Freedom of Establishment and Services

Question 1

Commission v Germany (Insurance Services

Answer 1

Establishment = maintaining a permanent presence even if not in the form of a brach or agency, but merely as an office run by an authorised member of the undertaking’s staff
Articles 56 and 57 prohibit all restrictions of FPS by reason of the fact that the service is being provided in a different country than where the individual is established

Question 2

Factortame II

Answer 2

Establishment involves the actual pursuit of an economic activity through a fixed establishment in another member state for an indefinite period of time
Companies enjoy the same freedom of establishment as individuals

Question 3

Reyners

Answer 3

Article 49 has been capable of vertical direct effect since the transition period ended
Official authority exemption: derives from the majesty and sovereignty of the state
Prerogatives outside the general law
Privileges of official power
Powers of coercion over citizens
Must be directly and specifically linked to the exercise of official power

Question 4

Viking Line

Answer 4

Article 49 has horizontal direct effect

Question 5

Steymann

Answer 5

Establishment (defined in opposition to services) = activities carried out on a permanent basis or without foreseeable limit to its duration

Question 6

Gebhard

Answer 6

Establishment allows an EU national to participate on a stable and continuous basis in the economic life of another member state, determined in light of continuity, regularity and periodicity
Any measure which hinders or makes freedom of establishment less attractive is prohibited under Article 49
Imperative Requirements
Must be non-discriminatory
Must be imperative
Must be suitable
Must not go beyond what is necessary

Question 7

Commission v Greece

Answer 7

Road traffic experts called as court witnesses were not under the official authority exception

Question 8

Commission v Italy

Answer 8

Provision and operation of a computer system for national lottery did not fall within the official authority exception

Question 9

Thijssen

Answer 9

Post of Commissioner of Insurance companies did not fall under official authority exception since they did not have the final power to prohibit certain behaviours

Question 10

Nino

Answer 10

Article 49 will not apply to purely internal situations where there is no element outside the single member state

Question 11

Auer

Answer 11

Article 49 will not apply to purely internal situations

2nd conviction - could rely on harmonising directive to recognise qualification

Question 12

Knoors

Answer 12

Article 49 will not apply to purely internal situations - instead could rely on directive to recognise plumbing qualifications

Question 13

Asscher

Answer 13

Article 49 will be engaged where there is no directive so long as there is a sufficient cross-border element involved

Question 14

CaixaBank

Answer 14

Any national measure which prohibits, impedes or renders less attractive the pursuit of an occupation in another member state falls under Article 49

Question 15

Daily Mail

Answer 15

The member state where the company was incorporated retains the right to determine the conditions of incorporation and transfer of central administration to another member state

Question 16

Sergers

Answer 16

A company can conduct itself without restriction in another member state even if its sole commercial activity is through a branch in another member state to the country of incorporation

Question 17

Centros

Answer 17

The refusal of a member state to register a branch of a company legal incorporated in another member state is a restriction to the freedom of establishment contrary to Article 49

Question 18

Inspire Art

Answer 18

Infringement of Article 49 by imposing additional burdens on directors of companies which were lawfully incorporated elsewhere

Question 19

Uberseering

Answer 19

A company which has been lawfully incorporated in one member state must be recognised as having legal capacity in another member state in which it seeks establishment

Question 20

Jany

Answer 20

Self-employment = outside relationship of subordination in regards to work activity/remuneration/conditions, under their own responsibility, and in return for full and direct remuneration

Question 21

Heylens

Answer 21

Any decision by a host Member State over qualifications must have an objective basis, the reasoning must be communicated to the individual and the decision must have legal redress

Question 22

Vlassopoulou

Answer 22

Authorities must take into account the requirements of the individual’s qualifications and compare them to the national qualification of the host member state, and any discrepancy can be made up for by previous practical experience or by a course of study

Question 23

Thieffrey

Answer 23

Expanded Article 49 to include indirect discrimination
Introduced the idea of imperative requirements
Mutual recognition of EU qualifications

Question 24

Klopp

Answer 24

Expanded Article 49 to include any measure which will impede Freedom of Establishment
Idea of proportionality of imperative requirements

Question 25

Italian Housing

Answer 25

Nationals of Member States exercising their Freedom of Establishment are entitled to some rights on the same basis as nationals of the host member state - cannot be discriminated against because of their nationality

Question 26

Cowan

Answer 26

Freedom to travel to receive services - includes protection of receiver from harm
Tourism counts as a service
Must be able to receive services on the same basis as nationals of that member state

Question 27

Bobadilla v Museo Nacional Del Prado

Answer 27

Entitled to rely on Vlassopoulou principles in own member state when qualification has been obtained in another member state

Question 28

Tawil-Albertini

Answer 28

Recognition of a non-EU qualification in one member state does not guarantee recognition of the qualification in another member state

Question 29

Haim

Answer 29

Could not rely on harmonising directive (non-EU qualification) - court applied Vlassopoulou principles to non-EU qualification - national authorities had to compare his qualification with the requirements of the host member state’s qualification

Question 30

Hocsman

Answer 30

Vlassopoulou principles are available even in the instance of a mutual recognition directive

Question 31

Commission v UK (Open Skies)

Answer 31

Public policy derogation: must deal with a genuine and sufficiently serious threat to a fundamental interest in society, and there must be a causal link between the threat and the measure

Question 32

Schindler

Answer 32

Lotteries are economic activities as they are services provided in return of remuneration

Question 33

Deliege

Answer 33

Sporting activities may constitute a service

Remuneration does not have to be paid by the person to whom the service is performed - may be a third party

Question 34

Grogan

Answer 34

Abortion counts as a service

Question 35

Humbol

Answer 35

State education does not constitute a service - performed by the state to fulfil civic duties rather than in return for remuneration

Question 36

Wirth

Answer 36

State-funded higher education is not a service

Higher education institutions which are privately funded may constitute a service

Question 37

Hubbard

Answer 37

Direct discrimination on grounds of nationality is breach of Article 56

Question 38

Debauve

Answer 38

Article 56 does not apply to activities which are within a single member state

Question 39

De Coster

Answer 39

Breach of Article 56 if the measure impedes the freedom to receive services from other member states

Question 40

Omega

Answer 40

Article 56 will govern where free movement of people/goods/capital is secondary to Freedom to Provide Services
Public policy derogations have to deal with a genuine and sufficiently serious threat to a fundamental interest of society

Question 41

Kohil

Answer 41

The issue concerning a social security system does not preclude Article 56
Purely economic arguments cannot be used to justify a restriction on freedom to receive services
Threat to social healthcare systems could justify such a restriction

Question 42

Guiot

Answer 42

Any restriction which places a dual burden on an individual will be a breach of Article 49 unless it can be justified

Question 43

Peerboom and Gelvaets-Smits

Answer 43

Healthcare constitutes a service - restriction can be justified if there is a risk of undermining social security system, to maintain hospital service, and treatment capacity is necessary for public health

Question 44

R v Bedford PCT

Answer 44

Receiving medical care abroad constitutes a service no matter how the healthcare system in the home Member State is financed
Need to balance freedom of movement of patients with budgetary considerations of social security and healthcare system

Question 45

Commission v Spain (Museum Fees)

Answer 45

Article 56 guarantees the freedom of nationals of member states to receive services on the same basis as nationals of that member state where the service is received

Question 46

Koestler

Answer 46

Article 56 & 57 prohibit both direct and indirect forms of discrimination

Question 47

Analir

Answer 47

Article 56 encompasses restrictions which render Freedom to Provide Services less attractive

Question 48

Rush Portuguesa

Answer 48

Freedom to Provide Services includes the right for a service provider to bring their own work force into the member state for the period of the service provision

Question 49

Van Binsbergen

Answer 49

Article 56 has direct effect
Article 56 includes measures which discriminate on the basis of residency as well as nationality
Introduced imperative reasons

Question 50

Luisi

Answer 50

Freedom to travel to receive services in another member state

Question 51

Sager

Answer 51

Prohibition under Article 56 extended to non-discriminatory measures
Imperative Reasons
Must be indistinctly applicable
Must be imperative reason
Must be necessary
Must be proportionate