Free movement of services Flashcards
How does one determine whether Art. 56 TFEU is applicable in this case?
a) Is the case about “services”?
b) Is there applicable harmonisation at EU level?
c) No? Is there a cross border element in the case?
d) Can the claimant invoke Art. 56 TFEU against the defendant? (personal scope)
How does one access the material scope of Art. 56 TFEU?
a) Does the measure constitute a restriction to the free movement of services?
How does one assess whether there is a justification for a restriction on the freedom of services?
- Art. 52 TFEU or an “imperative requirement”?
-Is the measure proportionate?
Where can one find the grounds of justifications for restrictions on freedom of services?
-Art. 52 TFEU
Where are services defined?
-Art. 57 TFEU
-anything that’s not an establishment, goods, worker,etc,
-Gebhard:
-“temporary”
How are services defined?
-Generally accepted as:
-Service/performance
-intangible in nature
-exchange for renumeration
Is there harmonised legislation in terms of freedom of services? Name them
-yes (Services Directive)
Name 3 ways in which the cross border element may be fulfilled, and name the corresponding case law.
-Service provider travels to PROVIDE services in another member states
-Sager and Laval
-Person moves to ms to RECEIVE services
-Luisi and Carbone
-SERVICE itself moves
-Alpine Investments
- matchy matchy in exam
How does one determine the personal scope of Art. 56 TFEU?
–> Does it have vertical direct effect?
–> sufficiently precise and unconditional
–> Van Binsbergen
–> Horizontal direct effect?
-> Can ! if they’re exercising legal autonomy and who are regulating in a collective manner in the provision of services (Walrave; Laval)
What constitutes a restriction to free movement?
–> All forms of direct and indirect discrimination
–> Direct discrimination: Vans Binsbergen
–> but had justification
–>Non-discriminatory measures which “directly affect market access”
-e.g: Sager, Alpine Investments and Laval
What are examples of non-disccriminatory restrictions on free= movement?
- Sager
-carried out services in germany
-but registered in UK 2 avoid having to be a Patent Agent
-Apline investment
-Restriction to cold calling, means cannot provide service(unsolicited calls) in other member states
Explain the judgment in Alpine Investments?
–>restrictions on “selling arrangements” are not allowed for movement of services
–> directly affected access to the market in services in other Member states
Explain the judgment in Mobistar
- Generally applicable tax on mobile telephone infrastructure
- applies to all, so no direct or indirect discrimination
-probably limited to non-discriminatory tax measures
Where can one find the derogations for freedom of services?
-Art.52 TFEU
-applicable through Art. 62 TFEU
List possible justifications for treaty derogations of free movement of services
- Those listed in Art. 52 TFEU
-Imperative requirements
+ all subject to proportionality test!
