W6 - Freedom of Establishment Flashcards
Establishment v service
Art 49 - freedom of establishment on a permanent basis under the same conditions as apply to host state nationals (directly effective - Reyners v Belguim)
Art 56 - freedom to provide service temporarily (directly effective - Van Binsbergen; commercial motive required - Grogan)
Differentiated- ‘stable and continuous basis’ (Gebhard)
Situations where Art 56 applies
- when the provider of services goes to another MS to provide services
- when the provider of services moves to another MS to provide services to national of his own MS
- when no inds actually move but services are provides by eg phone (Alpine Investments)
- when an EU citizen or business providing services in a host state wishes to employ workers who are not themselves EU citizens (aka right to provide services includes a right to use one’s own workforce - VanderElst)
- when nationals of one MS travel to another MS and receive services there
eg
- inds have the right to receive medical services and tourism services in other MSs -Luisi; Carbone)
- protection of persons from harm in host state and right to compensation on same terms as nationals (Cowan)
- applies to state medical services funded through insurance schemes aka patient cannot be treated in home state without undue delay then can receive treatment in another MS at home state’s expense (Watts)
Equal treatment for self-employed
Art 49 – freedom of establishment includes the right to undertake self-employed business ‘under the conditions laid down for its own nationals by the law of the country where such establishment is effected’
Art 57 – person providing services may do so ‘under the same conditions as are imposed by that state on its own nationals’
=> provide for equal treatment and prohibit MSs imposing restrictions on the freedom in question
Rights of companies
Art 54- art 49 and 56 cover companies and firms
Regulation 2157/2001 - allows businesses with operations in more than one MS to incorporate as one ‘European Company’, rather than forming a different company in each MS
Centros - once a company is established in a MS all its branches will be automatically covered by art 49 and any restriction on the right to form branches is considered a breach of art 49
Establishment: Distinctly and indistinctly applicable measures
Art 49 bans both distinctly and indistinctly applicable measures that actually hinder free movement
- Distinctly applicable (Reyners v Belgium)
- Indistinctly applicable: indirectly discriminatory - Commission v Italy; non-discriminatory - Sodemare
Inds able to rely on art 49 in home state - usually non-discriminatory (Marks and Spencer pls)
Services: distinctly and indistinctly applicable measures
Art 56 bans both distinctly and indistinctly applicable measures that actually hinder free movement
Indirectly discriminatory (Van Binsbergen); Non-discriminatory (Sager)
Inds able to rely on art 56 in home state (non-discriminatory eg Alpine Investments)
Secondary leg
Regulation 492/2011 - does not cover the self-employed and has no equivalent for self-employed people
Directive 2004/38 - ‘all union citizens’ in a host state ‘shall enjoy equal treatment’ to nationals of that state, but no specific provision is made
=> migrant workers in host states have far more specific protection in terms of equal treatment legislation than do self-employed people exercising free movement rights
Justifications: Distinctly applicable restrictions
Art 51: activities connected with the exercise of official authority (narrow interpretation - Reyners v Belgium)
Art 52(1): public policy (if genuine and sufficiently serious threat to a fundamental interest of society - Omega), public security, public health
Art 62 - applies arts 51 and 52 to services
Justifications: Indistinctly applicable measures
Treaty exceptions and Cassis-style approach
Gebhard (establishment): state could defend measures that actually hinder freedom of establishment if:
- non-discriminatory (indistinctly applicable)
- justified by imperative requirements in the general interest
- suitable for securing the attainment of the objective they pursue
- must not go beyond what is necessary
Alpine Investments (Services): same approach as above
Qualifications
Directive 2005/36 (‘Qualifications Directive’) - sets out a framework for the mutual recognition of most professional and trade qualifications
Differences between the qualifications => proportionate measures may be imposed to compensate for any gaps
Services Directive (2006/123)
Art 2(1) - applies to services provided by providers (inds and companies) established in a MS
Art 4(1) - defines ‘service’ as ‘any self-employed economic activity, normally provided for remuneration, as referred to in art 57 of the treaty’
=> service provided for remuneration falls within its scope unless it comes within one of the exclusions (art 2(2) and 2(3))
Services Directive - Establishment
Arts 9-15
Art 14: Prohibited requirements => banned outright
Art 9: authorisation schemes
Art 15(2): Requirements to be evaluated; may be justified if:
- non-discriminatory
- justified by overriding reason in public interest (art 4(8))
- proportionate
Services Directive - Services
Art 16(2): Prohibited requirements => prohibited outright
Art 16(1): Any other restriction on service provider. Justifiable if:
- non-discriminatory
- justified for reasons of public policy, public security, public health or protection of the enviro
- proportionate
BUT derogations in art 17 which limit scope of the directive
Definition of what constitutes a restriction on free movement
National measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the treaty
Limits of art 49 and 56
Viacom Outdoor - tax (which applied equally) was modest in amount in relation to services provided and => did not constitute a restriction on free movement
