Finale Flashcards
Grogan
Abortion
Services
R (Watts) v Bedford Primary Care Trust
British NHS - in contrast to Kohlls & Gereats-Smits Peerbooms, this concerned not reimbursement out of a health insurance scheme, but reimbursement under free medical treatment scheme funded out of general taxation.
Held: Treaty article still applicable.
Prior-Authorisation Condition (Requirement). GR and any exceptions?
GR: A retriction on the freedom to provide services.
Exceptions: Can be justified for reasons set out in Gereats-Smits and Peerbooms: the planning. But it has to be done PROPORTIONATELY (objective + based on a non-discriminatory criteria).
Prior-Authorisation Condition (Requirement). GR and any exceptions?
GR: A retriction on the freedom to provide services.
Exceptions: Can be justified for reasons set out in Gereats-Smits and Peerbooms: the planning. But it has to be done PROPORTIONATELY (objective + based on a non-discriminatory criteria).
Types of Rights granted by Article 56 TFEU?
- Right to move and reside to PROVIDE Services
- Right to move and reside to RECEIVE Services
- SOCIAL Rights
People categorised as being recipients of services
Tourists
Moving for medical treatment
travel for business
travel for education
Types of PUBLIC Rights granted by Article 56 TFEU?
- Education (distinguish Private v State education)
- Health Care (Reimbursement. Under Insurance Scheme + Free Scheme)
- Other: Museum (tourism spot)
Lawyers Services Directive
Directive 77/249: Regulates the AUTHORISATION to PROVIDE legal services
Professional Qualification as a Lawyer addressed under which Directive?
Directive 2005/36 under Title II
Professional Qualification as a Lawyer addressed under which Directive?
Directive 2005/36 under Title II
Establishment
Article 49
- Permanent Residence
Commission v Germany (Insurance Services)
An insurance undertking of another MS which maintains a PERMANENT Residence in the Member State in question comes within the scope of the provisions of the Treaty on the right of establishment, even if that presence does not take the form of a branch or agency, but consists merely of an OFFICE managed by the undertaking’s own staff, or by a person who is independent but authorised to act on a permanent basis for the undertaking, as would be the case with an agency.
Commission v Germany (Insurance Services)
An insurance undertking of another MS which maintains a PERMANENT Residence in the Member State in question comes within the scope of the provisions of the Treaty on the right of establishment, even if that presence does not take the form of a branch or agency, but consists merely of an OFFICE managed by the undertaking’s own staff, or by a person who is independent but authorised to act on a permanent basis for the undertaking, as would be the case with an agency.
R v Secretary of State for Transport ex parte Factortame Ltd (Factortame II)
The concept of Establishment involves “the actual pursuit of an economic activity through a FIXED establishment in another MS for an INDEFINITE period”
Gebhard
Set the basis for distinguishing establishment and services
- R
- P
- C
Gebhard
Set the basis for distinguishing establishment and services
- R
- P
- C
Gebhard
“The stable and continuous basis”
Reyners v Belgian State
Direct Effect for Article 49
Vertically
Direct discrimination based on nationality
Dutch national - legal education in Belgium - rejected by the Belgian Bar
Viking Line (International Transport Workers Federation v Viking Line)
Horizontal Direct Effect applying to NOT ONLY orgs/associations exercising a regulatory task (or with quasi-legislative power), but also TRADE UNIONS or GROUPS OF TRADE UNIONS
– The COLLECTIVE dimension requirement/agreement
here, the collective action to prevent a ferry from being registered in another state: a restriction
When it does not fall within the scope of Article 49 (2)
- Official Authority Exercise
- Internal Situation (purely)
Reyners
Avocat: NOT official authority job.
Commission v Greece
professional activity of road traffic experts: NOT official authority
Commission v Italy (Data Processing)
The designing… programming, etc. for public authorities: NOT official authority
Commission v Italy (Lottery Computerisation System)
NOT official authority
Thijssen***
Post Commissioner of INSURANCE Companies: NOT official authority. Though involves monitoring companie + reporting infringements of the penal code… lacks the FINAL POWER to stop insurance comps from pursuing certain policies
DO NOT be confused with Thieffry. This is Thijssen with a J** in there ***
Thijssen***
Post Commissioner of INSURANCE Companies: NOT official authority. Though involves monitoring companie + reporting infringements of the penal code… lacks the FINAL POWER to stop insurance comps from pursuing certain policies
DO NOT be confused with Thieffry. This is Thijssen with a J** in there ***
Internal Situations
AKAA Auer (1) Knoors**** Auer (2) Asscher
Ministre Public v Auer
Vet
French national with Italian Qualification. Back in France.
Article 49 could NOT be relied upon as article only deals with nationals of OTHER MS*
Knoors v Sec of State for Economic Affairs
Plumber.
Dutch national. in Belgium.
Used Directive 64/427 rather than Article 49
Directive 64/427***
Requires MS to accept a sufficient evidence of knowledge and ability the fact that the activity in q has been pursued in another MS for a certain specified period.
Directive 64/427***
Requires MS to accept a sufficient evidence of knowledge and ability the fact that the activity in q has been pursued in another MS for a certain specified period.
Auer no 2
Knoors use
BUT only if it satisfies the requirements of the directive (goes back to VGL)
Asscher
Sufficient cross border element => then Article 49 itself can be applicable.
Dutch national residing in Belgium
Companies in both Belgium and Holland.
Taxed at higher rate in Holland as a non-resident receiving a hgh level of income from outside holland. he challenged this using article 49.
held: this is not purely internal, b/c he was being taxed differenty as a result of him exercising his treaty rights.
Asscher
Sufficient cross border element => then Article 49 itself can be applicable.
Dutch national residing in Belgium
Companies in both Belgium and Holland.
Taxed at higher rate in Holland as a non-resident receiving a hgh level of income from outside holland. he challenged this using article 49.
held: this is not purely internal, b/c he was being taxed differenty as a result of him exercising his treaty rights.
Nino
Italian nationals. residents in Italy.
purely internal situation.
Examples of YES these ARE restrictions (hence breach of article 49)
Thieffry
K
G
C
Thieffy
Belgian.
Belgian doc in law.
French university acknowledged
but when applied for bar, refused.
Klopp
Rule by Parisian bar that prevented members from MAINTAINING OFFICES in other MS. notwithstanding this applied irrespective of nationality of applicant.
here German national could not apply for membership successfully.
*this is an impediment to freedom of establishment, irrespective of WHETHER OR NOT it has discriminatory quality.
Gebhard
German national. pursued the profession of lawyer in Italy for many years. Milan Bar Counci ldisciplined him for using the title without hving first obtained the recognition of his qualifications.
COJ: national measures which are liable to hinder or make less attractive the exercise of this freedom is a restriction
Caixa-Bank France
Confirmed COJ decision in Gebhard: any national measures… prohibit, impede or render LESS ATTRACTIVE the pursuit of an occupation in more than 1 MS: sufficient to amount to a restriction under Article 49.
Overriding Reasons in the Public Interest case for Free Movement of Goods
Cassis de Dijon
Overriding Reasons in the Public Interest case for Free Movement of Persons (2)
Kraus v Land-Baden
Union Royale Belge des Societes de Football v BOSMAN
Gebhard’s 4 conditions in where national measures which limit/impede/make less attractive is allowed (3 but the last point split into 2)
1) Applied in a manner that is not discriminatory
2) Imperative Requirement in the general interest
3) For the pursued objective
4) Not go beyond what is necessary
Firms Def
Agglomeration of persons
2+
partnership
Companies Def
similar rights to that of persons in the freedom of persons
but the diff: needs to be profit-making
Factortame II
which distinguished firms v companies:
requiredm majority shareholders in a company owning british ships to be british
- held to be a breach of article 49
deals with the Merchant Shipping Act 1988: COJ holding that the reqs in this act breached article 49 with this requirement stated above
Companies: The Incorporation Doctrine
Countries
Q) What is the “connecting factor” to determine for a company WHICH MS’ legal jurisdiction should govern the company?
4: UK Ireland Netherlands Scandinavian countries
Companies: The Real Seat Doctrine
Q) What is the “connecting factor” to determine for a company WHICH MS’ legal jurisdiction should govern the company?
The other companies
France, Germany, Greece, Belgium, Hungary, Luxembourg, Spain, Portugal
The Right of a company to set out branch/agency/subsidiaries (the Case Trio to remember)
S C Kamer Inspire Art = Segers Centros Ltd Kamer v Inspire Art
Segers v Bestuur… Banken
Comp can have a place of incorporation + place for subsidiary. even if no business is conducted in the MS in which it was incorporated and conducts only through an agency/branch/or subsidiary in another MS.
Effect: Gives trader wide freedom of choice.
Also allowed them to take advantage of countries with more lenient rules ie. UK.
UK rules usually for incorporation: lenient.
Dutch legislation is tough
Centros Ltd
Comp incorporated in the UK.
Bought by 2 Danish nationals who both resided in Denmark.
Comp sought to set up a branch in Denmark but the Danish Trade Board refused to register the branch, accusing them of circuventing the min share capital req under Danish law. This is an ABUSE of the freedom!
COJ: rejected board’s argument.
People from doing this, in itelf, is not an abuse- they are just exercising their right under the freedom.
Kamer… voor Amsterdam v Inspire Art
On Dutch rules for a FOREIGN COMPANY – yes they can set up a branch here – but if they do they need to maintain a minimum share capital at least…to that of Dutch comps.
Facts:
Comp incorp. in the UK. but owned and run by Dutch national + traded solely through a branch in the Netherlands.
Req of Dutch Law: Any foreign comp. that established a branch in Netherlands: to MAINTAIN THE MINIM SHARE CAPITAL at least equal to those req by Dutch companies.
Hence foreign comps setting up branches is not a prob. but this requirement of share capital requirement held to be impeding freedom of est.
Daily Mail and General Trust Plc
Company incorporated in the UK. Central managemenet + control in UK. Wants to remain incorporated in UK, but to move central mangement to Netherlands.
This is allowed but.
The requirement of UK legislation: the tax legislation stated that the comp would continue to be considered resident in the UK until consent of the Treasury had been obtained.
Daily Mail and General Trust Plc
Company incorporated in the UK. Central managemenet + control in UK. Wants to remain incorporated in UK, but to move central mangement to Netherlands.
This is allowed but.
The requirement of UK legislation: the tax legislation stated that the comp would continue to be considered resident in the UK until consent of the Treasury had been obtained.
Mandatory Reqs for Free Movement of Goods.
Imperative Reqs for Free Est + Service.
The terminologies
Derogations provided for by the Treaty Article same term (just diff article no.s)
These are the additional ones provided for by COJ
Uberseering BV v Nordic Construction
The MUTUAL RECOGNITION OF COMPANIES by MS*
Comp incorproated in the Netherlands.
Subsequently bought by German nationals who resided in Germany.
New owners TRANSFERRED CENTRAL ADMIN to Germany.
German law: does not recognise the “CAPACITY” of a comp which had been incorporated outside of Germany. hence conseque. the comp has no capacity to brng proceedings to German court for the contractor… defective work… UNLESS IT REINCORPORATED IN GERMANY.
The significance of Uberseering Case
Mutual recognition of COMPANIES in their VALIDITY and CAPACITY by Member States.
Distinguishuing Uberseering from Daily Mail
Daily Mail: relations between a Comp and MS under whose laws it had been incorporated (direct relationship; 2)
Uberseering: How one MS treats a company which was actually validy incorporated under the (rules of) another MS.
Further Rights granted by Article 49
When saying “further rights”, we are talking of:
Right to Entry and Residence
Social Rights
Commission v Italy (Italian Housing)
that only italian nationals can purchase or lease housing built with the help of public funds.
and to obtain a reduced rate mortgage.
held to be a breach of article 49.
The issuing of Directives to provide for the mutual recognition of qualifications
= The SECONDARY legislation providing for the recognition of professional qualifications: article 53 TFEU allows for the issuing of directives
+ the COORDINATION of provisions in MS concerning the taking-up and pursuit of activities as self-employed persons.
The evolution of the directive
for the mutual recognition of professional qualfications
p. 141
- Directive 89/48
Directive 92/51
- Directive 2001/19 (“The Simplification of Community Legislation Directive”)
- Directive 2004/36
Remember however that secondary legislature falls as the FALLBACK Option to all
Thieffry
Paris Bar held to not be able to deny Thieffry admission to the training stage on the ground that he did not have the French law degree ONCE HIS BELGIAN DIPLOMA HAD BEEN RECOGNISED BY THE FRENCH UNI AS THE EQUIV TO THE FRENCH LAW and he had indeed passed the exam for the certificate to practice as an avocat
UNCECTEF v Heylens*
Req by host MS to decide concerning mutual recognition on an OBJECTIVE basis. + person informed of reasons behind the decision.
Vlassoupoulou
diff from Heylens and Thieffry in that NO provision of national law concerning mutual recognition existed: German law.
Greek person. Greek Law.
Practised in Germany for sev years however. Then applied admission to the Gemran bar.
Refused on grounds she had not passed German exams.
COJ: The bar needs to TAKE INTO CONSIDERATION the KNOWLEDGE and QUALS of the applicant from the foreign dipoma + compare.
a) If equivalent based on this judgment: must be recognised.
b) if PARTIALLY equivalent: then additional reqs can be imposed on the applicant i.e. course of study or practical experience.
Fernandeza de Bombiladda v Museo Nacional del Prado
When you bring foreign qualification BACK TO HOME MS.
Spanish national. Went to UK with a grant from Spanish national museum. 3 years temporary contract for Prado museum. Seh then applied for a permanent spot.
rejected on grounds that her qualification obtained in UK not recognised as equivalent in Spain.
Held: she can rely on the VLASSOUPOULOU principles.
Circumstances provided + the assessment of her knowledge + abilities.
The similarity between Thieffry and Heylsn
they both had national laws which covered for the provision of mutual reognition of equivalent foreign qualifications by a competent national authoirty
Tawil-Albertini
Lebanon. Dentistry. Regocnised in Belgium. But not in France. Held: one MS' acceptance of mutual reccognition cannot be a reason to bind other MS Directive 78/686 could NOT be relied upon. Not between MS. This is a non-EU qualification.
Haim
Turkey. Dentistry. Recognised in Belgium. But not in Germany. Directive 78/686 could NOT be relied upon. Not between MS. This is a non-EU qualification. BUT under Vlassoupoulou, should still need to make the examination on the exprience as required by the Harmonising Directive.
Hocsman
Cases of Vlassoupoulou, Tawil-Albertini and haim, etc. address case where professions that are not provided for by the mutual recognition directives.
These case still remain relevant when deaing with where mutual recognition directive DOES cover the profession in question like this case.
Argentinian qualification.
Recognised in Spain. as equiv. to spanish req in medicine.
undertook further training in spain.
then in France: refued to allow him to practice med there.
COJ: held that the applicant COULD rely upon, this time DIRECTLY under Article 49 even though there was a Harmonising Directive and his Argentinian qualif did not satisfy that directive.
