Freedom of Establishment

Question 1

Jany

Answer 1

An individual is acting in self-employment where they act:

• Outside any relationship of subordination concerning the choice of that activity, working conditions and conditions of remuneration
• Under that person’s own responsibility
• In return for remuneration paid to that person directly and in full

Question 2

Steymann

Answer 2

Activities carried out on a permanent basis or without foreseeable limit to duration fall within Art 49 TFEU.

Question 3

Commission v Germany (Insurance Services)

Answer 3

Activities carried out by an undertaking in a MS on a permanent basis or without foreseeable limit to duration fall within Art 49 TFEU even if that presence consists merely of an office managed by the undertaking’s own staff or by a person who is independent but authorised to act on a permanent basis for the undertaking.

Question 4

Factortame II

Answer 4

Establishment involves ‘the actual pursuit of an economic activity through a fixed establishment in another MS for an indefinite period’.

Question 5

Gebhard

Answer 5

The concept of establishment allows an EU national to ‘participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin and to profit therefrom, so contributing to economic and social interpenetration with the Union, in the sphere of activities of self-employed persons’.

The temporality of the activities should be determined in light of not only the duration of the provision of the service, but also its regularity, periodicity or continuity.

National measures which are liable to hinder or make less attractive the exercise of freedom of establishment constitute a restriction on that freedom.

Imperative Requirements
National measures which are liable to hinder or make less attractive the exercise of the freedom of establishment must satisfy 4 conditions to be justified:
- Must be applied in a non-discriminatory manner
- Must be justified by imperative requirements in the general interest
- Must be suitable for attaining the objective which they pursue
- Must not go beyond what is necessary to attain that objective.

Question 6

Reyners

Answer 6

Direct Effect
Art 49 TFEU can have direct effect following the end of the transition period in 1961.
Official Authority Exemption
Defined official authority as:
‘That which arises from the sovereignty and majesty of the state; for him who exercises it, it implies the power of enjoying the prerogatives outside the general law, privileges of official power and powers of coercion over citizens’.

Question 7

Wouters

Answer 7

Art 49 applies to regulatory organisations and associations not governed by public law.

Question 8

Viking Line

Answer 8

Art 49 can have horizontal direct effect

Question 9

Commission v Greece

Answer 9

Road Traffic experts who appeared as witnesses in Court rooms are excluded from the official authority exemption.

Question 10

Commission v Italy (Data Processing)

Answer 10

Design, programming and operation of data-processing systems for public authorities was held not to fall within the official authority exemption since it was of a technical nature.

Question 11

Thijssen

Answer 11

The post of commissioner of insurance companies held not to fall within official authority exemption because it lacked the final powers to stop insurance companies from pursuing certain policies.

Question 12

Auer

Answer 12

Art 49 cannot be relied upon in purely internal situations.

Question 13

Knoors

Answer 13

Art 49 cannot be relied upon in purely internal situations.

Question 14

Asscher

Answer 14

Art 49 can be relied on in the home state of a Member State national in the absence of a directive as long as there is a cross border element.

Question 15

Thieffry

Answer 15

Indirect Discrimination
Art 49 prohibits indirect forms of discrimination.

Imperative Requirements
Established the principle that a restriction can be justified by an imperative requirement.

Mutual Recognition of Equivalent Qualifications in the Court of Justice
First established this principle.

Question 16

Odre des Avocats Klopp

Answer 16

Art 49 prohibits indirect forms of discrimination.

Question 17

Caixa Bank France

Answer 17

Any national measures which ‘prohibit, impede or render less attractive’ the pursuit of an occupation in more than one MS is sufficient to amount to a restriction under Art 49.

Question 18

Commission v UK (Open Skies)

Answer 18

Derogations set out in Art 52 are regulated by the Treaty alone and by the general principles of EU law including the principle of proportionality.

Question 19

Daily Mail

Answer 19

he MS in which the company is incorporated retains the right to determine the conditions of incorporation of that company and the conditions under which the company may transfer its central administration to another MS.

Question 20

Segers

Answer 20

A company which satisfies the requirements of Art 54 may avail itself of the freedom, specifically provided for by Art 49, to set up agencies, branches or subsidiaries in another MS without restriction even if the company conducts no business of any kind in the MS in which it was incorporated but conducts its business solely through an agency, branch or subsidiary in another MS.

Question 21

Centros

Answer 21

A company which satisfies the requirements of Art 54 may avail itself of the freedom, specifically provided for by Art 49, to set up agencies, branches or subsidiaries in another MS without restriction even if the company conducts no business of any kind in the MS in which it was incorporated but conducts its business solely through an agency, branch or subsidiary in another MS.

Question 22

Inspire Art

Answer 22

A company which satisfies the requirements of Art 54 may avail itself of the freedom, specifically provided for by Art 49, to set up agencies, branches or subsidiaries in another MS without restriction even if the company conducts no business of any kind in the MS in which it was incorporated but conducts its business solely through an agency, branch or subsidiary in another MS.

Question 23

Uberseering

Answer 23

A company which has been incorporated in accordance with the law of one Member State must be recognised as a valid company with legal capacity in other Member States.

Question 24

Commission v Italy (Italian Housing)

Answer 24

Art 49 entitles nationals of a Member State who are exercising their freedom of establishment to have access to certain social rights on the same basis as nationals of the hose Member State.

Question 25

UNECTEF v Heylens

Answer 25

Any decision by the host MS concerning the mutual recognition of the equivalence of qualifications must have an objective basis, and the person concerned must be fully informed of the reasons for the decision, which should itself be subject to legal redress.

Question 26

Vlassopoulou

Answer 26

Authorities must take into consideration the knowledge and qualifications of the applicant certified by her foreign diploma. If they are equivalent the host state must recognise the qualification. If they only partially correspond, national authorities can require the person concerned to show that they have acquired the knowledge and qualifications, either through a course of study or by practical experience.

Question 27

Fernandeza de Bobadilla v Museo Nacional del Pado

Answer 27

Vlassopoulou principles can be applied to a situation in which a national of a MS seeks to rely in their own MS on a qualification awarded in another MS.

Question 28

Tawil-Albertini

Answer 28

An initial non-EU qualification carries no right of acceptance by Member States.

Question 29

Haim

Answer 29

An initial non-EU qualification carries no right of acceptance by Member States. But, following Vlassopoulou principles, the content of the qualification should be considered.

Question 30

Hocsman

Answer 30

Vlassopoulou principles are applicable even when a mutual recognition directive covers the profession in question.