Justifying restrictions Flashcards
Omega
Piblic policy derogation may only be relied on if there is a genuine and sufficiently serious threat to the fundamental interests of society
Kohl
3 Grounds restrictions to the exercise of freedom to provide services could be justified under public health
1) The possible risk of seriously undermining a social security system’s financial balance
2) the need to maintain a blanched medical and hospital service to all
3) The maintenance of treatment capacity/ medical competence essential for public health (Article 52 Public Health derogation)
Whilst Luxembourg law did not deprive nationals the possibility to approach a provider of service in another MS, they deterred them from doing so (by requesting prior authorisation)
ECJ: amounts to a restriction to the freedom to provide services .
Health derogations considered, but no evidence that it is affecting the health system
Sager v Dennemeyer
4 grounds imperative reasons can be used to justify restrictions to freedom to provide services
1) the restriction apply to all person (indistinctly applicable)
2) Justified by imperative reasons in the general interest
3) they are objectively necessary as to ensure compliance with professional rules and to protect the recipient of services
Schindler
British Legilsation was not found to be in breach of Article 56 as considerations such as the high risk of fraud and the general tendency to restrict gambling to protect the customer made the law justifiable
Deliege
ECJ upheld the rules of the European Judo Federation. The court accepted that selection rules are necessary as such as limitation is inherently in the conduct of an international high level sport
Commission v Germany
ECJ 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 member state in which it is providing the service is justified by an imperative reason (consider the dual burden)
Guiot
Director already has to pay tax in Luxembourg, but Belgian authorities argued that he should also pay in Belgium (where his employees have temporarily been sent to)
ECJ: this is an unjustified restriction
Geraets- Smits v Stitching
It was an economic activity but set out 3 grounds to justify restrictions prohibited by Article56
R(watts) v Bedford Primary Care trust
Rights under Article 56 had to be balanced against the considerations relating to the hospital budgetary and human capacities with the needs of the patient
