Services Flashcards
Omega Spielhallen
if goods are supplied in order to provide services, then it is FMS
Activity in Germany, place provides you with guns and you can shoot at people. Some complained thinking this is against human dignity. Question: is this a FMG or FMS, to allow this games were imported from other MS. Held: have to look at activity in question, were goods supplied for performing some activity? If goods are supplied to facilitate games which is the services, you apply FMS not goods.
Gebhard
Establishment = stable and contunoous
Services = temporary basis.
A one off activity will be services.
Van Binsbergen
Art 56 is directly effective.
People who direct most or all their services at the territory of a particular MS, but maintain their place of establishment outside that state in order to evade its professional rules, may be treated as being established within the MS and thus not covered by art 56 on services but art 49 on establishment instead.
In order to benefit from art 56 who do you need to be?
must have a place of establishment within the EU and, if a natural person, must possess the nationality of a MS.
If no right under EU law for company or EU national established outside the EU to provide temporary services within the EU.
A permanent economic base must first be established within MS and from that base the person may provide temporary services in other MS.
Luisi & Carbone
the treaty covers the situation of recipients as well as providers of services.
Although art 56 refers to the freedom to provide services, and art 57 to the rights of the provider of services, this case established that the treaty covers the situation of recipients as well as providers of services. Established that the freedom to provide services includes the freedom, for the recipients of services to go to another MS i order to receive a service there, without obstructions.
Cowan
Court found that a refusal, by the french to compensate a british tourist who had been attacked whilst in Paris constituted a restriction within the meaning of art 56.
Humbel
1) Definition of remuneration
2) Services which are financed mainly or entirely by public funds are not services. The State was not
seeking to engage in gainful activity, but was fulfilling its duties towards its own population in
the social, cultural and educational fields.
Court defined remuneration as consideration paid for activity and agreed between provider and recipient of activity:
1) consideration
2) Agreement
Held:
1) state education is not a service because it is funded from the public purse not by individuals,
2) it does not seek to get money and it discharges its duties
Wirth
Contrast Humbel
private education could be a service, so were providers of services within art 56 and 57.
They said that as long as the state ‘essentially’ funds public education, this will fall outside art 56. This suggests that if private payments amounts to more than half of the total funds received for the service, then these payment will be renunciation and art 56 will apply.
Kohll
Applicability of reasoning in Humbel has been narrowed in relation to cross-boarder health care.
Kohll appies for his daughter to have dental treatment in Germany. Under Luxemburg law, such treatment was free if provided in Luxenburg, but required prior authorisation from the insurance fund it it were provided outside the country. Authorisation was refused on the basis that the treatment was not urgent and could be provided within Luxemburg.
Held: such rules deter a person from approaching another MS, so hinters services
Watts
NHS patient on a waiting list for treatment in the UK travelled to another MS to receive the treatment instead. Was captured by Arts 56 and 57 even though the NHS is not an insurance scheme – but as the ‘service’ was not provided by the NHS, the CJEU did not rule on whether the NHS is a ‘service’.
Each case has to be assessed individually and the individual circumstances of a patient should properly be taken into account
Geraets Smits and Peerboms
two people, one has Parkinson disease, the other is in a coma, both funds are funded by people themselves. State finances the other part. Mixed funded involving individual and state. If you want treatment abroad you are not free to ask them for reimbursement. These two people thought no treatment in Netherlands, they wanted to go abroad.
Question: If they go abroad and receive treatment in another hospital then their insurance fund has to pay for it, is this a service? If they pay for it themselves, this is a service, but what if requirement is that their sickness fund will pay. Held:
1) MS could refuse prior authorisation if they could show that the same or equally effective treatment could be obtained without undue delay in the home Member State.
2) MS cannot say that treatment is “normal”, it depends on international medical science, so obligation for them to look at interantional law to see what is normal.
Müller-Fauré
this is about non hospital treatment, can you go somewhere else and get treatment and then seek reimbursement? Held: yes not just about hospital treatments but non hospital treatments.
Watts
In NHS it is taxed by tax payers money, can someone registered with NHS go abroad and then ask NHS to pay for it? Held: yes this is service, if someone receives treatment abroad this is also a service.
Each case has to be assessed individually and the individual circumstances of a patient should properly be taken into account
Schindler
Where goods and services are provided at the same time, the distinction is made on what the final purpose of engaging in the business, if it is the sale of goods then FMGs apply but if goods are supplied for a service, this will be a service
court found that buying a lottery ticket fell within the freemovement of services, not goods because the phyical ticket was purely ancillary to the real substance of the tranaction, which was the chance of winning a prize. The custom paid in order to participate in the lottery - a service - not in order to own a piece of paper.
Omega-Spielhallen
Where goods and services are provided at the same time, the distinction is made on what the final purpose of engaging in the business, if it is the sale of goods then FMGs apply but if goods are supplied for a service, this will be a service.
Gebhard
establishment takes a more stable and continuous form, services provided on a temporary basis.
Van Binsbergen
If most acitivity takes place where establishment is not, it could be FME rather than services, accepted that this would be quite rare for court to provide.
Humbel
a. state provided an education, provided without consideration was excluded from scope of art 56. To provide remunication there must be some consideration agreed between the provider and the recipient of the service. Not necessary that this consideration be from the recipient, can be paid by someone else.
Bond van Adverteerders
treaty also includes freedom to receive services
Alpine Investment
Neither provider nor recipient is moving, but the service crosses boarder
Laval
art 56 is horizontally directive effective
FDC
Spanish rule that film distributors granted a licence to dub foreign films on condition that they sell Spanish film at the same time, this gave advantage to Spanish films. Spain tried to justify this on cultural policy, this is not provided for in the treaty so should have been ORPI. Court refused to accept this because it was directly discriminative.
Sjoberg
Sweden imposed stricter penalties on promoting online gambling other MS compared to gambling on its own territory.
Commission v Germany (Insurance cases)
Germany required insurance company wishing to provide insurance on its territory to be both authorised and established in Germany. Court found: this increases costs and even though consumer protection justification was acceptable, it was acceptable and proportionate only as far as authorisation was concerned. The establishement requirement was unnecessary.
Säger
Gambelli
Any measure likely to hinder free movement of services violates the treaty. Does not need to be discriminatory
Alpine Investment, Schindler, Commission Italy (Insurance) –
in these cases the rules applied without disctinction between domestic and foreign providers, however, they made the reality more difficult for foreginers so breached art 56.
Kohll
Any restriction on receving services abroad can caught by art 56 and justifications such as social security (MS does not want to pay random sums of money is acceptable) towether with justificatins of public health. Here, it was not acceptable because as far as court was concerned, the payment would have been at the same rate. Another justification was that we do not know if the dentist services in another MS are of the same quality. This was rejected because courts said the professin was harmonised. Kohll left two questions unanswered:
1) Whether hospital treatments will be covered?
2) Benefits in kind would make a different?
Geraets-Smits & Peerbooms
– two persons travelling to another MS to receive treatment which they could not have recived in Netherlands, to reimburse the costs from their healthcare fund, they needed prior authorisation which can only be granted if it was considered normal and necessary. The court found restriction of prior authorisationw as a retriction because it makes it more difficult to receive treatment abroad. Question then turned to balancing the justifications against free movements.
Müller-Fauré
Non hospital treatment will be covered as well. Highlights the cost will be kept at home MS rate.
Watts
court did not rule whether serives provided by NHS are services and instead it concentrated that Mrs Watts received treatment abroad, paid for it herself and then sought reimbursement frm NHS. Up to this point, all elements of service were satisfied, therefore EU law applied. It was irrelevant that she subsequently sought reimbursement from NHS and NHs is tax funded. Similariliy, justifications could be invoked bt have tohbalance interests of state and Mrs Watts.
Each case has to be assessed individually and the individual circumstances of a patient should properly be taken into account
Regione Sardegna
court refused to extend ground of public health to cover environmental protection.
Sjoberg
public policy might include preventing people from gambling. But court did not like the idea of it being discriminatory
Geraets-Smits & Peerbooms
demonstrate willingness to interprete public health sometimes to take into accout considerations not raised before.
Grogan
Medical activities fall within the scope.
where a private organisation tried to stop students’ unions in Ireland from publicising the addresses of British abortion clinics (abortion is illegal under Irish law) to university students. The European Court held in favour of the organization on facts (the Students’ Unions were not acting on behalf of the British abortion clinics but simply to help students, therefore could not rely on the right to advertise the services provided in one of the Member States in other EU countries
Jany
prostitution is considered to be a service because it is not prohibited in all MS.
Schindler
lotteries were “services”, it is not goods . U.K. could restrict or even prohibit lotteries from other EEC Member States, provided those restrictions were not discriminatory on the basis of nationality.
Josemans
selling cannabis in marijuana cafes
Marijuana cafas can sell drugs but only for those who live there. Someone tried to challenge that prohibition on selling drugs only to residents affects their rights to provide services because it affects how much they can sell to foreigners as well. This is probably not worse than prostitution. However, court held that point in excluding this because in no MS this is a legal activity, all MS think that marketing drugs are unlawful. Therefore, more of margin for MS than in other MS.
Luisi and Carbone
1) Service recipient moves even though art 56 does not directly recognise this, there is recognition of right to receive service
ladies went abroad as tourists and seek medical treatment were not happy with Italian rule that you can only travel with a certain amount of money. Court held this was restriction on their right to receive services.
