Freedom of Establishment

Question 1

Who has the right to freedom of establishment?

Answer 1

Individuals (self-employed) and companies (Art 54)

Question 2

How is establishment different from services? Which case tries to define this difference?

Answer 2

Establishment is concerned with installing oneself in a foreign MS. Services are about temporary provisions. In Gebhard, the court said establishment encompassed not only duration but also regularity, periodicity, or continuity.

Question 3

Which case gave direct effect to FOE?

Answer 3

Reyners

Question 4

What are the facts of Reyners?

Answer 4

A Dutch graduate in law was not allowed on to the Belgian Bar despite having trained and obtained his qualifications in Belgium, because he was Dutch. This was ruled as discriminatory and in breach of Art 49 and 18 TFEU.

Question 5

The horizontal direct effect of Art 49 is uncertain. Which two cases show this?

Answer 5

1. Wouters

2. ITWF and Finnish Seaman’s Union v Viking Line

Question 6

If there is no unifying EU legislation MS are allowed to govern access to professions etc, but what supranational principles should they still observe?

Answer 6

1. They shouldn’t discriminate, directly or indirectly, and

2. They should recognise the principle of ‘mutual recognition of equivalence’

Question 7

How would you describe the ‘mutual recognition of equivalence’ and which case does it come from?

Answer 7

The principle allows people who have the necessary qualifications and attained a good enough standard for a profession in a particular MS to take up that profession even though they might have got their qualifications in another MS. This was found in the case of Thieffry.

Question 8

What happened in Thieffry?

Answer 8

A Belgian national with a Belgian doctorate in law was refused access to the Parisian bar, despite having qualifications of the required standard. The CJ said Thieffry should be allowed access.

Question 9

In UNECTEF v Heylens, a Belgian football coach was prosecuted for working in France. What did the CJ establish in this case?

Answer 9

The CJ said where a MS refused to recognise a person’s qualification that person is entitled to legal redress.

Question 10

Where there is unifying legislation which case says that Member States must ignore their own national legislation?

Answer 10

Broekmuellen

Question 11

Where there is no directive which case says that Member States should take into account a person’s qualifications and experience and other relevant case law?

Answer 11

Vlassopoulou

Question 12

Which directive now embodies the mutual recognition principle?

Answer 12

D 2005/36

Question 13

FOE developed due to cases brought by lawyers. Which three directives can a lawyer now bring a claim?

Answer 13

D 77/249 - Lawyers Services Directive
D 98/5 - Lawyers Establishment Directive
D 2005/36 SLIM (Simplification) Directive

Question 14

Who is granted FOE under Art 54?

Answer 14

Companies whose registered office, administrative office or principal place of business are in EU. ‘Companies’ covers all forms of organisation except non-profit making organisations.

Question 15

Which case confirms Article 49 protects against direct discrimination?

Answer 15

Reyners

Question 16

Which case confirms that Article 49 protects against indirect discrimination?

Answer 16

Klopp

Question 17

What happened in Klopp?

Answer 17

A German lawyer was prevented from joining the Parisian bar for having an office in Germany.

Question 18

In which case was partial equivalence recognised?

Answer 18

Bobadilla

Question 19

What does partial equivalence mean?

Answer 19

It means where there is a gap in a person’s qualifications or experience then that person may be rejected, however only on the condition that:

1. there is a public body restriction;
2. there is an objective test which complies with the Vlassopoulou conditions;
3. the applicant has not filled the gap

Question 20

Which case extended the notion of partial equivalence even where there was a harmonising directive thereby ensuring that acquisition of skills must always be taken into account?

Answer 20

Hocsman

Question 21

Why was Mr. Haim refused work as a dentist in the German public health scheme despite having practised dentistry in both Belgium and Germany? In the end did it matter?

Answer 21

He had a non-EU qualification from Turkey. In the end the CJ said his work within the EU was sufficient.

Question 22

Where an EU national obtains a non-EU qualification must it also be recognised in others? Which case gives us the answer?

Answer 22

Tawil-Albertini says there is no requirement for all MS to recognise a non-EU qualification if one does.

Question 23

In Gebhard the CJ developed a Rule of Reason approach to say what would not breach Art 49? What was the four stage test?

Answer 23

The CJ said restrictions may apply for the self-employed to enter certain professions only if:

1. The rules are non-discriminatory;
2. The rules are imperative requirements for the general interest;
3. Appropriate for the objective pursued;
4. Do no go beyond what is necessary.

Question 24

What are the two defences (not including the Rule of Reason) for restrictions against FOE?

Answer 24

1. Art 51 - exercise of official authority

2. Art 52 - public policy, security or health

Question 25

In Caixa Bank France v Ministere de l’Economie, the test for finding an obstacle, developed in Gebhard, was widened. What did they say could be an obstacle?

Answer 25

Anything which could ‘prohibit, impede or render less attractive’ the pursuit of an occupation in another MS.

Question 26

When did the CJ rule that a claim could be successful if taken out against your home state?

Answer 26

In Knoors the CJ made clear that as long as there was a cross-border element you could use Article 49.

Question 27

What happened in Asscher?

Answer 27

A director of companies in both Belgium and Holland claimed against the non-residential tax rate imposed on him by the Dutch. The CJ ruled that a different tax rate between residents and non-residents could be justified on objective criteria, however, in this case it wasn’t.

Question 28

What is the function of Europass?

Answer 28

It provides a way of comparing qualifications across Member States

Question 29

Which case tells us that a qualification in which part of the training is outside the EU will be recognised the same as any other qualification in the EU as long as the MS awarding the qualification recognises it as valid and it meets directive requirements?

Answer 29

Tennah-Durez

Question 30

C v Germany (Re Lawyers Services) concerned the ‘conjunction rule’. What is it?

Answer 30

The conjunction rule is a restriction on representation in court. Some MS say the advocate must be a national. The conjunction rule allows non-nationals to represent as long as there is a local lawyer present.

Question 31

The Lawyers Establishment Directive gives lawyers four key rights. What are they?

Answer 31

1. Right to practise under the home state title;
2. allows them to register in any MS;
3. gives them a right to represent in any MS they are registered in;
4. fast track re-qualificaton

Question 32

What happened in Wilson v Ordre des Avocats du barreau du Luxembourg?

Answer 32

Mr. Wilson was obliged to take a language test but refused and was subsequently delisted. The CJ held a language test was not necessary or proportionate. All that was required was a registration certificate from the home state and effective and regular activity for three years previous.

Question 33

Which UK legislation implemented the Lawyers Establishment Directive?

Answer 33

European Community (Lawyers Practice) Regulations 2000

Question 34

What two methods may a lawyer choose from to requalify into another MS?

Answer 34

1. Aptitude test

2. Three years establishment in that MS

Question 35

Which case tells us that Article 54 only applies to profit making companies?

Answer 35

Steinhauser v City of Biarritz

Question 36

There are two theories for deducing where a company has formed. What are they called?

Answer 36

1. Real seat doctrine

2. Incorporation doctrine

Question 37

What is the incorporation doctrine?

Answer 37

The incorporation doctrine tells us where a company is formed by looking at where it became incorporated or where its registered office is.

Question 38

What is the real seat doctrine?

Answer 38

The real seat doctrine tells us where a company is formed by looking at where its head office is based.

Question 39

What happened in Centros Ltd?

Answer 39

Centros Ltd traded in Denmark but had registered in the UK. The Danish Government argued they did this to evade more stringent incorporation law and subsequently refused to register Centros Ltd. The CJ held the Danish Govt to be in breach of Art 49.

Question 40

Which cases confirm Centros Ltd?

Answer 40

Uberseering v NCC

Inspire Art Ltd

Question 41

What was held not to be a breach of Art 49 in Daily Mail?

Answer 41

The UK Govt refused to allow Daily Mail to setup its headquarters in the Netherlands until it had liquidated some of its assets and settled its capital gains tax. The CJ upheld this as

Question 42

What did the CJ say about corporate tax in Commission v France? What was the breach?

Answer 42

It must not be discriminatory. France taxed companies’ offices in other MS as if they were in France without them receiving the benefits.

Question 43

In M&S v Hasley Ltd what was disproportional?

Answer 43

UK’s rules on deducting losses from subsidiaries against profits in UK.

Question 44

What jobs did not fall under the Article 51 exception of public authority in Commission v Italy and Commission v Greece?

Answer 44

1. IT services for state lottery

2. Road traffic experts

Question 45

How did the CJ define Art 51 in Reyners?

Answer 45

jobs where one had ‘privileges of power and powers of coercion over citizens’

Question 46

Why did the job of Commissioner for insurance companies not fall within the exception of Art 51?

Answer 46

Because while he monitored companies and reported infringements of the penal code, he did not have the authority to prevent companies pursuing certain policies.