FOE - Facts and cases Flashcards
Article 49
Freedom of establishment - Restrictions on FOE for EU citizens shall be prohibited. Broad application.
Steymann
Establishment differs to services in terms of permanency
Gebhard
Participation on a stable and continuous basis
Reyner - Distinct discrimination
Not allowed to practice as a lawyer in Belgium as he was Dutch
Klopp - Indistinct discrimination
German lawyer, wanted to join Paris bar. However French law stipulating that you cannot have foreign practices meant this was a barrier to foreign national entry to French law. Indirect discrimination
Theiffry - indirect discrimination
Belgian national who did degree and phd in Belgium, wanted to join Paris bar. French university graded his qualifications as excellent, and equivalent to French lawyer. Paris bar denied entry as needed specific qualification. Did not have to be French, but did have to have French qualification to join bar. This is indirectly discriminatory, and EU said this is not allowed. There must be a principle of mutual recognition of non-MS qualifications
UNIECTEF v Heylens
French football academy refused to recognise Belgium football coaches qualifications (had to recognise due to principle of mutual recognition)
Vlassopoulou
Greek lawyer, Germany would not recognise his qualifications. Not allowed, principle of mutual recognition
Fernandez de Bobadilla
Spannish did first degree in US, in art history, then did post grad in UK. Worked in Spain at Prado, to get promotion in Spain had to have extra qualifications which she already had in other countries but not spannish version. Restrictions on recognition of qualifications is justified provided it fits an objective test and fills a gap between foreign qualifications and MS national qualifications.
Hocsman
must recognise qualifications, and work experience for EU citizens.
Hugo Fernando
Extends Bobadilla approach to situations where a profession was equally recognised in all MS
What is the test for whether a barrier to FOE is permitted?
Gebhard;
- Barrier is applied in a non-discriminatory manner
- Required in general interest
- Suitable for attaining objective
- The barrier is proportionate
What constitutes a restriction to FOE?
CaixaBank France - Test of obstacle to freedoms widened to anything which should prohibit impede or render less attractive
Gebhard
German lawyer practicing in Italy, was not allowed to use the title of advokato. This had large impact on his business. ECJ ruled he was allowed to use title, and set a test as to when a barrier
How are non-EU qualifications regarded in relation to mutual recognition?
No obligation to recognise qualifications, however obligated to recognise experience
Haim
Qualified Dr in Turkey, however not recognised by Belgium, but had been practicing as Dentist in Belgium, therefore Belgium could not make Haim do Belgian qualifications as had to recognise experience
Tawil Albertini
Lebanese dentist - If a non EU qualification has been recognised by some MS, it doesn’t automatically mean its recognised by others. In this case the applicant did not have a lot of experience in EU so could not automatically rely on FOE
When can FOE be relied on domestically?
Yes;
- If no abuse of community rights
- If there is a cross border element
Knoors
Dutch national qualified in Belgium, then returned to Holland to practice. This is art 49 case as he crosses border to get qualification. Could not be restriction on establishment
Asscher
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
Borekmullen
Must ignore national law and follow EU law regarding recognition of non-MS qualifications
What piece of legislation governs the recognition of qualifications where there is no MS law?
D2005/36
How are job’s categorised?
Art 10-15 dependent on education levels
Qualifications outside the EU are governed by what legislation in relation to recognition?
D2005/36 - Where the non-EU national has been working for 3 years in a MS which recognises his qualification, the MS must allow FOE
Lawyers D77/249
Can represent client in another MS
Lawyers establishment directive 98/5
Can practice in another MS on a permanent basis
Wilson
UK law requiring language skills for foreign practice. Argued that was dependent on quality of work. h was still successful not speaking foreign lanugage
Recognition of professional qualifications directive 2005/36
o Foreign lawyers moving to MS may have to do test or take top up course to practice as lawyer in MS.
C v Germany
Any lawyer working in Germany must have German lawyer working with them
Art 54
Companies can be established anywhere in the EU
Steinhauser
To be established anywhere, company must be profit making enterprise
Viking line
Pervasive right, can move states as is beneficial to company. In this case they moved to avoid a unionized state
Centros
Not allowed to set up branch in another MS. Breach of FOE
Daily Mail
Tried to move head office to pay less tax but were not allowed as had not paid outstanding corporate tax in UK
Commission v France
French company branches in other states had branches taxed by French state as if they were in France but received none of the benefits
M & S v Halsey
Breach of article 49. Cannot offset losses in one country against profits in another
Article 51
– FOE does not apply to activities which are connected to the exercise of official authority
Commission v Italy
Set up lottery and stated everyone had to be Italian setting up the computer system had to be Italian on basis of official authority. Not allowed.
Commission v Greece
Road traffic exert if Greek (not justified)
Thijssen (Insurance Services)
Derogation Art 51 defined narrowly - Commissioner of insurance companies does not fall under this exception - lacked final powers to stop companies pursuing certain policies
Aricle 52
Public policy, health and security
Commission v France
All biochemical companies should be French -Denied
