Freedom of establishment

Question 1

Where can the main provisions regarding establishment be found?

Answer 1

Art 49-54 TFEU

Question 2

Where can the legal basis for harmonising legislation based of freedom of establishment (specific activities) be found?

Answer 2

• Article 50 TFEU

Question 3

Where can the treaty provision regarding to derogations of the right to establishment be found?

Answer 3

Art 52 TFEU

Question 4

Where can the legal basis for the harmonisation of national laws be found?

Answer 4

Art. 53 TFEU

Question 5

How does one determine whether a case meets the material scope of Art. 49 TFEU?

Answer 5

a) RESTRICTION to the freedom of establishment?
-Def. estbalished in Gebhard

Question 6

Where can one find the harmonisation laws in regards to freedom of establishment?

Answer 6

-Professional Qualifications Directive (2005/36)
- questions would
-Services Directive

Question 7

Explain the general structure of Freedom of Establishment?

Answer 7

1. Applicability of Art. 49 TFEU
   -“Establishment?”
   -harmonisation?
   -cross-border element?
   -personal scope
   2.Restriction
   3.justification
   
   • ground for justification in Art. 52 TFEU
     -Imperative requiremenet?
     -Measure proportionate

Question 8

TRUE or FALSE: a company is treated the same way as a natural person under EU Law when it comes to freedom of establishment

Answer 8

-TRUE
-Art. 54 TFEU

Question 9

Explain what ‘establishment’ is under EU law

Answer 9

1.Gebhard—>
(C.25) “stable and continuous basis”
- things to consider:
-duration
-regularity/ consistency
-infrastructure (e.g: having an office)

2. lack hierarchical relationship

Question 10

TRUE or FALSE: Art 49 has direct horizontal effect

Answer 10

-full horizontal effect unlinkely
-but if you’re an individual, can invoke against private entities exerc.
-“legal autonomy”
-Viking Line

Question 11

True or False: Indirect discrimination is allowed under the freedom of establishment

Answer 11

-FALSE
-even non-discrimiantory messures not allowed
(Vlassopoulou)

Question 12

List examples of cross border situations under Art.49 TFEU

Answer 12

1. Moving to another Member State to take up self-employed ctivity
   -Vlassopoulou
   2.Transferring a company to another MS (Daily Mail)
2. Setting up a secondary establishment in another member state (Centros)

Question 13

List types of restrictions of Art. 49 TFEU

Answer 13

-Non-dscriminatory- Gebhard- can’t call yourself avvocato when not reg. at bar
-Indirect or Direct discrimination under Art. 49
-Indirect–> vlassapoulou

Question 14

How can one determine whether imperative requirements are justified

Answer 14

-Gebhard
(C. 37)
- indistinctly applicable
-Legitimate object. of Pub. In.
- Proportionality
-Suitability
-Necessity

Question 15

Describe what a restriction on freedom of establishment is

Answer 15

-Any natonal measure liable to make less attractive the free. of estabalishment
-includes indi. + dir. discrimination + non-discriminatory
-Defined in gEBHARD