Free Movement Of Goods Flashcards
Temporary nature has to be determined in the light of…?
Not only of the duration of the provision of the service but also of its regularity, periodicity or continuity
Even where neither the service provider not the recipient travels, the transaction could still fall within the scope of article 56 if the what travels?
The service itself - internet services (gambling online)
When a service provider/recipient wants to prove a service they need:
Physical access and access to the market
Is remuneration necessary? Case?
Yes - e.g. Grogan - because they were not distributing information on behalf of a service provider and therefore they were not providing a service in return for remuneration.
Is profit necessary? Case?
No - jundt.
Why has the application of article 56 for gambling proved hard?
When it is online is it covered by article 56? Should it be? Matter of national and political sensitivity - lotteries linked to social activities. How far should the state intervene?
CJEU has rules that gambling, including online gambling satisfies the test for a service under art 56- true or false?
True
Restrictions - generally state measures that prevent or impede market access (gambling services) have been categorised as restrictions (56) as in:
Schlindler - uk lotteries prohibited - non discrim restrictions - had to satisfy justification and proportionality.
Anomar - Portuguese law gambling could only take place in casinos restricted to certain areas. Restriction!
Restrictions (2) which 2 cases?
Commission v Greece - certain computer games could only be installed in casinos. Deemed to constitute restriction.
Carmen media group - gambling activities restricted to public or private monopolies designated by state. Restriction!
Restrictions (3) - what cases?
Placanica - individuals/companies providing betting or gambling decries needed police authorisation or license. Criminal penalties - a restriction.
Zeturf - Italian national rule confining horse betting to 1 company - restriction.
What type of hindrance approach has the court used to restrictions?
A broad one. Any measure that hinders or impedes the provision of services is prohibited.
What is the case for advertising restrictions?
HIT hoteli - article 56 will apply to restrictions on advertising in the host state of gambling services that are lawfully provided in the home state. Prohibits a wide array of national rules.
Justifications - is the state flexible or strict towards to states? Why?
Flexible. Reflects lack of consensus and controversial nature of gambling.
Justifications (1) - contrast which British case with which Italian one?
Schindler - UK ban on lotteries justified to protect social, moral and religious problems with gambling. Despite fact UK was in process of creating national lottery!
Zenatti - sports betting could only take place through specially licensed bodies who were required to donate some funds to promote sporting activities in deprived areas. Couldn’t be justified. Would be possible to invoke a justification relating to reducing gambling opportunities provided that the financing of social activities was only an incidental consequence.
Proportionality - has the CJEU been flexible?
Relatively! Has to be an appropriate means of achieving the objective that MS is looking to carry out.
In hat case did the CJEU not even consider proportionality?
Schindler.
Proportionality is justified as it is an incredibly sensitive issue for member states, due to a lack of…?
Consensus
Proportionality (1) - what are the facts of laara?
Finland have exclusive rights to run slot machines to a public body with revenue forming state resources. Justified restriction to prevent social problems of gambling and proportionate. Slot machines discretion of states - broad approach!
Proportionality (2) recent cases demonstrate CJEU is willing to intervene where the national measure is clearly disproportionate. But inconsistent! What did gambelli say?
Could not benefit from a justification as sending people to jail is a disproportionate way to protect from social problems of gambling
Contrast lindman with…?
Commission v Spain.
Lindman bad case! Taxed Finnish lottery kinder than others - social measure to protect damage. No logical reason but allowed to do so.
In commission v Spain - only lottery winnings from Spanish loto winners were exempt - directly discriminate so not justified. INCONSISTENT.
CJEUs case law on proportionality requires MS to be consistent as seen in
Carmen.
Freedom of establishment and freedom to provide services apply to who, and what nature of businesses?
Those which are temporary and the actions of self employed person.
Gebhard distinguished between FoE and FoS.
