Freedom to Provide Services

Question 1

Van Binsbergen

Answer 1

Art 56 does have direct effect.
Arts 56 and 57 prohibit measures which discriminate against providers on the basis of residence.

Imperative Reasons:
Established the possibility of the justification of indistinctly applicable restrictions on freedom provide services for imperative reasons.

Question 2

Grogan

Answer 2

The list of services in Art 57 is not exhaustive.

There are limits to the extent of Art. 56.

Question 3

Jany

Answer 3

The list of services in Art 57 is not exhaustive.

Question 4

Deliege

Answer 4

Remuneration can be paid by a third party.
Art 56 can apply to situations where there is a cross-border element.
Example of a restriction on freedom to provide services being justified by imperative reasons.

Question 5

Steymann

Answer 5

Service provided must be genuine and effective economic activity, not merely marginal or ancillary.
An activity pursued for remuneration will be regarded as an economic one.

Question 6

Her Majesty’s Customs and Excise v Schindler

Answer 6

An activity pursued for remuneration will be regarded as an economic one.

Imperative Reasons:
Example of a restriction on the freedom to provide services that was justified.

Question 7

Omega

Answer 7

Art 56 will govern where the other applicable freedom is entirely secondary to the freedom to provide services.
Example of a restriction on freedom to provide services being justified by imperative reasons.

Question 8

Gebhard

Answer 8

The provisions of the chapter on services are subordinate to those on establishment.

Question 9

Procureur du Roi v Debauve

Answer 9

Art 56 does not apply to purely internal situations.

Question 10

De Coster

Answer 10

Art 56 can apply to situations where there is a cross border element.

Question 11

Hubbard v Hamburger

Answer 11

Art 56 can apply to situations where there is a cross border element even if provider and recipient are in the same Member State.

Question 12

Societie Generale Alsacienne de Banque SA v Koestler

Answer 12

Court initially proved reluctant to extend prohibition in Art 56 to non-discriminatory measures which acted as obstacles to services.

Question 13

Commission v Germany (Insurance Services)

Answer 13

Court extended Art 56 to situations where non-discriminatory measures act as obstacles to freedom to provide services.

Imperative Reasons
Freedom to provide services may be restricted only by provisions which are justified by the general good and which are applied to all persons within the State.
Court will take into account whether or not the relevant public interest is already protected by the rules of the service provider’s own Member State in determining whether or not the restriction by the host MS in which it is providing the service is justified by an imperative reason.

Question 14

Sager v Dennemeyer & Co

Answer 14

Court extended Art 56 to situations where non-discriminatory measures act as obstacles to freedom to provide services

Imperative Reasons
National measures can only restrict the freedom to provide services if they satisfy the following conditions:
- They are indistinctly applicable
- They are justified by imperative reasons in the general interest
- They are objectively necessary so as to ensure compliance with professional rules and to protect the recipients of services; and
- They do not exceed what is necessary to attain these objectives.

Question 15

Analir

Answer 15

Art 56 restricts all measures that prohibit, impede or render less attractive the provision of services.

Question 16

Guiot

Answer 16

Court will take into account whether or not the relevant public interest is already protected by the rules of the service provider’s own Member State in determining whether or not the restriction by the host MS in which it is providing the service is justified by an imperative reason.

Question 17

Rush Portuguesa

Answer 17

Freedom to provide services includes the right for a service provider to bring his own workforce to the host MS for the period that the service is provided.

Question 18

Luisi

Answer 18

The freedom to provide services includes the freedom to travel to another MS to receive services.

Question 19

Commission v Italy (Italian Housin)

Answer 19

Those exercising their freedom to give/receive services are entitled to certain social rights on the same basis as nationals of the MS.

Question 20

Cowan v Tresor Public

Answer 20

Those exercising their freedom to give/receive services are entitled to certain social rights on the same basis as nationals of the MS.

Question 21

Belgium v Humbel

Answer 21

Courses provided within a national education system do not constitute a service in return for remuneration.

Question 22

Wirth v Landeshaupstadt Hannover

Answer 22

State-funded higher education does not fall within Art 56. Higher education establishments which are financed out of private funds and which seek to make an economic profit can constitute services.

Question 23

Kohll

Answer 23

In principle, EU law allows Member States to organise their own social security systems. But it held that they must abide by EU law when exercising those powers.
A system of prior authorisation before travelling to receive healthcare may constitute a restriction under Art 56 unless it can justified by an imperative reason.

Question 24

Geraets-Smits and Peerbooms

Answer 24

A system of pre-authorisation for individuals to travel to another MS to receive medical treatment is a restriction unless it can be justified on one of three grounds:

1. The possible risk of seriously undermining a social security system’s financial balance – imperative reason
2. The need to maintain a balanced medical and hospital service open to all – Art 52 public health derogation
3. That the maintenance of treatment capacity or medical competence on national territory is essential for public health, and even the survival of the population – Art 52 public health derogation

Question 25

Watts

Answer 25

Rights under Art 56 must be balanced against overriding national objectives.

Question 26

Commission v Spain (Museum Entrance Fees)

Answer 26

Art 56 guarantees the right for tourists, as recipients of services, to access those services under the same conditions as nationals.