Freedom of Services

Question 1

4 definitional elements of a service?

Answer 1

1. An activity pursued on a temporary basis
2. For remuneration by the recipient or any other interested party
3. Which has a cross-border element (OK if provider and recipient are in same MS if there is some degree of externality)
4. and is genuine and effective

Question 2

When will providing information constitute a service?

Answer 2

When there is some connection between the distributor of the information and the service provider.

Question 3

What are the two main limits on freedom of services?

Answer 3

Doesn’t operate if

1. Governed by provisions dealing with the other 4 freedoms or
2. Linked to exercise of official authority (e.g. legal profession)

Question 4

When is an EU citizen entitled to reimbursement from its home state for medical treatment in another state?

Answer 4

If there has been a failure by the home state’s national healthcare system to provide the treatment sought, and it is unable to justify the failure

Question 5

What kinds of restrictions on freedom of services are prohibited (3 kinds)

Answer 5

Any measure that in any way renders less attractive the freedom to provide and receive services, whether by (i) direct discrimination (ii) indirect discrimination or (iii) indistinctly applicable measures

Question 6

When can a restriction on freedom of services be justified?

Answer 6

1. By reference to express derogations (public policy, security or health)
2. By reference to imperative requirements such as public health, environmental or consumer protection, etc if (i) indistinctly applicable (ii) objectively necessary to protect the person receiving the service and (iii) proportionate to the objective achieved

Question 7

When can a host MS refuse treatment to an EU national from another MS?

Answer 7

Under Art. 52, can refuse treatment due to financial constraints if

(i) related to public health imperative requirement (e.g. maintenance of treatment capacity on national territory essential for public health) and
(ii) Sager test for imperative requirements is met, i.e. measure is indistinctly applicable, necessary and proportionate

Question 8

Difference between freedom of establishment and freedom of services?

Answer 8

Establishment = install oneself and one’s business on a permanent or semi-permanent basis

Services = establish in another MS to provide services on a temporary basis

Question 9

Van Binsbergen (example of valid defence)?

Answer 9

A requirement that an individual be habitually resident in the host MS for purposes of a particular professional qualification not incompatible if objectively justified by the need to ensure respect for professional rules and ethics