Freedom to provide services I- Individuals* Flashcards
What falls to be considered services?
Very broad
tourism, healthcare, financial services, business, transmission of a television signal, debt-collection work, lotteries, insurance, etc..
What draws the line between establishment and services?
C Gebhard
The temporary nature of the activities has to be determined “in the light, not only of the duration of the provision of the service but also of its regularity, periodicity or continuity”.
The service provider can still equip himself with some form of infrastructure in the host MS
Does ART 56 TFEU have direct effect?
Yes
Can Art 56 be used to challenge rules laid down by home State?
Yes, Article 56 TFEU can be used to challenge rules laid down by both the host State and the home State which obstruct the provision of services.
What legal rules must an establishment follow?
Home-state control. Like what we talked about with Hallgrímur, a bank is under the supervision of its homestate. Plays into the principle of mutual recognition
What situations can we be dealing with freedom to provide services?
- Provider moves from one MS to another to provide services or trade (lawyer, accountant etc.9
- freedom to receive services
A recipient travels to receive services in another MS - healthcare, tourism, - neither the provider nor recipient moves - only the service moves, e.g. over the web or phone like in C Alpine investments
In the citezens rights dir there is a rule that is closly linked to a persons right to provide and receive services. What is it?
Right of departure, entry and residence! They are covered by this right. See e.g. C Oulane
C Oulane
A French service provider was arrested arriving in Rotterdam and deported for not presenting a valid identity card or passport.
The court found that detention order issued by the dutch authorities constituted an unjustified restriction on the freedom to provide services.
What kind of discrimination are we dealing with in regards to survices?
Directly, indirectly discriminatory and market accesses.
C Saager
Dennemeyer is a patent renewal service established in the UK that automatically reminds customers of when their patents in Germany are about to expire
The requirement of a professional licence to provide patent renewal services is prohibited by Article 51 and is disproportionate to the goal of consumer protection
C Alpine Inverstments
The Netherlands banned cold calling by investment funds
The applicant challenged the compatibility of the ban with Article 59 EEC Treaty (now Article 56 TFEU) for impeding the free movement of services
The Dutch government argued that the ban was justified by consumer protection and protecting the reputation of Dutch financial services industry
The ban on cold calling was justified and proportionate and was thus not prohibited by Article 59 EEC Treaty
Can you name some sensitive areas of services?
Healthcare and gambling
Is healthcare a part of the provision of right to recive services?
Yes, this first became apparent in C Luisi and Carbone which showed that EU nationals could in principle travel to another MS to receive medical treatment since this was a ‘service’.
There has been extensive case law on this fact resulting in provision in regulation 883/2004 and a dir on pationts rights to recive cross-border helath-care
Do people need prior authorisation to recive healthcare cross-borders?
In some instances, yes. For example, long term hospitalization in a public hospital might require prior authorization
What are the express derogations to the freedom to provide services?
Express derogations can be justified on the grounds of:
public policy,
public security
or public health.”
C Apothekerkammer
The CJEU upheld a rule excluding non-pharmacists from running pharmacies on public-health grounds
Can restrictions be justified on the rule of reason when it comes to services?
Yes, not direct discrimination tho.
This was e.g. stated in Saager and in Gouda. In the last one the court mentioned e.g. consumer protection and worker protection
Is there a public-service exception when it comes to services like there is with workers?
Yes, there is an equivalent derogation. Must be interpreted strictly.
CJEU has that none of the following jobs involve the exercise of authority:
Court translator,
Road traffic accident expert
Vheicle inspector
What are the the conditions that must be fulfilled for the Proportionality principle to be fulfilled?
they must be applied in a non-discriminatory manner;
they must be justified by imperative requirements in the general interest;
they must be suitable for securing the attainment of the objective which they pursue;
and they must not go beyond what is necessary in order to attain it
See for example Alpine Investments:
– although cold-calling was prohibited, other techniques for making contact with clients were still permitted.
The rules applied only to potential clients, not to existing clients and the prohibition was limited to the sector in which abuses had been found.
The Court added that just because other MS imposed less strict requirements to achieve the same objectives did not mean that the Dutch rules were disproportionate.
Do fundamental rights play apart in the freedom to provide services?
Yes, see for example C Carpenter. Deportation of a family member could only be justified if compatible with fundamental rights.
Deportation of a homemaker spouse can be regarded as a barrier to the freedom of movement to provide services under Article 51 TFEU
