Freedom Of Establishment Flashcards
Art 49
Art 56
49 – freedom of establishment comes under this article– establishment on a stable and continuous basis
56– services of temporary nature
Van Binsbergen and Kloop
Establish that permanent local residence requirements are not necessary for lawyers merely wishing to provide a service- court found breach of art 49 because of requirement to establish permanent residence in Paris and it was no proportionate because too restrictive
Rights : departure, entry , residence
Departure– state should not create obstacles for the establishment of one of its own nationals in another MS
Entry– into another MS is a view of establishment
Residence – under conditions (resources notably)
Primary establishment v secondary establishment
Primary – an individual leaves it’s state of origin to set up permanent establishment in the host state
Secondary – an individual maintains an establishment in the state of the origin while setting up another establishment in another member state (host state)
Equal treatment with nationals
There is the principal of equal treatment regardless of specific EU rules and that the MS is allowed to regulate access to professions provided that it does not cause any direct or indirect discrimination on grounds of nationality (art 49 - unless can be objectively justified by express derogations)
Reyners
Direct discrimination - Belgian legislation prohibiting the practice of a Dutch lawyer - no derogations and not proportionate
Gullung
Indirect discrimination however was objectively justified - French rule requiring all lawyers to register at the bar before practicing in France even though it was an extra burden for those who were not qualified in France but wanted to practice the court said it was justified and permitted before of moral and ethical principles as well it was proportionate
Restriction on free movement (Gebhard)
Was German lawyer working in Italy under title of lawyer but did not obtain the title in Italy so they started proceedings against him
Court decided that national measures must fulfill 4 conditions (access to market conditions)
-non discriminatory application
-suitable to secure the objective sought
-justified by imperative reasoning relating to public interest
-proportional
– don’t forget: matter for national courts to decide!! And possibly a reference to ECJ under art 267
What is a non discriminatory measure?
It is a measure that hinders or makes less attractive the right to freedom of establishment - comes under art 49 - subject to express derogations under art 52
Art 52 express derogations
Public policy
Public health
Public security
Sager case
ECJ further developed the rule that prevents the restriction of services from other MS but may still persist to limit activities of the home providers of services.
Prohibited to impede EU nationals to provide services in other MS which they lawfully do in their home state
