Free Movement of Establishment

Question 1

Factortame II

Answer 1

The actual pursuit of an economic activity through a fixed establishment in another Member State for an indefinite period

Question 2

Gebhard

Answer 2

Right of establishment means that all kinds of self-employment may be set up and carried out in all Member States and a person may be established in multiple Member States if on a stable and continuous basis. National measures liable to restrict exercise of rights must: (1) be applied in a non discriminatory manner, (2) be justified by imperative requirements in the general interest, (3) be suitable for securing the attainment of the objective which they pursue, and (4) not go beyond what is necessary.

Question 3

Jany

Answer 3

Self employed person must work outside a relationship of subordination, and the risk lies with them as to the success or failure, they must be paid. Prostitute case.

Question 4

Reyners

Answer 4

Article 49 has direct effect - Dutch national was prevented from setting up law practice in Belgium due to his nationality.

Question 5

Walgrave & Koch

Answer 5

Prohibition of discrimination does not affect public bodies, but extends to rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services.

Question 6

Viking Line

Answer 6

Article 49 may be relied upon by a private undertaking against a trade union - there is horizontal direct effect.

Question 7

Klopp

Answer 7

Lawyer was prevented from secondary establishment, French authorities were justified to require French lawyers to abide by rules of ethics to safeguard client-lawyer relationships.

Question 8

Gullung

Answer 8

G couldn’t register at the bar because of previous bad behaviour. Rule applied to nationals and other EU citizens but there was indirect discrimination against G, but it was held to be justified and proportionate.

Question 9

Konstantinidis

Answer 9

Greek national was self-employed in Germany, name was entered wrong on marriage register, said it could confuse clients. Court held there was no proper justification for misspelling his name and not correcting it, member states should have processes for such events.

Question 10

Steinhauser

Answer 10

German artist wasn’t allowed to participate in tendering for premises, was discriminatory.

Question 11

Thieffry

Answer 11

Breaches of Articles 49 and 53 were found, directive ensuring mutual recognition had not yet been implemented.

Question 12

Patrick

Answer 12

British architect wanted to practice in Greece, mutual recognition directives hadn’t been implemented, but it was held that Article 53 had direct effect.

Question 13

Heylens

Answer 13

Member States are entitled to objectively assess whether or not there are equivalent qualifications for some professions.

Question 14

Vlassopoulou

Answer 14

Member States may assess whether the knowledge acquired in a Member State may be sufficient to boost up qualifications which are only partially equivalent to that of those in the host Member State.

Question 15

Dreesen II

Answer 15

Belgian authorities refused to recognise a qualification which wasn’t on list of directive, held that the German authorities had erred in leaving it off the list.

Question 16

Daily Mail

Answer 16

Right of departure - tried to avoid taxes by moving business assets to Netherlands, should have had permission from UK, held that departure from a MS can be regulated by domestic law.

Question 17

Catesio

Answer 17

Hungarian company wished to move to Italy but remain Hungarian, domestic law require the company wind up and start anew, Court held that reconstitution of company was within Article 49.

Question 18

Commission v Italy (Securities Dealing)

Answer 18

Right of establishment covers all measures which permit or facilitate access to another member state and pursuit of an economic activity in that state by treating EU citizens the same as national operators.

Question 19

Centros

Answer 19

Denmark had requirement of certain amount of capital before business could be registered, court held that less restrictive measures could have been used.

Question 20

Uberseering

Answer 20

German requirement of reincorporation was tantamount to the outright negation of freedom of establishment.

Question 21

Cadbury Schweppes

Answer 21

Benefiting from more favourable legislation not in itself breach of Article 49, different treatment of resident companies based on whether they had a controlling holding of a foreign subsidiary constituted a restriction on the free movement of establishment contrary to Articles 49 and 54. Objective must be able to prevent conduct involving the creation of wholly artificial arrangements and requirement of proportionality.