiële markten te beschermen, verbiedt om het fenomeen ‘cold calling’ uit te oefenen.
applicable legislation:
art. 56 TFEU
Core rule resulting from the case
Article 56 TFEU also covers services which a service provider offers by telephone to potential recipients established in another Member State and which he provides without leaving the Member State in which he is established par. 22.
In the second question, the Court of Justice looked at whether the ban on cold calling constitutes a restriction on the free movement of services within the meaning of art. 56 TFEU para. 23. The Court of Justice concluded that the Netherlands current leigslation, which prohibits service providers established in its territory from calling potential clienst established in other Member States without their request to offer their services, constitutes a restriction on the freedom to provision of services wihtin the meaning of art. 56 TFEU para. 39. The counterarguments are ineffective in this case par. 34.
The court of justice indicated that there are reasons, such as protecting the reputation of the national financial sector, that can justity a restriction on the free movement of services. The arguments that Alphine Investments puts forward against this are ineffective. The Court of Justice therefore concluded that art. 56 TFEU does not preclude national legislation which, in order to protect investor confidence in national financial markets, prohibits the practice of cold calling.
les:
landen van beide kanten mag het niet .Cross -bording was er, dus bellen is ook cross border element en je hoeft niet land te verlaten.
Alphine investments case
Josemans case
Relevantie
in dit arrest komt naar voren dat illegale situaties zoals de verkoop van softdrugs niet onder de regels omtrent the freedom to provide services en the freedom of establishment vallen. Daarnaast kun je in dit arrest uitleg terugvinden van het vereiste ‘suitable’ wanneer je een justification uitwerkt.
Case facts
Mr Josemans runs a coffee shop called ‘easy going’ in the municipality of Maastricht. In the coffee shop, soft drugs, non-alcoholic drinks, and food can be bought.
In the Netherlands, there is a so-called tolerance policy. Selling soft drugs is illegal, but no criminal sanctions follow. Under the APV, non-residents in the Netherlands can not be admitted to coffee shops. Based on two reports stating that such non-residents were allowed into Josemans coffee shop, the mayor closed the coffee shop. Mr Josemans argued that this measure in the APV was a form of indirect discrimination.
- Applicable legislation
The condition ‘suitable’ when you look at the justification art. 49 and 56 TFEU. - Core rule resulting from the case
Illegal goods such as soft drugs can not fall back on art. 49 and 56 TFEU par. 42.
When we deal with public policy and the exception this ground can form, it may only be relied on if we can determine a genuine and sufficiently serious threat to a fundamental interest of society par. 62.
A measure can be suitable if the objective is pursued in a consistent and systematic manner par. 70.
The fact that the discriminatory nature of a measure is there does not mean that the objective is observed in a consistent and systematic manner par. 76.
les:
services not good, was the way he sold it. Illegal goods, they are not covered by EU law.
Beoordeling:
1 In par. 42 we can find that illegal goods such as soft drugs can not fall back on articles 49 and 56 TFEU
2 When we deal with public policy and the exception this ground can form, it may onle be relied on if we can determine a genuine and sufficiently serious threat to a fundamental interest of society par. 62.
3 A measure can be suitable if the objective is pursued in a consistent and systematic manner par. 70.
4 the fact that the discriminatory nature of a measure is there does not mean that the objective is observed in a consistent and systematic manner par. 76.
Josemans case
Visser Vastgoed / Appingedam case
Relevantie:
In dit arrest komt naar voren dat voor de toepassing van the Services Directive niet vereist is dat er sprake is van een cross-border element. Tevens kun je in dit arrest terugvinden hoe het juridisch kader uiteengezet dient te worden wanneer de Services Directive toegepast wordt.
Relevant facts
The municipality of Appingedam contains a shopping area with mainly retail. According to the zoning plan, the shopping area is only suitable for retail trade such as furniture, kitchens, home furnishings, building materials, garden equipment, equestrian equipment, automobiles and materials. Visser which has retail premises on the residential square wants to rent out a property to Bristol.
Appingedam City Council noted that a shoe shop like Bristol should only be allowed to establish itself in the shopping centre to reduce vacancy in the inner-city area.
Applicable legislation
Service Directive
In para. 113-136 the legal framework of the Services Directive is explained and applied to the case of Appingedam.
Key considerations:
- par. 115: the restriction in the Appingedam case can not be seen as an authorization scheme.
- par. 131: the restriction in this case can be seen as territorial restriction, listed in art. 15(2) SD
- par. 132: the requirements of art. 15 (3) SD must be fulfilled
- Par. 134 and 135: protecting the viability of the city centre of Appingedam can be seen as an overriding reason relating to the public interest.
- par 136: all the requirements of art. 15 (3) SD are fulfilled. The territorial restriction can be justified.
- Par. 110: they also apply to a situation where all the relevant elements are confined to a single member state.
les:
fully in the Nederlands and court of justice said EU law applies
Visser Vastgoed / Appingedam case
Negative integration is, as I say, about removing obstacles to free movement, but with Member States keeping their own domestic frameworks (instead of harmonising their legislation at the EU level via, for example, a directive).
Negative integration is, as I say, about removing obstacles to free movement, but with Member States keeping their own domestic frameworks (instead of harmonising their legislation at the EU level via, for example, a directive).
The Visser Vastgoed judgment refers specifically about Chapter III of the Services Directive, which is about freedom of establishment. For services there is still a need for a cross-border element (see paragraph 102 of the Visser case).
For establishment by SD no need for cross border element !!!
The Visser Vastgoed judgment refers specifically about Chapter III of the Services Directive, which is about freedom of establishment. For services there is still a need for a cross-border element (see paragraph 102 of the Visser case).
- What techniques of economic integration can be identified? How do these connect to the Treaty Articles on the free movement of services & establishment and the Services Directive?
- Negative and deregulatory integration:
National rules that hinder cross-border trade are prohibited at the EU level by law. You can see through the course that the EU has developed four freedoms that are based on this mode of economic integration. The rules of these freedoms prohibit national rules that conflict with the internal market and prohibit cross-border trade. Mutual recognition enhances this technique. Mutual recognition makes sure that Member State acknowledge goods that have been produced according to the national rules of another Member State. - Positive integration:
How Member States interpret and implement EU law can vary from country to country and suit how a particular country is governed. However, it can be undesirable if a single European rule is applied in many ways. To solve this problem, the system of harmonization was born. Through secondary EU law, the different national approaches are regulated at the EU level by, for example, a Directive. The effect of harmonization is that there is no longer any difference in applying EU law between different Member States.
Tip: directives > richtlijnen. Deze richtlijnen zijn dus vormen van harmonisatie, waarin de Europese Unie ervoor heeft gezorgd dat lidstaten bepaalde onderwerpen niet meer op verschillende wijzen kunnen toepassen.
les:
negative > each member state has our rules. We eliminated rules
positive integration > harmonization. All the EU member states has the same.
art. 49 TFEU > establishment
art. 56 TFEU > services
the articles follows the negative integration.
directive is a example of positive integration.
- What techniques of economic integration can be identified? How do these connect to the Treaty Articles on the free movement of services & establishment and the Services Directive?
- Negative and deregulatory integration:
National rules that hinder cross-border trade are prohibited at the EU level by law. You can see through the course that the EU has developed four freedoms that are based on this mode of economic integration. The rules of these freedoms prohibit national rules that conflict with the internal market and prohibit cross-border trade. Mutual recognition enhances this technique. Mutual recognition makes sure that Member State acknowledge goods that have been produced according to the national rules of another Member State.
- Positive integration:
How Member States interpret and implement EU law can vary from country to country and suit how a particular country is governed. However, it can be undesirable if a single European rule is applied in many ways. To solve this problem, the system of harmonization was born. Through secondary EU law, the different national approaches are regulated at the EU level by, for example, a Directive. The effect of harmonization is that there is no longer any difference in applying EU law between different Member States.
Tip: directives > richtlijnen. Deze richtlijnen zijn dus vormen van harmonisatie, waarin de Europese Unie ervoor heeft gezorgd dat lidstaten bepaalde onderwerpen niet meer op verschillende wijzen kunnen toepassen.
les:
negative > each member state has our rules. We eliminated rules
positive integration > harmonization. All the EU member states has the same.
art. 49 TFEU > establishment
art. 56 TFEU > services
the articles follows the negative integration.
directive is a example of positive integration.
