Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

EU > Freedom of Establishment and Services > Flashcards

Freedom of Establishment and Services Flashcards

1
Q

Art 49 TFEU

A
  • Applies to:
    • Self-employed persons (Art 49)
    • Companies and Firms (Art 54)
  • Prohibits:
    • Restrictions on Freedom of Establishment
  • Rights include:
    • Setting up and managing undertakings such as:
      • Companies and firms
      • Agencies, branches and subsidiaries
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Jany [2001]

A
  • A person is self-employed if act:
    • Outside any relationship of subordination
    • Under their own responsibility
    • In return for remuneration
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Steymann [1988]

A

Establishment entails activities carried out on a permanent basis or without a foreseeable limit to its duration.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Gebhard [1995]

A

Extended definition of establishment in Steymann to allow an EU national to participate on a stable and continuous basis in the economic life of the Member State.

German national practised as a lawyer in Italy for several years and then set up chambers in Italy fell within establishment.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Reyners [1974]

A

CoJ ruled Article 49 had been capable of having vertical direct effect since the end of the transition period.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Viking Line [2007]

A

CoJ held that Article 49 could be held against trade unions and therefore capable of horizontal direct effect.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Art 51 TFEU

A

Exempts activities connected, even occasionally, with the exercise of official authority

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Reyners [1974] (Official Authority)

A
  • AG Mayras defined official authority as that which arises from sovereignty and majesty of the state.
    • Power of enjoying prerogatives outside the general law
    • Privileges of official power
    • Powers of coercion over citizens.
  • COJ ruled activities must have direct and specific connection to official authority.
  • Rejected argument that the official authority exemption applied to whole of legal profession in Belgium.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Knoors [1979]

A

Article 49 does not apply to situations that are purely internal to a MS but could apply where there was a cross border element.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Nino [1990]

A

Confirmed decision in Knoors that Art 49 does not apply in a purely internal situation.

Plant/faith healers resident in Italy provided treatment in Italy without authorisation to practice as medical doctors and were being prosecuted. Everything about the case was solely to do with Italy and so Art 49 didn’t apply.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Asscher [1996]

A

Article 49 will apply as long as there is a sufficient cross border element.

Dutch national residing in Belgium was a director of companies in Holland and Belgium. Taxed in Holland as a non-resident (higher tax rate). CoJ held situation was not solely related to Netherlands as he had been taxed as a result of decision to move to Belgium as self-employed.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Art 52 TFEU

A
  • Allows for restriction of freedom of establishment on the grounds of:
    • Public Policy
    • Public Security
    • Public Health
  • Even if the restriction is discriminatory.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Open Skies [2002]

A
  • Confirmed that the public policy derogation requires:
    • a genuine, sufficiently serious threat, affecting one of the fundamental interests of society and
    • a direct causal link between the threat and the measure adopted
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Gebhard [1995] (imperative requirements)

A

National measures which hinder or make less attractive freedom of establishment must satisfy 4 conditions to be justified:

  • Applied in a non-discriminatory manner
  • Justified by imperative requirements in the general interest
  • Suitable for attaining the objective which they pursue
  • Not go beyond what is necessary to attain that objective.
  • Must also be proportionate
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Art 54 TFEU

A

Companies & firms which satisfy the following conditions are treated the same way as natural persons under Art. 49:

  • Formed in accordance with the law of a Member State
  • Registered office, central administration or principal place of business is within the EU
  • Profit making
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Incorporation Doctrine

A
  • UK, Ireland, Netherlands, Scandinavia
  • Connecting Factor = where company legally incorporated and has connecting office
  • Determine validity of a foreign company on basis of law of MS in which incorporated.
  • Permits a company incorporated in MS to transfer central administration to another MS without affecting its legal capacity
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Real Seat Doctrine

A
  • All other Member States
  • Connecting Factor = where company’s central administration is located
  • Determine validity of a foreign company on basis of law of MS in which it has its central administration
  • Prohibits a company incorporated in MS to transfer central administration or permits under certain conditions. Can be dissolved if transfers.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Daily Mail [1988]

A

Member States retain the right to determine conditions of incorporation for a company and conditions under which it may transfer its administration to another MS

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Segers [1986]

A

May set up subsidiaries in another MS without restriction even if the company conducts no business of any kind in country in which it was incorporated and conducts business solely in another MS

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Centros [1999]

A
  • Reaffirmed Segers.
  • Not an abuse of EU law for 2 Danish nationals to avoid share capital requirements in Denmark by incorporating a company in UK despite not trading there.
  • Danish Trading Companies Board refused to register branch saying anti-freedom of establishment.
  • Held not to be a breach and ability to do so was inherent in goal of freedom of movement. Therefore, refusal to provide them with a trading certificate was a breach of Art 49
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Inspire Art [2003]

A

Dutch law required any foreign company which established a branch in Netherlands to maintain share capital at least equal to minimum share capital required by Dutch companies and made directors liable for failure to comply with requirement. Held to be a breach of Art 49.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Überseering [2002]

A
  • Principle of mutual recognition.
  • Company incorporated in accordance with law of 1 MS must be regulated as a legal company in another MS in which it seeks to establish.
  • Germany refused to recognise a Co incorporated in Netherlands but transferred admin to Germany because required incorporation in Germany. Overruled by CoJ and had to be recognised as otherwise a breach of Art 49
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Directive 2004/38

A

Governs rights of entry and expulsion for all EU citizens.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Art 49 TFEU

A

Entitles nationals of MS exercising freedom of establishment to have access to social rights on same basis as nationals of the host MS.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Commission v Italy (Italian Housing) [1988]

A

Discrimination prohibited under Art 49.

Italian legislation only allowed Italian nationals to purchase or lease property built with help of public funds and benefit from a reduced mortgage. Breach as have to have same conditions as MS

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Art 53 TFEU

A

Provides for issuing directives for mutual recognition of qualifications

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Directive 2005/36

A

Provides for mutual recognition of qualifications for all regulated professions where there is no specific directive

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Thieffry [1977]

A

It is an unjustified restriction to refuse a person covered by the Treaty with a diploma which has been recognised as an equivalent qualification in another MS.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Vlassopoulou [1991]

A

Must consider the knowledge of the applicant certified by the foreign diploma.

If not equivalent must allow the applicant to prove they have acquired the knowledge lacking by other means – practical experience or other qualification.

30
Q

Tawil-Albertini [1994]

A

The fact that one MS accepted the equivalent of qualifications from a non-EU state, does not bind other MS where those qualifications are not listed in directive 2005/36

31
Q

Haim [1994]

A

MS not forced to accept equivalence of qualification from non-EU state but following Vlassopoulou principle have to allow that person to demonstrate his knowledge and experience corresponds with what is required.

32
Q

Hocsman [2000]

A

CoJ extended principle in Vlassopoulou.

National of MS could rely directly on Vlassopoulou principles even where there was a harmonising directive which covers the specific profession and his qualifications did not satisfy the requirements of the harmonising directive

33
Q

Art 57 TFEU

A

Temporary presence in MS or no presence at all, Article 56 governs and it is a matter of freedom of services.

34
Q

Conditions to be a Service

A
  • Remuneration -
    • Can be from 3rd party [Deliege]
  • Service provided must be a genuine and effective economic activity and not merely marginal or ancillary [Steymann]
35
Q

Deliege [2000]

A

Remuneration can be paid by a 3rd party.

Amateur athletes allow authorities to sell tickets to their events, advertising, and broadcasting rights. In turn, athletes may be paid by sponsors.

36
Q

Steymann [1988]

A

Service provided must be a genuine and effective economic activity and not merely marginal or ancillary.

An activity pursued for remuneration will be an economic one

37
Q

4 types of service outlined in Art 57

A
  • Industrial
  • Commercial
  • Craftsmen
  • Professionals
38
Q

Grogan [1991]

A

Abortion for remuneration is a service

39
Q

Jany [2001]

A

Prostitution is a service

40
Q

Deliege [2000]

A

Sport is a service

41
Q

Schindler [1994]

A

Lotteries are a service

42
Q

Humbel

A

State education is NOT a service.

State provides an education system to fulfil its duties to its own population; not to make a profit.

Generally funded from public purse as opposed to pupils or parents.

43
Q

Art 62 TFEU

A

Applies Art 51 (official authority exception) to freedom of services under Art 56.

44
Q

Matters which fall outside scope of Article 56 TFEU

A
  • Official authority exception
  • Where services are not governed by provisions relating to freedom of movement for goods, capitals or persons
    • ​unless secondary to primary restriction [Omega]
  • Internal Situations unless cross-border dimension
45
Q

Omega [2004]

A

Art 56 will govern where the other applicable freedom is entirely secondary to the freedom to provide services.

Ban on laser combat games in facilities run by Omega impeded supply of services and free movement of goods. Goods deemed secondary.

46
Q

Gebhard [1995]

A

Provisions of the chapter on services are subordinate to those of establishment.

47
Q

Deliège [2000]

A

Athlete competing in another MS sufficient to warrant a cross-border dimension and be governed by Art 56.

48
Q

Hubbard [1993]

A

Solicitor in UK acting as executor of will under English law.

Seeking to bring a claim in German court re property in Germany.

Able to rely on Art 56 to challenge a German rule that non-German nationals bringing claims in German courts had to provide security for costs.

49
Q

de Coster [2001]

A
  • Provider and recipient can be based in same MS as long as cross-border element.
  • Local tax imposed by municipal council on ownership on satellite dishes in locality. Article 56 applied because such satellite dishes could receive broadcast services from other MS. Tax would dissuade people from receiving those broadcast services.
50
Q

Van Binsbergen [1974]

A

Art 56 and 57 prohibit discrimination by reason of nationality or residence

51
Q

Sager [1991]

A

Art 56 and 57 prohibit any measure liable to prohibit or impede service provider even if indistinctly applicable

52
Q

Analir [2001]

A

Art 56 and 57 prohibit any restriction liable to prohibit, impede or render less attractive activities of a service provider even if indistinctly applicable.

53
Q

Omega [2004]

A

Public policy derogation may only be relied upon if there is a genuine and sufficiently serious threat to a fundamental interest of society.

COJ held ban could be justified on grounds of public policy. Laser game involved simulated killing of human beings and infringed the fundamental right to human dignity. Fundamental interest of society that this interest was protected.

54
Q

Sager [1991] (Imperative Reasons)

A

National measures can only restrict the freedom to provide services if satisfy following conditions:

  • Indistinctly applicable – apply to all persons in state of destination
  • Justified by imperative reasons in the general interest
  • Objectively necessary to protect that interest
  • Does not exceed what is necessary to attain that objective
  • Proportionate
55
Q

Schindler [1994]

A

UK government able to defend decision to prosecute Schindlers for organizing a lottery that wasn’t the National Lottery because of high risk of fraud and tendency of MS to restrict gambling to protect consumer

56
Q

Deliege [2000]

A

Laying down quotas for competitors justified to provide high-level sports competition. Decision to not select Deliege was not because of her nationality.

57
Q

Insurance Services [1986]

A
  • CoJ consider whether relevant public interest already protected by rules of service provider’s own MS when determining whether restriction in host MS is justified by an imperative reason.
  • Prevents MS having to comply with duel burden.
58
Q

Rush Portuguesa [1990]

A

Service provider has right to bring his own workforce to the host MS for period service is provided.

59
Q

Luisi [1984]

A

Individuals have the right to travel to another MS to receive services

60
Q

Italian Housing [1988]

A
  • Entitles a service provider to access certain social rights on the same basis as nationals of host MS.
  • Self-employed persons in Italy were entitled to social housing and reduced rate mortgages on same basis as Italian nationals.
61
Q

Cowan [1989]

A
  • Extends decision in Luisi that if Art 56 guarantees freedom to travel to another MS to receive services, it must also protect them from harm.
  • Not allowing a British national to claim compensation from French state after being mugged in Paris on grounds of not being resident in France was discriminatory.
62
Q

Humbel [1988]

A

State education does not constitute a service

63
Q

Kohll [1998]

A

Restrictions on freedom of hospital services can be justified on these grounds:

  • Risk of seriously undermining a social security system’s financial balance
  • Need to maintain a balanced medical and hospital service open to all.
  • Maintenance of treatment capacity/medical competence on national territory is essential for public health.

(Last 2 covered by Art 52 derogation on public health)

64
Q

Geraets-Smits [2001]

A

Provision of hospital care free-of-charge but covered by a sickness insurance fund still constitutes an economic activity covered by Article 56.

65
Q

R (Watts) v Beford Primary Care Trust [2006]

A

Art 56 applies where a patient receives medical services for consideration in another MS, regardless of the way in which the national health care system with which she is registered operates.

Must consider hospital capacity, health expenditure, financial balance of social security systems.

66
Q

Article 1(1) Directive 2006/123 (Services Directive)

A

Establishes general provisions facilitating the exercise of

  • the freedom of establishment for service providers and
  • the free movement of services
  • while maintaining a high quality of services.
67
Q

Art. 62 applies Art. 53

A

Provides for issuing directives for mutual recognition of qualifications in matters of freedom of services

68
Q

Title II Directive 2005/36

A

Applies to professional qualifications not governed by specific directive.

  • Must be a regulated profession
  • Service provider must already be legally established in another MS and looking to move to another MS on a temporary or regular basis in order to pursue the regulated profession there.
69
Q

Hannover-Nord [2015]

A

Title II Directive 2005/36 does not apply where the services are provided in the host MS without the service provider having physically moved there.

70
Q

Pennaroja Fa [2011]

A

Where secondary legislation not available, principles laid down in Vlassapoulou and other cases in relation to freedom of establishment are applied to freedom to provide services.

EU (6 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions