Freedom of Establishment

Question 1

Article 49 applies to…

Answer 1

Self-employed persons (Jany)
&;
Companies and firms (A54)

Question 2

Steymann

Answer 2

Establishment requires permanent basis in MS or without foreseeable limit to duration

Question 3

Gebhard

Answer 3

1. Establishment defined as participating on a stable and continuous basis
2. Provided criteria to justify a restriction on Freedom of Establishment by Imperative Requirement
3. A measure that hinders Freedom of Establishment can be considered a restriction whether it is discriminatory or not

Question 4

Reyners

Answer 4

Established A49 vertical direct effect

Question 5

Viking Line

Answer 5

Established A49 horizontal direct effect

Question 6

A51

Answer 6

Official Authority Exemption: exempts activities connected with the exercise of official authority

Question 7

Nino

Answer 7

A49 does not apply to purely internal situations

Question 8

Asscher

Answer 8

There must be a cross border element for A49 application

Question 9

Thieffry

Answer 9

1. Indirect discrimination can constitute a restriction on Freedom of Establishment
2. Established mutual recognition of EU qualifications

Question 10

CaixaBank

Answer 10

A measure that prohibits, impedes or renders less attractive FoE can be a restriction

Question 11

A52

Answer 11

Derogations of Public policy, security, health (must be proportionate)

Question 12

Imperative Requirements (Gebhard)

Answer 12

1. Applied in a non-discriminatory manner
2. Justified by imperative requirements in the general interest
3. Suitable for attaining the objective which they pursue
4. Not go beyond what is necessary to achieve that objective

Question 13

A54 conditions for company to be treated as natural persons under A49

Answer 13

Companies and firms that satisfy conditions are treated same as natural persons under A49:

1. Formed in accordance with the law of MS
2. Registered office, central administration or principle place of business is within the EU
3. Profit making

Question 14

Incorporation Doctrine

Answer 14

Connecting factor: where company was legally incorporated and has its registered office (e.g. UK and Ireland)

Question 15

Real Seat Doctrine

Answer 15

Connecting factor: where company’s central administration is located (e.g. France and Germany)

Question 16

Daily Mail

Answer 16

Where tax regimes between countries differ, a country may be able to restrict FoE without a breach… not in this case

Question 17

Centros

Answer 17

Once a company is established in one MS, all branches covered by A49

Question 18

Uberseering

Answer 18

Under FoE companies have a right of mutual recognition across MSs

Question 19

Jany

Answer 19

Self employment defined as:

1. Acts outside of any relationship of subordination
2. Under the person’s own responsibility
3. In return for remuneration

Question 20

A53

Answer 20

Provides for issuing directives for mutual recognition of qualifications; there are directives for specific professions

Question 21

Valssopoulou

Answer 21

Must take into account practical experience

Question 22

Tawil-Albertini compared with Haim

Answer 22

T-A: There is no right to the mutual recognition of non-EU qualifications

Haim: MSs are obliged to consider practical experience gained within EU where a qualification gained outside the EU is recognised by another MS

Question 23

Italian Housing

Answer 23

Discrimination of natural persons seeking social rights prohibited