Free movement of persons (The Freedom of Establishment of Self-Employed Natural Persons) Flashcards
When is there a self-employed natural person?
Article 49 TFEU states that the freedom of establishment shall include the right to take up and pursue
activities as self-employed persons and to set up and manage undertakings, in particular companies or
firms.
Can someone be a worker and a self-employed person?
if someone is a worker, that person cannot be a self-employed person; the two freedoms
(workers and establishment in the meaning of a self-employed person) cannot be applicable at the
same time (paragraph 20 of the Gebhard-case). The definition of worker thereby negatively
determines the personal scope of the freedom of establishment.
how does one distinguish whether the freedom of establishment, the free movement of goods or
the free movement of services is applicable?
This question was answered in the Gebhard-case. The
court decided that the free movement of establishment is applicable if the activity is on
a stable and continuous basis. If the activity takes place on a temporary basis, it will fall under the free
movement of services.
The freedom of establishment therefore presupposes a certain degree of permanent
participation in the economy of the host Member State.
How do MS have to act towards diplomas that are gained in another MS?
The CJEU stressed the importance of the principle of mutual recognition in relation to diplomas and
qualifications of lawyers.
If the outcome reveals that the education corresponds to the education of the other
country, the Member State is obliged to recognize the diploma of the other Member State. If it does
not correspond to its own educational level, the Member State must comply according to several
conditions:
1. The Member State provides the applicant the opportunity to demonstrate that he or she,
nevertheless, has acquired the lacking knowledge and qualifications.
2. If the preparatory professional training is lacking, Member States have to assess whether
the acquired practical training in either the Home or Host State satisfies the national
requirements.
3. The whole test must be carried out in compliance with the ‘effective protection of
fundamental rights of the Union subjects
How can a breach of art. 49 TFEU be justified?
Expres justification: art. 52 TFEU + proportionality test
Implied justification: for non-discriminatory and indirect discrimination + proportionality test
How can a breach of art. 49 TFEU be excepted?
Art. 51 TFEU:
There is also a public service exception for restrictions to the freedom of establishment; this is applied
similarly to what we have seen with article 45(4) TFEU. The Court elaborated on what is to be
understood by public service in the Commission vs. Belgium-case
