The Freedom to Provide Services II - Legal Persons Flashcards
What is one of the most important principles when it comes to freedom of legal person to provide services?
Equal treatment in respect of initial access to the host State’s market and also once on that market and the removal of non-discriminatory restrictions to market access.
The court has been moving more towards market access
C Svensson and Gustafsson
Equal treatment
Swedish nationals resident in Luxembourg who were refused an tax discount of some sort on a building loan because they had borrowed the money from a (Belgian) institution which did not satisfy the requirement of being established in Luxembourg.
The Court said:
“[t]he rule in question entails discrimination based on the place of establishment. Such discrimination can only be justified on the general interest grounds referred to in Article [52 TFEU], to which Article [62 TFEU] refers, and which do not include economic aims.”
C Alpine Investments
a Dutch rule prohibiting cold-calling to sell financial services.
The Court said that the rule breached Article 56 TFEU since although non-discriminatory, it ‘directly affects access to the markets in services in the other Member States and is thus capable of hindering intra-Union trade in services’.
It was though found to be justified on the grounds of consumer protection and protecting the integrity of the Dutch financial system
Can you name examples of restrictions?
Authorization requirements would be the best example
In general, what laws would a service provider need to follow?
Home-state. The principle of home-state control, can be seen in E.g. CRD IV
In some cases, in sensitive sectors, the Court my disregard this principle.
How is reverse discrimination different in regards to services?
An increasing number of cases concern obstacles to the provision of services created by the home State.
You can take legal action against a home state. So reverse discrimination in kind of prohibited
C-405/98 Gourmet – the Court said that a national rule preventing undertakings established in State A from offering advertising space in their publications to potential advertisers established in other MS could be challenged in State A as contrary to Article 56 TFEU.
C-422/01 Skandia – Swedish rules which treated an occupational pension insurance policy taken out by a Swedish company with an out-of-state insurer less favourably than if the policy had been taken out with a Swedish company.
The Court said that ‘Article [56 TFEU] precludes the application of any national legislation which has the effect of making the provision of services between the Member States more difficult than the provision of services purely within one Member State’.
How dose gambling fall into the scope of freedom to provide services?
Its a sensitive field. It is considered services but states have different views on it. For example in Schindler the court mentioned the morality
Can you go over justifications and proportionality when it comes to gambling?
Nearly all rules considered justified on the grounds of:
preventing gambling and avoiding the lottery from becoming the source of private profit;
avoiding the risk of crime or fraud;
and avoiding the risk of incitement to spend, with damaging individual and social consequences.
The real balancing has been done through the proportionality review – with a wide margin of discretion for the MS.
A system on gambling must be known before hand and clear so MSs cant just make a decision on how they feel that day, see for exable unibet
What rules must a licensing system for games of chance follow according to C-49/16 Unibet?
It must follow objective, non-discriminatory criteria that are known in advance, preventing authorities from using their discretion arbitrarily.
When we are dealing with for example temporary work agencies?
posting of workers to another MS provided that it is temporary.
The right of access to the market includes the right to bring its workforce with it. as is stated in Rush Portuguese case.
There is a dir on posted workers
C Laval
Latvian company won a contract to refurbish a school in Sweden using its own Latvian workers who earned less than Swedish workers. The Swedish union wanted Laval to apply the Swedish collective agreements but Laval refused – in part because it was unclear how much they would have to pay its workers and it part because it imposed additional obligations such as paying an insurance company.
Laval brought action claiming this action was contrary to Article 56 TFEU and the Posting of Workers Directive.
The Court said that the host state could insist on applying its labour law rules to posted workers but only in respect of those matters exhaustively listed in Article 3(1) of the Directive, which e.g. did not cover the ‘special building supplement’ and other insurance premiums
The key to understanding the Court’s approach in Laval is the country-of-origin principle (principle of home State control).
since the Latvian workers are employed in Latvia and only work temporarily in Sweden, it is Latvian law that applies. An equal treatment approach requiring the Latvian employer to apply all of Swedish law to posted Latvian workers undermines Article 56 TFEU
This will change afte some time over to host state controll
Can an individual abuse the right of the freedom to provide services directing his activity entirely or principally towards another territory? and why would you do it?
No, in C-205/84 Commission v. Germany (insurance cases) – the Court said that a host State (State B) was allowed to take measures to prevent a person from directing his activity entirely or principally towards his territory, but doing so by services rather than establishment simply to avoid the professional rules of conduct which would be applicable to him had he been established in State B
Like in the judgement, he could be bypassing some rules
C omega
Banned lazer tag on the ground of public policy
What secondary legislation is the main legal instrument in the field of services?
The service Directive
Skoða að bæta meira um the service directive??
Skoða að bæta meira um the service directive??
