Freedom of Establishment and Services Flashcards
Commission v Germany (Insurance Services
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
Factortame II
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
Reyners
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
Viking Line
Article 49 has horizontal direct effect
Steymann
Establishment (defined in opposition to services) = activities carried out on a permanent basis or without foreseeable limit to its duration
Gebhard
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
Commission v Greece
Road traffic experts called as court witnesses were not under the official authority exception
Commission v Italy
Provision and operation of a computer system for national lottery did not fall within the official authority exception
Thijssen
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
Nino
Article 49 will not apply to purely internal situations where there is no element outside the single member state
Auer
Article 49 will not apply to purely internal situations
2nd conviction - could rely on harmonising directive to recognise qualification
Knoors
Article 49 will not apply to purely internal situations - instead could rely on directive to recognise plumbing qualifications
Asscher
Article 49 will be engaged where there is no directive so long as there is a sufficient cross-border element involved
CaixaBank
Any national measure which prohibits, impedes or renders less attractive the pursuit of an occupation in another member state falls under Article 49
Daily Mail
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
Sergers
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
Centros
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
Inspire Art
Infringement of Article 49 by imposing additional burdens on directors of companies which were lawfully incorporated elsewhere
Uberseering
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
Jany
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
Heylens
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
Vlassopoulou
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
Thieffrey
Expanded Article 49 to include indirect discrimination
Introduced the idea of imperative requirements
Mutual recognition of EU qualifications
Klopp
Expanded Article 49 to include any measure which will impede Freedom of Establishment
Idea of proportionality of imperative requirements
Italian Housing
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
Cowan
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
Bobadilla v Museo Nacional Del Prado
Entitled to rely on Vlassopoulou principles in own member state when qualification has been obtained in another member state
Tawil-Albertini
Recognition of a non-EU qualification in one member state does not guarantee recognition of the qualification in another member state
Haim
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
Hocsman
Vlassopoulou principles are available even in the instance of a mutual recognition directive
Commission v UK (Open Skies)
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
Schindler
Lotteries are economic activities as they are services provided in return of remuneration
Deliege
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
Grogan
Abortion counts as a service
Humbol
State education does not constitute a service - performed by the state to fulfil civic duties rather than in return for remuneration
Wirth
State-funded higher education is not a service
Higher education institutions which are privately funded may constitute a service
Hubbard
Direct discrimination on grounds of nationality is breach of Article 56
Debauve
Article 56 does not apply to activities which are within a single member state
De Coster
Breach of Article 56 if the measure impedes the freedom to receive services from other member states
Omega
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
Kohil
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
Guiot
Any restriction which places a dual burden on an individual will be a breach of Article 49 unless it can be justified
Peerboom and Gelvaets-Smits
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
R v Bedford PCT
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
Commission v Spain (Museum Fees)
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
Koestler
Article 56 & 57 prohibit both direct and indirect forms of discrimination
Analir
Article 56 encompasses restrictions which render Freedom to Provide Services less attractive
Rush Portuguesa
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
Van Binsbergen
Article 56 has direct effect
Article 56 includes measures which discriminate on the basis of residency as well as nationality
Introduced imperative reasons
Luisi
Freedom to travel to receive services in another member state
Sager
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
