Freedom of Establishment I - Individuals

Question 1

When we are talking about freedom of establishment of the individual, what are we in essence talking about?

Answer 1

right to self employment and setting up and managing undertakings in another MS

Question 2

How dose it work with revers discrimination in establishment?

Answer 2

It can be applied against a home state. There is almost never not a cross border element.

MS may not restrict nationals who wish to leave the territory in order to set up an establishment in another MS

Also works the other way around. Nationals who wish to establish themselves within their own MS may be disadvantaged if the qualification they have obtained in another MS are not recognized by their own state (C Knoors)

As such this field has been harmonized a lot with secondary legislation. The CRD also has the right of recedence for self employed

Question 3

How do we define self-employed

Answer 3

In the case Jany the court came to the conclusion that a person is self employed if:

They are outside any “normal” employment relationship

under their own responsibility

and in return remuneration is paid to that person directly and in full

Question 4

What is it that makes establishment different from services?

Answer 4

C Gebhard

Services are more temporary in nature. The right to establishment is more of a permanent peruse of economic activity in another MS where as services are temporary in nature.

Question 5

dose the right to establishment cover both primary and secondary establishment?

Answer 5

Yes

Question 6

What is primary and secondary establishment?

Answer 6

Primary establishment – an individual leaves State A to set up a permanent establishment in State B.

Secondary establishment – an individual maintains an establishment in State A while setting up a second professional base (e.g. office/chambers) in State B.

Question 7

C Klopp

Answer 7

a German national and member of the Düsseldorf Bar wished to practice in Paris as an avocat while remaining a member of the Düsseldorf Bar and retaining his residence and chambers there. His application was rejected – an avocat could have only one set of chambers (primary establishment).

The Court said that the rule breached Article 49 TFEU as individuals were entitled to maintain more than one establishment

Question 8

C Reyners

Answer 8

Direct discrimination

a Belgian rule preventing a qualified Dutch national from practising as a lawyer in Belgium on the grounds of his nationality

Question 9

C Gullung

Answer 9

Sample of a indirect discrimination
E.g. a requirement to hold a license or be registered

a French requirement for all lawyers to be registered at the Bar before practicing considered justified on the ground of ensuring ‘the observance of moral and ethical principles and the disciplinary control of the activity of lawyers.

Question 10

C Gebhard

Answer 10

The case that drew the line between