Freedom to Provide/Receive Services

Question 1

Which case confirmed direct effect to Art 56 freedom to provide services?

Answer 1

Van Binsbergen

Question 2

Which three elements need to be satisfied for an undertaking to fall under a service?

Answer 2

1. Remuneration;
2. Genuine and effective economic activity;
3. Cross-border element

Question 3

What was regarded as a service in the case of Jany?

Answer 3

Prostitution

Question 4

What was considered a service in the case of SPUC v Grogan?

Answer 4

Abortion clinics

Question 5

What did the CJ decide was a genuine and economic activity in Deliege?

Answer 5

Professional sport

Question 6

What did the CJ add in Deliege about remuneration?

Answer 6

They said remuneration didn’t have to come from the recipient of the service. In the case of professional sport it would often come from sponsors.

Question 7

What was not an economic activity in the case of SPUC v Grogan?

Answer 7

The distribution of information about abortion clinics.

Question 8

Which case established that Article 56 would not apply where all the relevant elements are confined within a single MS?

Answer 8

Debauve

Question 9

In which case was a local tax on satellite dishes held to have breached Art 56 because it reduced the broadcast of international tv and radio?

Answer 9

de Coster

Question 10

What does the case of Hubbard v Hamburger tell us about the cross-border element in Art 56?

Answer 10

The provider and recipient of the service do not have to be in separate MS

Question 11

What four rights are protected by Art 56?

Answer 11

1. Right to move and reside to provide services;
2. Right to move and reside to receive services;
3. Right to operate a business;
4. Social advantages such as social housing

Question 12

Which case establishes that Art 56 also grants a right of residence to receive services?

Answer 12

Luisi v Ministero del Tesoro

Question 13

In Luisi what could be included in ‘receiving services’?

Answer 13

Education, healthcare, tourism

Question 14

Which case confirmed that direct and indirect discrimination against a business providing services in another MS are covered in Art 56?

Answer 14

Gouda

Question 15

What was found to directly discriminatory in van Binsbergen?

Answer 15

A Dutch law only allowing Dutch residents to represent in court. Van Binsbergen was a Dutch lawyer but had moved to Belgium.

Question 16

How might a residency requirement demanded to perform a profession not be considered indirectly discriminatory?

Answer 16

If it was applied to all within a MS and it could justified for the enforcement of professional conduct

Question 17

What was found to be in breach of Articles 56, 49 and 18 TFEU in Commission v Italy (Italian Housing)?

Answer 17

The restriction of social housing and a reduced mortgage to Italian nationals only. The CJ said it should be available to the self-employed as well.

Question 18

In Cowan v Tresor Public what was Cowan at first refused but then granted in his appeal to the Court?

Answer 18

Cowan was mugged on holiday in Paris and refused compensation from the French Criminal Injuries scheme on the basis of his nationality. The CJ ruled that he was allowed his compensation as a lack of finance inhibited his enjoyment of other services as a tourist.

Question 19

In Commission v Germany (Insurance Services) when did the CJ decide a restriction in services could be justified?

Answer 19

If the restriction was indistinctly applicable and in the public interest

Question 20

What was the Commission saying was against Article 56 in Commission v Germany (Insurance Services)?

Answer 20

The Germans were prohibiting the sale of insurance without a German agent installed in Germany.

Question 21

What was Germany’s defence in Commission v Germany (Insurance Services)?

Answer 21

The law restricting the sale of insurance without a German agent installed in Germany was there to protect policyholders.

Question 22

How did Sager v Dennemeyer Ltd clarify the status of indistinctly applicable measures in relation to restriction of services? What four stage test did it apply?

Answer 22

It said MS may impose national restrictions as long as they are:

1. Imperative for the public interest;
2. Indistinctly applicable (ie non-discriminatory);
3. Objectively necessary to ensure compliance with professional standards;
4. Necessary to attain an objective

Question 23

What is the rule in Sager comparable to in free movement of goods?

Answer 23

Rule of Reason

Question 24

What national rule was found to be disproportionate in Commission v France (Tour Guides)?

Answer 24

A national law requiring tour guides to have a licence.

Question 25

In Schindler v HM Customs and Excise how did the UK successfully defend their restriction on provision of lottery services?

Answer 25

The UK argued the restriction protected the public from fraud and gambling.

Question 26

In Belgium v Humbel what did the CJ was not a service and so non-nationals could be charged at a higher rate?

Answer 26

Secondary education

Question 27

Why did the CJ not view secondary education as a service?

Answer 27

The CJ held that courses within a national education system do not provide services in return for remuneration ie they are not a commercial agreement but provided for by the State.

Question 28

Which case distinguishes secondary education from vocational and University degrees?

Answer 28

Gravier v City of Liege

Question 29

What are the facts in Kohll?

Answer 29

Mr. Kohll had taken his daughter to Germany for orthodontic treatment. On claiming the costs on his return to Luxembourg, he was refused. Luxembourg authorities were found in breach of Art 56 for requiring nationals who sought medical treatment in another MS to get permission from them first for the reimbursement.

Question 30

In which two cases were individuals allowed to seek medical treatment in another MS and claim back from their own national free health service?

Answer 30

1. Geraets-Smits/Peerbooms

2. Watts v Bedford Primary Health Care Trust

Question 31

In Muller-Faure when did the CJ say there may be a restriction on provision of health services?

Answer 31

When public health is a concern and if the restriction meets the Sager rules

Question 32

The Commission originally wanted to pass the Services Directive on the basis of the principle of ‘home regulation’. What is ‘home regulation’? Why was it rejected?

Answer 32

Home regulation means that service providers licensed in one MS could provide their services in any other. MS rejected the idea on the likelihood that service providers would flock to one MS to obtain their licences and there would be a decrease in professional standards across Europe.