Free Movement of Services

Question 1

Jany and Others v Staatssecretaris van Justitie, C-268/99 [2001] ECR I-08615,

freedom to provide services

Answer 1

Held : The Court considered them to be self-employed and capable of falling under the
expression of freedom of establishment in Art. 49 TFEU.
‘ [Article 57 applies] to any activity by which the provider satisfies a request by the beneficiary in return for consideration without producing or transferring material goods.’

= two Polish women go to the Netherlands to work as prostitutes and claim that the Netherlands has infringed the freedom to provide serviced.

Question 2

Case C-157/99 Smits and Peerbooms [2001] ECR I-5473

freedom to provide services

Answer 2

Held: The Court of Justice held that member states could organise their social security systems, if it was compatible with EU law rules. Article 57 did not require services to be paid for by those who received it, for it to fall within article 56 - and thus a restriction required justification. However the restrictions in these cases could be justified in the interests of maintaining social security’s financial balance, or essential health reasons under TFEU article 52.

she claimed that the refusalk to pay for her medical service in Germany contravened EU law.

Question 3

Deliège, C-51/96 &C-191/97

freedom to provide services

note the broad approach to the cross border element by the courts

Answer 3

The ECJ:

• free movement of persons and services not only apply to the action of public authorities but extends also to rules of any other nature aimed at regulating gainful employment and the provision of services in a collective manner.
• sporting activities and, in particular, a high-ranking athlete’s participation in an international competition are capable of involving the provision of a number of separate, but closely related, services which may fall within the scope of [Article 56 TFEU] even if some of those services are not paid for by those for whom they are performed.
• For example, an organiser of such a competition may offer athletes an opportunity of engaging in their sporting activity in competition with others and, at the same time, the athletes, by participating in the competition, enable the organiser to put on a sports event which the public may attend, which television broadcasters may retransmit and which may be of interest to advertisers and sponsors. Moreover, the athletes provide their sponsors with publicity the basis for which is the sporting activity itself.

= rules of sporting associations determining eligibility for sports competition. Not selected to be part of a judo competition. She argued that the rule of the association is against the freedom to provide services. Counter argument: this is a private and amateur association.

Question 4

C-275/92 Customs & Excise v Schindler

Freedom to provide services - lotteries

Answer 4

Held: The national legislation prohibiting the holding of lotteries was contrary to Art. 56 TFEU
* Ads and app forms are not an end in itself but a means to participate in a lottery

• Lottery operator provides a service with a view to make a profit
• The service in question is provided for remuneration (chance / entertainment do not exclude the economic nature of the activity)
• It is legal in most MS (albeit highly regulated) and it is not for the Court to replace the legislatures’ view on moral grounds. However, having regard to the moral, religious or cultural aspects of lotteries, the restriction could be justified on the ground of preventing the lottery from becoming a source of private profit. As such, it was within the power of the Member States to maintain order in society, as regards the manner in which lotteries are operated, the size of the stakes, and the allocation of the profits they yield.

The applicants were independent agents of a public body responsible for organising class lotteries on behalf of four Laender in Germany. They routinely promoted the lotteries and sold them also. On one occasion they sent advertisements from the Netherlands to UK nationals,
inviting them to participate in the German lottery. They were prosecuted for breaching UK legislation banning such promotional activities. The question was whether this activity
constituted a provision of services, and therefore protected under EU law.

Question 5

C-159/90 Society for the Protection of Unborn Children Ireland Ltd v Grogan [1991] ECR I-4685

freedom to provide services - definition of service - economic element

Answer 5

**The ECJ **held that abortion is a medical service (some states recognise it as lawful) but here there is no economic element. The Student’s union is not actually advertising therefore this is not part of the freedom to provide services

= the court side-stepped a sensitive issue. Would the decision be the same now? Is the lack of remuneration sufficient to avoid the use of article 56 TFEU + Would it have been better to say that it is within the scope of the article but allow a MS justification.

= the student association issues leaflets to freshers containing information about the provision of abortion services. Teh SPUCI thinks this is an invitation to Breach the Constitution. The student’s union claimed that it was a restriction of the freedom to provide services.

Question 6

Case C-137/09, Josemans v Maastricht (2010)

freedom to provide services

Answer 6

The ECJ
Legislation restricting free movement of services was justified by the need to combat drug tourism.
As narcotic drugs which are not distributed through such strictly controlled channels are prohibited from being released into the economic and commercial channels of the European Union, a coffee shop proprietor cannot rely on the freedoms of movement or the principle of non-discrimination, in so far as concerns the marketing of cannabis, to object to municipal rules such as those at issue in the main proceedings.

= heavily criticised for its inconsitency

withdrawal of licence from ‘Easy Going Café’ because it offered cannabis to non-residents. Municipal legislation in Maastricht limited access to marijuana cafes to residents only. Josemans, who ran the coffee shop selling marijuana, claimed that this prohibition contravened the freedom to provide services under TFEU article 56, and that it would have to be justified.

Question 7

definition of restriction

freedom to provide services

Answer 7

Article 56 TFEU requires the elimination of any restriction of the freedom to provide services, even if it applies to national providers of services and to those of other Member States alike, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services’ ( the formula is provided in Viacom, C-134/03, (2005), para 35)

Question 8

C-159/90 Society for the Protection of Unborn Children Ireland Ltd v Grogan [1991] ECR I-4685

freedom to provide services - economic aim

Answer 8

= the court side-stepped a sensitive issue. Would the decision be the same now? Is the lack of remuneration sufficie,t to avoid the use of article 56 TFEU + Would it have been better to say that it is within the scope of the article but allow a MS justification.

= the student association issues leaflets to freshers containing information about the provision of abortion services. Teh SPUCI thinks this is an invitation to Breach the Constitution. The student’s union claimed that it was a restriction of the freedom to provide services. The ECJ held that abortion is a medical service (some states recognise it as lawful) but here there is no economic element. The Student’s union is not actually advertising therefore this is not part of the freedom to provide services

Question 9

C-33/7- Van Binsbergen

freedom to provide services

indirect discrimination ( this can be4+ this case also established that art 56 has vertical direct effect

Answer 9

“The restrictions to be abolished include all requirements imposed on the person providing the service by reason in particular of his nationality or of the fact that he does not habitually reside in the state where the service is provided, or which may prevent or otherwise obstruct the activities of the person providing the service.”

The Court of Justice held that requirements imposed on persons providing services—particularly rules relating to organisation, qualifications, professional ethics, supervision, and liability—are compatible with EU law provided they are equally applicable to host state nationals, objectively justified in the public interest, and proportionate.

Dutch lawyer who moved house in Belgium. However, under the Dutch rule, lawyers must be residents of the Dutch territory. Simply requiring residence, no link to any specific public interest ground.

Question 10

Alpine Investments C-384/93 [1995] All ER (EC) 543

freedom to provide services - indistinctly applicable measure

thisis an example where the service moves ( nit the provider or the recipient)

Answer 10

Any measure that was ‘liable to affect market access’ for service providers or recipients was caught by Article 56 TFEUThe ECJ”
“Any restriction, even if it applies to national providers of services and to those of other Member States alike, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State.”

But it was justified for the public interest and proportionate

= however, the court did not use the Keck reasoning.

Commodities broker based in the Netherlands. Engaged in cold calling in other MS and invited them to invest in the commodities market. Under the Dutch rule, that is forbidden. AI claimed that it deprived them of the possi billity to provide servicfes

Question 11

Viacom

freedom to provide services - taxes

Answer 11

held: this was not a restrictio
38 … ‘such a tax is applied only to outdoor advertising activities involving the use of public space administered by the municipal authorities and its amount is fixed at a level which may be considered modest in relation to the value of the services provided which are subject to it. In those circumstances, the levying of such a tax is not on any view liable to prohibit, impede or otherwise make less attractive the provision of advertising services to be carried out in the territory of the municipalities concerned, including the case in which the provision of services is of a cross-border nature on account of the place of establishment of either the provider or the recipient of the services’

A French real estate company engaged Viacom, an advertising company to advertise its services through billboards and posters in Italy; the municipality of Genoa imposed a municipal advertising tax. They claim that it is a restriction of freedom to provide services.

Question 12

C-372/04 Yvonne Watts v Bedford Primary Care:
NHS Authorisation System: Health Care.

freedom to provide services - justification - proportionality

Answer 12

In the case the ECJ applies a high standard of proportionality but also accepts that balancing social security budget is a compulsory requirement in the interest of public policy:

• Normality
• Necessity

hip replacement operation so has the operation in France. The NHS refuses to reimburse her as she has done it without any authorisation.

Question 13

case C-36/02 Omega Spielhallen [2004]

freedom to provide services - justifications- soft proportionality

Answer 13

*Public policy exception.

*Variation between Member States is possible – margin of discretion

*Here: fundamental right =>Protection human dignity compatible with EU law

*Proportionality permits different approaches: MS have a margin in deciding whether ‘public policy’ is a concern for them, and any matter that relates to fundamental rights is very likely to fall within that margin. The CJEU went on to consider if the prohibition on ‘playing at killing’ was proportionate, and here again stressed that it was irrelevant that other Member States may be more tolerant of laser-tag games: it was for Germany to determine if it wished to ban ‘playing at killing’ outrigh

Germany prohibits Laserdrome because it simulates homicide. The refusal to licence Laserdrome in Germany is considered to be a restriction of freedom to provide services.

Question 14

Case C‑42/07 Bwin International Ltd - Gambling Monopoly

freedom to provide services -

cf . Case C-60/00 Carpenter [2002] ECR I-6279
Art. 56 TFEU, read in the light of the fundamental right to respect for family life, had
to be interpreted as precluding a refusal, by the Member State of origin of a provider of
services established in that Member State who provided services to recipients established in
other Member States, of the right to reside in its territory to that provider’s spouse, who was a
national of a third country.
In particular, the decision to deport was an interference with Mr Carpenter’s right to respect
for family within the meaning of Art. 8 of the European Convention on the Protection of
Human Rights, a right protected in EU law too. Moreover, the infringement was
disproportionate as it did not strike a fair balance between the applicant’s competing interests: the right to respect for family life, on the one hand, and the maintenance of public order and
safety on the other.

Answer 14

*Restriction of Art. 56 TFEU but….

*Member States are free to set the objectives of their policy on betting and gambling and, where appropriate, to define in detail the level of protection sought.
*A Member State is therefore entitled to take the view that the mere fact that an operator lawfully offers services in that sector via the internet in another Member State [..] cannot be regarded as amounting to a sufficient assurance that national consumers will be protected against the risks of fraud and crime, in the light of the difficulties liable to be encountered in such a context by the authorities of the Member State of establishment in assessing the professional qualities and integrity of operators.

*Restrictions on free movement of services must comply with fundamental rights: Carpenter = any restriction to be proportionate must also comply with fundamental rights

Question 15

Case 205/84 Commission v Germany

freedom to provide services

Answer 15

Are the measures justified? four - stage test
1)Is there an imperative reason in the public interest?
2)Does the measure apply to all persons and undertakings operating in the territory of the State where the service is provided?
3)Is the public interest already protected by the State where the service provider is established?

4)Necessity

Is the authorisation requirement necessary? Yes, provided :

*It is granted on request to any undertaking established in another MS which meets the conditions laid down by the legislation of the state in which the service is provided,

*Those conditions may not duplicate equivalent statutory conditions which have already been satisfied in the state in which the undertaking is established

*Supervision and verifications which have already been carried out in the member state of establishment must be taken into account

Is the establishment requirement necessary? No

*Very negation of FPS. It is not an indispensable condition for attaining the objective pursued. Assets representing the technical reserves are localised in the State where the service is provided and may be verified in situ. The supervision of other aspects of the conduct of business may be effected on the copies of balance of sheets, accounts and commercial documents sent from the State of establishment and certified by its supervisory authorities

Contested Measures (Insurance supervision law):

*Insurance undertakings who wish to provide services in Germany must be established and authorised in Germany

Question 16

Directive 2006/123/EC (The service directive)

freedom to provide services

in art. 16 you can find a list of applicable jstifications for restrictions

Answer 16

*The Directive applies to ‘services supplied by providers established in a Member State’.

*‘service’ is defined in Article 4(1) as ‘any self-employed economic activity, normally provided for remuneration’; it has the same meaning as under Article 57 TFEU.

*The ‘Handbook on the implementation of the Services Directive’ (2022) provides a comprehensive summary drawn from CJEU case law.

The conclusion of the Directive was an achievement, but it contains extensive exceptions and exclusions, and its effects are less clear

Article 1(2)–(7) contain exceptions

The Directive ‘does not affect labour law, that is any legal or contractual provision concerning employment conditions, working conditions, including health and safety at work and the relationship between employers and workers, which Member States apply in accordance with national law which respects Community law.’ Article 1(6)

Excluded, among others (Article 2(2)): non-economic services of general interest; financial services, taxation field; healthcare services

Question 17

2/74 Reyners v Belgium [1974] ECR 631

freedom of establishment

Answer 17

=> the ECJ establishes that art 49 TFEU on the right of establishment is directly effective

= Dutch national refused admission to the Belgian Bar on the ground that he did not possess Belgian nationality. Belgium argues that we have to wait for the EU to implement directives (under article 50-53 TFEU) but there’s a minimum in art. 49 TFEU (ECJ argues)

Question 18

107/83 Ordre des Avocats du Barreau de Paris v Klopp

freedom of establishment

Answer 18

ECJ: Even in the absence of any harmonisation directive, the right of establishment prevents the host state from denying to nationals of other Member States the right to exercise the legal profession solely on the ground that they maintain chambers simultaneously in another Member State

= German national wants to practice in France (and have two offices one in Germany + one in France)

= France argues that there needs to be a directive

Question 19

C-340/89 Vlassopoulou ECLI:EU:C:1991:193

freedom of estblishment

Answer 19

*ECJ = establishes a principle of mutual recognition of qualification = The host MS must take into account diplomas, certificates and other evidence of professional qualifications acquired in the home State to determine whether they are equivalent

= If they are not equivalent then the MS can require the person concerned to show that they have in some way acquired the lacking qualification. The competent national authorities must assess whether the knowledge acquired in the host Member State, either during a course of study or by way of practical experience, is sufficient in order to prove possession of the knowledge which is lacking.

NB: Directive 2005/36 on the recognition of professional qualifications

*Greek lawyer with German doctorate practising on Greek law and EU law was refused permission to practice as a German lawyer

Question 20

Stauffer C-386/04

freedom of establishment genuine economi activity - companies

Answer 20

ECJ: holding immovable property indicates permanent presence but since it was not actively managed, genuine economic activity was lacking => Free movement of CAPITAL applied instead

=> in most cases all freedoms give equivalent rights

=> except that free movement of capitals is not limited to EU nationals

real estate corporation: did the rules o freedom of establishment or free movement of capital apply

Question 21

C-55/94 Gebhard [1995] ECR I-4165

freedom of establishment - companies - genuine economic activity-

example of indistinctly applicable measure

Answer 21

Held :
Firstly, the applicant was considered to be established under Art. 49 TFEU. While
membership of a professional body could be a condition of taking up and pursuing particular
activities, it was not constitutive of establishment. On the facts, the applicant was established as he was pursuing a stable professional activity.

Secondly, the Court held that, national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must
* be applied in a non-discriminatory manner;
* be justified by imperative requirements in the general interest;
* be suitable for securing the attainment of the objective which they pursue
* not go beyond what is necessary in order to attain it.
*
On the facts, the measure was disproportionate – not only did it gnore the applicant’s knowledge obtained in another Member State, but it also ignored the fact that he did not practice Italian Law.

‘stable and continuous basis’

Gebhard was a German lawyer who was practising in Milan under the title of avocato.
He was suspended from practising by the Milan Bar Council as he did not have have the right qualifications required under Italian law. Gebhard challenged the compatibility of the legislation with Community law

Question 22

Case 270/83 Commission v France [1986] ECR 273

Freedom of establishment - Direct Discrimination

see also Factortame

Answer 22

The ECJ: If the tax rules of a member state place insurance companies whose registered office is on the national territory and branches and agencies situated on its territory of companies whose registered office is abroad on the same footing for the purposes of taxing their profits , those rules cannot , without giving rise to discrimination , treat them differently in regard to the grant of an advantage related to taxation , such as shareholders ‘ tax credits . by treating the two forms of establishment in the same way for the purposes of taxing their profits , the legislature of that member state has in fact admitted that there is no objective difference between their positions in regard to the detailed rules and conditions relating to that taxation which could justify different treatment.

Question 23

Case C-442/02 Caixa Bank France v Minister for the Economy, (2004)

freedom of establishment - indirect discrimination

Answer 23

The ECJ = rejects this argument (you can do that by having two types of current accounts –one with interest and charges – the other without)

= Article 49 goes beyond discrimination: All measures which prohibit, impede or render less attractive the exercise of that freedom must be regarded as such restrictions and need justification

= French Law prohibits banks from paying any interests in current accounts for social reasons (avoid the imposition of banking charges upon customers)

= Caixa (Spanish bank) have a subsidiary in France => challenge this prohibition under the freedom of establishment (nb: this is an indistinctly applicable measure)

Question 24

Case C-251/98 Baars [2000] ECR I-2787

freedom of establishement - acquisition of share holdings

Answer 24

The ECJ: It is clear from the second paragraph of Article 52 of the Treaty that freedom of establishment includes the right to set up and manage undertakings, in particular companies or firms, in a Member State by a national of another Member State. So, a national of a Member State who has a holding in the capital of a company established in another Member State which gives him definite influence over the company’s decisions and allows him to determine its activities is exercising his right of establishment.
***

Portfolio investment and direct investment, i.e. one giving to the acquirer the opportunity for effective participation in the management of a company, are covered by the free movement of capital. The acquisition of a shareholding which gives its holder definite influence over the company’s decisions and allows that holder to determine the company’s activities is governed by the provisions on the freedom of establishment

Mr Baars is resident in the Netherlands. He owns all the shares in Ballyard Foods Limited (hereinafter Ballyard), a limited company incorporated under Irish law established in Dublin, Ireland.

It is apparent from the order for reference that those shares represent a substantial holding in a company in terms of Netherlands law. For the purposes of the 1994 wealth tax assessment, Mr Baars declared assets amounting, at 1 January 1994, to NLG 2 650 600, which included the value of his shares in Ballyard, which on that date amounted to NLG 749 800.

Arguing that his shares in Ballyard represented a substantial holding in terms of Netherlands law, Mr Baars claimed the undertaking exemption provided for in Article 7(3) of the Wealth Tax Law, as amended, in the form of an allowance of NLG 442 400 against his taxable assets.

The tax Officee refused to allow the exemption on the ground that Ballyard did not satisfy the requirement that it be established in the Netherlands, as provided in Article 7(3)(c) of the Wealth Tax Law, as amended.

Question 25

Case C-438/05 International Transport Workers’ Federation v Viking Line (2007)

freedom of establishment - FHR

Answer 25

ECJ: contends that a Trade Union is not entirely a private actor.

*Balance must be struck collective action justified in so far as ‘jobs or conditions of employment are jeopardised or under serious threat’

= strong criticism of the case

Swedish company relocates from Sweden to Estonia. The Trade Union decided to boycott. Trade union collective action not outside scope of Treaty provisions on establishment => Right to take collective action is fundamental right (see also Charter), but can be limited.

Can the treaty provision capture private behaviors ?

Question 26

Case C-341/05 Laval un Partneri Ltd, judgment of 18 December 2007

freedom of establishement - FHR

Answer 26

= Laval’s right to free movement of services under Article 56 TFEU had been breached and the workers’ right to collective action did not justify the breach

The ECJ held that, following ITWF v Viking Lines ABP (The Rosella), the “right to take collective action for the protection of the workers of the host state against possible social dumping may constitute an overriding reason of public interest” which could justify an infringement of free movement of services. However, in this case, it did not, because the systems for Sweden’s collective bargaining was felt to be not “sufficiently precise and accessible” for the company to know its obligations in advance.

Laval hired Latvian construction workers to carry out a government contract in Sweden
Laval refused to sign a collective agreement with Swedish unions guaranteeing a certain level of pay for workers, as a result, the unions blockaded the work site
Laval argued that its right to free movement of services under Article 56 TFEU had been breached

Question 27

Cilevičs, C-391/20

freedom of establishment - natioanl identity

Answer 27

The ECJ: allows some exceptions: courses carried out in corporation with foreign unis. Regulates the flow of judicial power (from the ECJ) => the ECJ recognises the need to protect national identity. The court gives guidelines but leaves a broad margin of discretion to the MS to determine the proportionality
Article 49 TFEU does not preclude legislation which obliges higher education institutions to provide teaching solely in the official language of that Member State, in so far as such legislation is justified on grounds related to the protection of its national identity, that is to say, that it is necessary and proportionate to the protection of the legitimate aim pursued.

Facts: Lativian Law requires teaching in higher education to take place in the national language

Question 28

. Case C-42/92 Thijssen [1993] ECR I-4047 §8

freedom of establishment - official authority (art. 51 TFEU)

Answer 28

= the derogation provided for in Article 51 must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority

Belgium imposed a nationality condition for access to the profession of notary,

Question 29

Case C-208/00 Überseering BV

freedom of establishment - incorporation theory/real seat theory

Answer 29

Held: Germany was not entitled to refuse to recognise its legal personality under Dutch law

=> Where a company which was validly incorporated in Member State A, in which it
had its registered office, was deemed, under the law of a Member State B, to have moved
its actual centre of administration to Member State B following the transfer of all its
shares to nationals of that State residing there, the rules which Member State B applied to
that company fell within the scope of the Community provisions on freedom of
establishment.

*Company incorporated under the law of the Netherlands moved its actual centre of administration in Germany;

Ü, a company incorporated in the Netherlands and with its registered office there, acquired land in Germany. It engaged NCC, a German company, to refurbish a garage and a motel on the site. The contractual obligations were performed but Ü claimed that the paint work was defective. Meanwhile, two German nationals residing in Düsseldorf acquired all the shares in Ü. Ü brought an action for compensation before the RegionalCourt, Düsseldorf, which dismissed it as inadmissible. The Higher Regional Court dismissed the appeal on the basis that Ü lacked legal capacity to be a party to
proceedings. Ü had transferred its actual centre of administration to Düsseldorf once its shares had been acquired by two German nationals. Under German conflict of law rules, a company’s legal capacity *2 was determined by reference to the law applicable in the place where its actual centre of administration was established. Since Ü’s legal capacity was determined by reference to German law following the transfer of the shares, it could not enjoy rights or be the subject of obligations or be a party to legal proceedings unless it had been reincorporated in Germany in such a way as to acquire legal capacity under German law.

Question 30

*Case C-212/97 Centros [1999] ECR I-1459

freedom of establishment - incorporation vs real seat theory

Answer 30

The European Court of Justice held that the Danish authorities’ refusal to recognise the company was contrary to articles 52, 56 and 58, and that its rules on minimum capital were not justified by the aim of protecting creditors by anticipating the risks of fraudulent bankruptcy due to the insolvency of companies having inadequate initial capitalisation. The national authorities could adopt less restrictive measures, such as enabling creditors to obtain necessary guarantees, or could adopt measures preventing or penalising fraud, if necessary with the cooperation of another Member State.

Centros Ltd, a wine import and export business, was registered in the United Kingdom and applied in Denmark, where it traded, to register there. The Danish authority, Erhvervs- og Selskabsstyrelsen, refused on the basis that the company was attempting to circumvent the Danish requirement for companies to pay up a minimum of share capital. In Denmark this was 200,000 Danish kroner, while in the UK the minimum capital requirement was £1. The Danish registry justified its enforcement of the rule as a way to protect creditors and prevent fraudulent insolvency. Centros Ltd argued that it had the right to be recognised in Denmark under the provisions of freedom of establishment in the EC Treaty, articles 52, 56 and 58. The Danish court referred the matter to the European Court of Justice (ECJ).

Question 31

Case C-446/03 Marks & Spencer v David Halsey (Her Majesty’s Inspector of Taxes) [2005] ECR I-10837

freedom of establishment - wholly internal situation

Answer 31

= ECJ: M&S wins the case

=> tax provisions are also caught by the freedom of establishment

Question 32

*Polbud C-106/16, ECLI:EU:C:2017:804

freedom of establishment

Answer 32

1.
Articles 49 and 54 TFEU must be interpreted as meaning that freedom of establishment is applicable to the transfer of the registered office of a company formed in accordance with the law of one Member State to the territory of another Member State, for the purposes of its conversion, in accordance with the conditions imposed by the legislation of the other Member State, into a company incorporated under the law of the latter Member State, when there is no change in the location of the real head office of that company.

2.
Articles 49 and 54 TFEU must be interpreted as precluding legislation of a Member State which provides that the transfer of the registered office of a company incorporated under the law of one Member State to the territory of another Member State, for the purposes of its conversion into a company incorporated under the law of the latter Member State, in accordance with the conditions imposed by the legislation of that Member State, is subject to the liquidation of the first company.

The request has been made in the context of an action brought by Polbud — Wykonawstwo sp. z o.o. (‘Polbud’) against the decision to refuse its request that it be removed from the Polish commercial register, made following the transfer of its registered office to Luxembourg.

Question 33

C-338/04, C-359/04 and C-360/04Placanica[2007] ECR I-1891

gambling

see also Case C-42/07-CA/LPFP (BWIN)[2009] ECR I-07633
The[Liga Portuguesa de Futebol Profissional] the Portugal football league) and Bwin Ltd (an online gambling compan) claimed that fines from the Departamento de Jogos were contrary to theTFEUarticle 56 (ex article 49[TEC]) on freedom to provide services, as well as freedom of establishment and free movement of payments. The Departamento de Jogos monopolised gambling in Portugal, and it argued this was justified under TFEU article 52 (referred to by art 62). A law prohibited games of chance via the internet

Held : ban was justified because gambling poses a particular issue of fraud.

Answer 33

= constitutes a restriction on the freedom of establishment and the freedom to provide services
= licencing system is acceptable but it is suject to the requirement of proportionality. ( licence conditions muts not discriminate againt non-national operators)
= limit on the number of licences available is not acceptable unless a member state is actively working to bring about a genuine diminution in gambling opportunities; and

• criminal penalty on persons for having carried on the organised activity of collecting bets in the absence of a licence or police authorisation are not valid where those persons were unable to obtain those licences or authorisations because that Member State, in breach of Community law in breach of Community law, to grant them

Italian legislation provides, in essence, that participation in the organisation of games of chance, including the collection of bets, is subject to obtaining a licence; including the collection of bets, is subject to obtaining a licence and a police and a police authorisation. Any infringement of this legislation is punishable by up to three years’ imprisonment.
three years’ imprisonment.

The Atri Police, which accused Mr Palazzese and Mr Sorricchio of having carried on an organised activity with a view to facilitating the collection of bets without a licence or police authorisation, proceeded to sequestrate their premises and equipment on the basis of Article 4(4a).

Question 34

Case C-400/08 European Commission v Kingdom of Spain.ECLI:EU:C:2011:172

freedom of establishement

any measure making the establishment more difficult is prohibited

Answer 34

= Spain had failed to fulfil its obligations under Article 43 of the Treaty on European Community (EC)
(now Article 49 of the Treaty on the Functioning of the European Union (TFEU)) by imposing restrictions on the establishment of large retail establishments in Catalonia

Spain has put into place a licensing system (including conditions
thereto) that operators of large retail storesmust undergo in order to obtain a retail licence that
allows them to open their retail establishments in Catalonia and were envisaged
by both national (The Retail Trade Act 7/1996 of 15 December) and Catalan law
Measures
- prohibit the setting up of large retail establishments outside the consolidated urban areas of a limited number of municipalities;
- restrict the setting up of new hypermarkets to a limited number of districts and require such new hypermarkets not to account for more than 9% of estimated expenses for staple supplies for that district in 2009 and 7% of estimated expenses for non-staple supplies;
- require the application of ceilings as regards the market share and the impact on existing retail trade, above which it is impossible to open large retail establishments and/or medium-sized retail establishments, and
- govern the composition of the Retail Facilities Committee, consultation of which is obligatory in order to obtain a specific licence to open a large retail establishment