Free Movement of Establishments / Services Flashcards
How to begin?
Can it rely on Services Directive?
2(1) - Scope
4(1) - Definition
2(2) and 2(3) for Exceptions
Establishment or Service
Directives; lay out 49 and 56; Gebhard, stable and continuous
Treaty; relates to self-employed, Gebhard
Introduce Treaty Articles
49
- Prevents restrictions for freedoms of establishment
- Can be relied on in home MS (Halsey)
- On same grounds as nationals
- Available to individuals, companies (54), businesses w temp services (56)
- Direct effect (Reyner)
56
- Prevents restrictions for freedoms of services
- Can be relied in home MS (Alpine Investment)
- Same grounds as nationals
- Direct effect (Van Binsbergen)
Is there a restriction (Directives)
49
- ALL prohibited reqs. not justifiable
- Authorisation schemes ok
- All others must be NECESSARY, justified on grounds of policy, health, security, PROPORTIONATE
56
- ALL prohibited reqs. not justifiable
- All others must be NECESSARY, justified on grounds of policy, health, security, PROPORTIONATE
Is there discrimination? (Directives)
Both disallow all requirements that are directly, indirectly and non discriminatory.
Gebhard - National measures which are liable to prevent or make less attractive the exercise of rights guaranteed by treaties.
49
D - Reyner
ID - Commission v Italy
ND - Sodemare
56
D - Reyner
ID - Binsbergen
ND - Sagre
How to justify direct discrimination?
Through treaty exceptions only!
51:
- Policy (must be serious and in strong public interest - Omega)
- Security
- Health
52 - related to exercise of state authority (again narrowly interpreted) Reyner
Justify indirect?
Cassis as applied in Gebhard (49) or Alpine Investments (56)
- Non-discriminatory
- Imperitave requirement of general interest
- Suitable to fulfill objective
Proportional?
- Necessary
- Proportional
- Not beyond what is necessary
