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EU Law > Free Movement of Services > Flashcards

Free Movement of Services Flashcards

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1
Q

Provision prohibiting restrictions on services

A

Art 56 TFEU

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2
Q

The Services Directive

A

Directive 2006/123/EC

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3
Q

Problem Q stages (5)

A
  1. Is it a service?
  2. What is it governed by? (directive, specific leg, case law and art 56 directly)
  3. Is it restricted
  4. Is the restriction justified?
  5. Is the restriction proportionate?
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4
Q

Schindler (What is a service?)

A

What is a service: Distinction from goods

Buying a lottery ticket was provision of a service as the ticket itself was ancillary to the substance of the transaction

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5
Q

Schnitzer

A

What is a service: distinction from establishment

Factors considered in evaluating permanence of an establishment:

  1. duration of provision of service
  2. regularity
  3. periodical nature or continuity?
  4. Infrastructure

(Provider may remain temporary while having some infrastructure in another MS if it is necessary for the purpose of performing the services in question)

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6
Q

Van Binsbergen

A

What is a service: Must have a cross border element

Service provider may travel to another state:
Dutch lawyer traveled to Netherlands to represent clients

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7
Q

Luisi and Carbone (What is a service)

A

What is a service: Must have a cross border element

Recipient can travel to another state to receive a service:
Laws obstructing citizens travelling to another MS to receive medical services fel within art 56

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8
Q

Commission v Italy (Tour Guides)

A

What is a service: Must have a cross border element

The recipient and the provider can both travel and meet in a third member state

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9
Q

Sketteministeriet v Verstergard

A

What is a service: Must have a cross border element

The service itself can move:
Danish company organised training courses for Dutch workers on Greek islands.
Held Art 56 could apply, it is sufficient for services to be provided to the nationals of an MS on the territory of another MS irrespective of the place of establishment of the provider or the recipient of the service

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10
Q

ITC

A

What is a service: Must have a cross border element

The service itself can move:
A Domestic contract can fall within Art 56 if an important part of the work for which the provider is paid takes place abroad

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11
Q

Provision stating services must be normally provided for remuneration

A

Art 57 TFEU

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12
Q

Chalmers (textbook)

A

What is a service: Normally provided for remuneration

Meaning of ‘normally’ has not yet been discussed by the court but is probably intended to make way for the occasional services provided for free e.g for marketing purposes

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13
Q

Humbel

A

What is a service: Normally provided for remuneration

Not every payment is remuneration:
Essential characteristic is that remuneration provides consideration
Can be contrasted with payments that are intended to fund/support the provider with a non-commercial motive e.g university education

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14
Q

Tolsma

A

What is a service: Normally provided for remuneration

Money given to buskers could not be seen as remuneration as there was no obligation to pay

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15
Q

Gaerets-Smits (What is a service)

A

What is a service: Normally provided for remuneration

Motivation of the provider is not important:
there is no need for service providers to make a profit

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16
Q

Arblade

A

Restrictions on services: what is a restriction?

non-discriminatory measures may be caught by art 56 if they are ‘liable to prohibit, impede or render less advantageous the activities of a provider or services established in another MS where he lawfully provides similar services’

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17
Q

What is a restriction?

A

Can be direct or indirect
Enough that there is a possibility that a measure could hinder free movement of services
Can be discriminatory or non discriminatory

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18
Q

Mobistar

Viacom Outdoor

A

Restrictions on services: what is a restriction?

Measures of which the only effect was to create additional costs which affect the provision of services between and within MSs equally do not fall within the scope of Art 56
Otherwise almost every tax or regulation would fall within art 56

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19
Q

Commission v Italy (motor insurance)

A

Restrictions on services: what is a restriction?

National rule prohibited motor insurers from rejecting a client, was argued foreign insurance companies would be deterred from offering insurance services in Italy by this obligation as they would incur extra costs in restructuring their business.
It was held that laws which are equally applicable, but in practice require foreign providers to adapt their business models do fall under art 56

20
Q

Walrave and Koch

A

Restrictions on services: Horizontal application of art 56

Art 56 applied to the International Cycling Union as a private body as they are part of the regulation of an area of economic activity

21
Q

Deliege

A

Restrictions on services: Horizontal application of art 56

Sport: Court tries to make a distinction between rules which are an inherent part of the regulation of the sport, and economic aspect of the activity:

Restrictions on participation were inherent to the organisation, do not fall under art 56

22
Q

Meca Medina

A

Restrictions on services: Horizontal application of art 56

Sport: Court tries to make a distinction between rules which are an inherent part of the regulation of the sport, and economic aspect of the activity:

Sport is subject to community law only insofar as it constitutes an economic activity

23
Q

Laval

A

Restrictions on services: Horizontal application of art 56

Labour regulations and activities of trade unions:

Compliance with art 56 required of rules which are not public in nature, but which are designed to regulate the provision of services

24
Q

Viking line

A

Restrictions on services: Horizontal application of art 56

Labour regulations and activities of trade unions:

Held in the context of free movement law that 56 will apply merely because a private party may have the power to obstruct free movement
Seems to reason why this should not apply in the context of services

25
Q

Provision listing statutory justifications on restrictions

A

Art 62 TFEU: Justifications in Art 52 apply (Public health, security, policy)
Applies to discriminatory and non-discriminatory measures

26
Q

Gebhard

A

Justifying restrictions

Aside from under art 63, Restrictions on services may also be permitted if they are:
Non-discriminatory
Justified by an ORPI
Proportionate

27
Q

Alpine investments

A

Justifying restrictions

There is no distinction between restrictions on the import of services and export of services: equally prohibited and equally open to justification

28
Q

Webb

A

Justifying restrictions:

Restrictions will not be justified where the interest concerned is protected by legislation in the state of establishment

Requiring a service provider to undergo police checks similar to ones undergone in home state violated principle of mutual recognition

29
Q

Sager

A

Justifying restrictions:

It is disproportionate to subject service providers to all the rules that would apply to them if they were established
This would deprive the provisions of the treaty whose object it is to guarantee freedom of services of their effectiveness

30
Q

Cipolla

A

Justifying restrictions: Restrictions on marketing prices

rules which limit price competition may restrict trade, however fixed legal fees could be justified as minimum prices prevent excessive competition which could lead to lower standards

Court will take into account individual characteristics of the market when determining proportionality

31
Q

Cornsten

A

Justifying restrictions: Access to regulated industries and professions

Dutch Architect working in Germany fined as he had not entered himself on the German register of skilled traders
In order to do this he had to pay a fee, and it took some time
Proportionality demanded the authorisation procedure should neither delay nor complicate the exercise of the freedom to provide services

32
Q

Polyani (commentator)

A

The market society

Instead of the economy being embedded in social relations, social relations are embedded in the economic system

33
Q

Features of the market society:

A
  1. The contract is central to the social relation
  2. Collective goods become measured as a series of individual entitlements that can be transacted
  3. Value placed on subjective preferences and desires (Justifies art 56, which grants a right for a citizen to transact what she desires)
34
Q

Schindler (The market society)

A

Socially sensitive services:

Justification: it will not take a moral stance on whether socially sensitive services come within art 56- therefore they all do

35
Q

Grogan

A

The Market society: socially sensitive services

Group being prohibited from distributing information about abortions in Ireland
Held that the termination of pregnancy is a medical activity normally provided for remuneration, therefore is a service
No matter how offensive/illegal a service may be in one state, if it is permitted in others then they can rely on Art 56
Courts will, however, heavily weigh in strong national feelings to its decision

36
Q

Commission v Germany

A

Art 56 and the welfare state

Schools which are financed essentially by private funds must be regarded as a service for remuneration under art 56, irrespective of whether they have anything to do with the state itself

37
Q

Relationship between art 56 and the welfare state

A

Have been brought closer together as public institutions are increasingly funded by private insurers or the consumers of their services, therefore bringing their services within the scope of the treaty

38
Q

Luisi and Carbone (The welfare state)

A

Art 56 and the welfare state: The right to go abroad for healthcare

Hospital care is a service

39
Q

Kohll

A

Art 56 and the welfare state: The right to go abroad for healthcare

Insurance polices only paying for health care in the home state are a restriction on freedom to receive services

40
Q

Gaerets-Smits, Muller-Faure, Watts

A

Art 56 and the welfare state: The right to go abroad for healthcare

Confirmed a patient’s right to exit the national system of healthcare and choose treatment abroad

Merely budgetary or economic arguments cannot justify a restriction unless states can show that the national consequences of allowing free movement would be so great that they would threaten the stability and the quality of the system

MSs are free to define the scope of the healthcare for which they will pay, these limits apply equally and home and abroad: Eliminates any problem of elevated cost of treatment abroad

41
Q

Gaerets-Smits (right to go abroad for healthcare)

A

Art 56 and the Welfare state

Dutch healthcare system refused to pay for experimental treatment in Austria as is only payed for treatment it considered ‘normal’
CJEU held definition of ‘normal’ must be derived from inherently international medical science, rather than national ideas of what was normal
Shows how MSs must define the scope of what they will pay for with care

A scheme of prior authorisation before going abroad for treatment is acceptable in an MS:

  1. Must have procedural safeguards
  2. Transparency
  3. Appeal opportunities
42
Q

Muller-Faure (right to go abroad for healthcare)

A

Art 56 and the Welfare state

Increase in the cost of infrastructure resulting from free movement is capable of being restricted:
Hospital care: Great potential costs risks, restrictions on the basis of infrastructure can be justified
Non-hospital care: Infrastructure argument cannot apply

43
Q

Watts

Mulle-Faure

(Right to go abroad for healthcare)

A

Art 56 and the welfare state

Waiting lists can only be justified as a legitimate method of healthcare system management if there is NO UNDUE DELAY

Undue delay should be decided on a case by case basis by looking at the concerns of the individual patient (e.g their broader health, career)

44
Q

3 aspects to the services directive

A
  1. Scope and Application
  2. Administrative and bureaucratic procedures
  3. Coordinationprovisions
45
Q

Scope and application of services directive

A

Applies to all services except those specifically excluded in art 2(2)

Art 3: it is residual

Art 16: Lists conditions for justification of restrictions
(non-discriminatory, necessary for public policy, security, health, protection of the environment, proportionate)
Proportionate
Therefore services governed by the directive CANNOT BE JUSTIFIED BY ORPIs

46
Q

Services directive: relevant articles for administrative and bureaucratic procedures

A

Art 5(1)
Art 6
Art 7
Art 8

47
Q

Services directive: relevant articles for coordination procedures

A

Art 22
Art 24
Arts 28-33 (administrative cooperation between national supervisory authorities)
Arts 18 and 35: Special emergency procedure for when a supervisory challenge is raised by cross-border services

EU Law (11 decks)

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