FREEDOM OF ESTABLISHMENT

Question 1

What governs Freedom of Establishment?

Answer 1

Art.49:64 TFEU, but mainly case law and secondary legislation

Question 2

Notion of Establishment

Answer 2

The actual pursuit of an economic activity through a fixed establishment in another MS for and indefinite period

Question 3

Who enjoys Freedom of Establishment?

Answer 3

PRE-REQUISITE: MS Nationals
Self-employed persons and legal persons (companies, firms, profit-making undertakings) who move on a permanent basis from a MS to another MS

Exception: third-countries’ nationals having family relationships in EU

Question 4

3 characters of Freedom of Establishment

Answer 4

1. Presuppose the existence of a CROSS-BORDER ELEMENT (can’t be a wholly internal situation)
2. Implies the carrying out of an economic self-employed activity on a PERMANENT BASIS
3. Includes the rights to:
   a) take up and pursue activities as self-employed persons
   b) manage undertakings

Question 5

What are the basic principles governing the Right of Establishment

Answer 5

Art.49(1) TFEU: MS must remove restrictions and obstacles to the exercise of the right

Art.49(2) TFEU: MS must guarantee the principle of non-discrimination and equal treatment between nationals and EU citizens

Question 6

What is the REVERSE DISCRIMINATION PHENOMENON and what case is important

Answer 6

REVERSE DISCRIMINATION PHENOMENON is when MS Nationals find themselves in disadvantage in comparison with other EU Citizens exercising Freedom of Establishment

KOLLER Case: Austria-Spain Advocate; ECJ Ruled in favour of liberalization of markets and stated that it wasnt a wholly internal situation (there was a cross-border element, thus FoE applies.)

Question 7

Can MS put limitations, regulations and conditions on FoE?

Answer 7

Yes, they do.
Ex. ESAME DA AVVOCATO

Question 8

What articles govern the approximation of national laws through a more unitarian FoE application?

Answer 8

Art.50 TFEU: EU Institutions may regulate FoE as regards a particular activity by means of a directive

Art.53 TFEU pursues coordination and mutual recognition between MS

Question 9

Difference between Primary and Secondary establishment

Answer 9

PRIMARY ESTABLISHMENT: right to setup up and manage undertakings
SECONDARY ESTABLISHMENT: right to set up subsidiaries, branches (Legal persons) or secondary professional bases (Self-employed persons)

Question 10

CARTESIO case (FoE)

Answer 10

From Hungary to Italy, wanted to move central administration but still following Hungarian rules. Hungarian govs said no.

ECJ: FoE can be limited by national provisions permitting it but with conditions