W6 Freedoms: Services and Establishment Flashcards
1
Q
Article 56 TFEU
A
Freedom to provide services
2
Q
Which article establishes the freedom to provide services?
A
Art 56 TFEU
3
Q
What is a service?
A
Art 57: Anything provided for renumeration that isn’t a good, capital, or person, including industrial, commercial, craft, or professional work.
In practice: A service is temporary by nature
4
Q
Which services have special exceptions?
A
Transport and banking
Auth: Art 58
5
Q
Where are the statutory justifications for Art 56 exceptions found?
A
Art 62 TFEU
6
Q
Art 62 TFEU
A
Justifications for exceptions for freedom to provide services
7
Q
What are the Art 62 justifications for restrictions on services?
A
Public policy
Public security
Public health
Exercise of official authority
8
Q
Healthcare Directive 2011/24
A
Governs movement for the purpose of receiving healthcare
9
Q
Information Society Directive 2000/31 and 2015/1535
A
Governs e-commerce service providers (“Information Society Services”) the right not to be restricted
10
Q
Governs e-commerce service providers the right not to be restricted
A
Information Society Directive 2000/31 and 2015/1535
11
Q
Governs movement for the purpose of receiving healthcare
A
Healthcare Directive 2011/24
12
Q
Digital Markets Act
A
Additional restrictions on providers of e-commerce platforms
13
Q
Digital Services Act
A
Amends Information Society Directive with additional restrictions/regulations on digital service providers
14
Q
How to determine if a composite service can be classified as an Information Society Service?
A
1) Can the offline and online elements be separated?
2) Is the platform deciding on essential aspects of the service, e.g. price?
15
Q
Elite Taxi (UBER)
A
Facts: Spanish court requested a preliminary ruling. Ruled that Uber services qualified as transport rather than e-commerce, allowing more MS discretion. Uber had enough control over the physical aspect of the service (taxi ride) to put this into the transport remit.
Significance: How to determine composite services as falling under the Information Society Directive
16
Q
AirBnB Ireland
A
Facts: Criminal proceedings launched in France against AirBnb Ireland for not holding a real estate licence. Ruled to be an information society service since AirBnb does not set prices, lettors were able to set their own T&Cs, etc and as such any restrictions must be notified to the Commission. As France had not notified the commission, the requirement was not enforceable.
Significance: How to determine composite services falling under the Information Society Directive (cf Elite Taxi Uber). Failure to notify restrictions on ISS to Commission makes them unenforceable.
17
Q
Any restrictions on the freedom to provide services must be __________
A
Notified to the European Commission (authority: Art 15.7)
18
Q
Luisi & Carbone
A
Facts: Two Italian nationals residing in Italy bought more foreign currency than allowed by Italian law and were issued fines. They challenged the fines as they had purchased the currency for tourism in other MS and one had also travelled to Germany for a medical procedure in that time, so the Italian law impeded free movement of capital and free movement of services. Italian court made a preliminary ruling reference. Italian law was deemed non-compliant - they could impose controls to verify that cash was used for authorized movements of capital, but could not set a limit on amount for authorized movements.
Significance: Free movement of services implies the right to carry necessary funds to pay for such services. Example of freedom of capital and freedom of services overlapping.
19
Q
True or false: When freedom to provide services overlaps with another freedom in a case, freedom to provide services takes precedence
A
False. Can apply the law of multiple freedoms to the same case, e.g. Luisi & Carbone.
20
Q
Visser
A
Facts: Request from NL Supreme Court for preliminary ruling. Challenge to a zoning plan designating certain zones as being exclusively reserved for retail trade in bulky goods, as an owner of one of the premises wanted to lease to shoe/clothing shops. Note that there was not a strong inter-MS element here - customers may come from other MS, and the court focussed on harmonization as an objective. Court ruled that EU law was engaged, and retail of goods is a service, but the reasoning for the zoning plan (maintain viability of city centre) could be a justification for ORPI if all justification criteria are satisfied.
Significance: Retail sale of goods is a service, so restricting opening hours affects both freedom to provide goods and freedom to provide services.
21
Q
How to determine establishment vs services
A
Can look at infrastructure: did they move house, did they set up a branch? Authority: Commission v Germany
Can look at duration, regularity, periodity, and continuity. Authority: Gebhard
22
Q
Commission v Germany (Insurance) (services/establishment)
A
Facts: Insurance undertaking of another MS maintaining a permanent presence in the host state was not a branch/agency, only an office managed by the undertaking’s staff. Ruled to fall within Art 49 as still demonstrated permanency.
Significance: Existence of infrastructure, such as setting up premises or moving house, is an indication something has the permanency of establishment over the impermanence of services
23
Q
Gebhard
A
Facts: German lawyer working in Italy for 10 years was penalised for advertising his services as that of a lawyer. Question for court: services or establishment?
Significance: 10 years was found to be long enough to be establishment. Established the duration, regularity, periodity, and continuity test for establishment vs services. Also ruled that Art 49 doesn’t interfere with national requirements (such as use of professional title), but those requirements must be non-discriminatory, justified by ORPI, and suitable/proportionate to their objective.
24
Q
How is a cross-border element engaged re: freedom to provide services?
A
Even if no person moves, if the service crosses a border, then there is a cross-border element.
Additionally, if either the service provider or recipient crosses a border, then there is a cross-border element.
25
How does the Art 57 requirement for renumeration apply to Information Society Services run off of ad cents?
The service recipient does not need to be the one paying. As long as someone is paid, this criteria is satisfied. Authority: Deliege
26
Deliege
Facts: Belgian Judo competitor challenged the Belgian Judo Federation selection service for impeding her career and freedom to provide services. Federation argued there was no cross border element to the selection criteria. Court held that even if selection occurred purely internally, if athletes travel to competitions in other MS then a cross-border element is engaged.
Significance: Wide interpretation of both cross border element and requirement for renumeration.
27
Laval
Facts: Swedish trade union imposed a boycott on a Swedish construction company who was bringing in cheaper workers from other MS. Was ruled a restriction on Art 56.
Significance: Example of Art 56 applications
28
Which Art 56 restrictions can only be justified with statutory justifications?
Restrictions which restrict freedom to provide services on grounds of nationality, or other distinctly applicable measures
29
Which Art 56 restrictions can use case law justifications?
Restrictions which are indistinctly applicable or introduce no formal distinctions/do not protect nationals but nevertheless restrict commercial freedom.
30
Calfa
Facts: Request for preliminary ruling from Greek court. An Italian national was found guilty for drug-related offences under Greek law (while visiting as a tourist) and expelled for life from Greece. Challenge as to whether this impeded her right to movement and right to provide services, as this measure would not be taken against a Greek national guilty of the same offence (and as such was discriminatory on grounds of nationality). Court ruled that criminal convictions can only be used as a public policy justification if there was a sufficiently serious threat, and expulsion cannot be automatic.
Significance: Example of Art 56 restriction on grounds of nationality and narrow interpretation of public policy justification.
31
Van Binsbergen
Facts: Dutch qualified lawyer representing a Dutch client moved to Belgium and was told he could not continue to represent his client. Dutch rules said only lawyers established in NL had rights of audience.
Significance: Example of distinctly applicable measure. Requirements on providing services are compatible with EU law if equally applicable to host state nationals, objectively justified with ORPI, and proportionate.
32
Sager v Dennemeyer
Facts: Legal services in Germany require German legal qualifications, must have passed German exams. British company was advising German company re: patent re-registration and didn't have any German-qualified lawyers, and licences weren't available for patent renewal services. British company argued the restriction was a breach of Art 56
Significance: Overriding public interest requirements can be used as justifications for any indistinctly applicable measures where the public interest isn't economic. Also an early example of the court favouring the market access test: any restriction which may impede a service provider from another MS providing them in the host state is unlawful under Art 56.
33
Alpine Investments
Facts: Dutch regulation preventing Dutch companies from cold-calling other MS. Not directly discriminatory, as it's regardless of company owner. Not indirectly applicable, since not prioritising Dutch companies. Was justified under protection of reputation of Dutch market as an overriding public interest.
Significance: Example of indistinctly applicable regulation that is not protectionist but still infringing
34
ORPI
Overriding public interest - case law justifications for Art 56 restrictions. Can be used for indistinctly applicable restrictions.
35
Art 49 TFEU
Freedom of establishment
36
Freedom of establishment
Art 49 TFEU
37
True or false: freedom of establishment only applies to natural persons?
False. Also applies to legal persons. Authority: Art 54 TFEU
38
Art 54 TFEU
Companies or firms with a registered office/central administration/principal place of business in the EU have the same rights re: freedom of establishment as natural persons.
39
Art 54 TFEU does not apply to ____________
Non-profits
40
Daily Mail
Facts: English tabloid tried to move to NL for tax purposes but maintain English PLC status. Did not engage Art 49/54 - would have triggered a liquidating event under English tax law. Art 49 not a defence as they were looking to move primary establishment.
Significance: Art 49 only engaged when establishing (for first time) or moving a secondary location.
41
Klopp v Paris Bar Association
Facts: German qualified lawyer applied to Paris Bar, having passed French exams, wanting to also maintain his German qualification and office. He was rejected from the Paris Bar, as they required a lawyer to only have one established chambers and that chambers must be in France. Was contradictory, since the Paris Bar routinely allowed French lawyers to apply for membership of foreign bars. French court requested a preliminary ruling. Bar Association was found to be infringing his rights to freedom of establishment in a manner which was distinctly applicable/discriminatory.
Significance: Freedom of establishment includes not being forced to give up other premises.
42
Centros
Facts: PLC in England but all business performed in Denmark. Could Danish law restrict the PLC in England? Denmark said if all business is in Denmark, then primary establishment is in Denmark. Court disagreed, ruled unlawful under Art 49.
Significance: Primary establishment is not based on where majority of business is performed.
43
What are a legal/natural persons rights under Art 49?
Right to enter, exit, and reside in any MS for purposes of establishment (legal persons have additional hoops re: tax rules)
44
Reyners v Belgium
Facts: Dutch lawyer working in Belgium. Question was whether providing legal services were connected to the exercise of official authority and thus fell under the Art 51 exception (both the entire profession and specific activities lawyers may or may not carry out). Court ruled the exception did not apply to legal services.
Significance: Direct discrimination can be justified with treaty justifications. Official authority exception is very narrowly interpreted: restricted to activities involving a direct and specific connection with exercise of official authority.
45
Vlassopoulou
Facts: Greek national wanted to practice law in Germany, hadn't taken German exams. Argued under Art 49 that she had the requisite knowledge, evidencable from PhD and work experience. 2 exam requirement, while justifiable under ORPI, failed on proportionality. Exam could only be required for any gap in knowledge she couldn't evidence.
Significance: Authority for requirement of mutual recognition of qualifications
46
What qualifies as a restriction under Art 56?
Insignificant and non-discriminatory restrictions do not fall under Art 56 as they are de minimis. (e.g. Viacom Outdoor)
Significant extra costs may impede market access and be restrictions. (e.g. Car Insurance)
Compliance with host state's rules is not a restriction (e.g. Lawyer's Fees)
Host state rules should not depricve providers of access to the market under conditions of normal and effective competition (e.g. Konstantinides)
47
Viacom Outdoor v Giotto
Facts: Real estate company established in France had a contract with Italian company for advertising. French company refused to re-imburse Italian company for municipal advertising tax in Italy (amount = 227 euro). French company argued the tax infringed freedom to provide services. The tax was indistinctly applied regardless of provider's place of establishment, and the tax was so low compared to the value of the service that it does not prohibit or impede the advertising services.
Significance: Example of a de minimis exception
48
Commission v Italy (Car Insurance)
Facts: Italian law required insurance companies to offer compulsory car insurance to anyone who applied. Rates and contract terms were mostly pre-determined by law. This was found to dissuade insurance operators in other MS from offering insurance in Italy, since the laws resulted in excessive costs for the operators. Court said it failed the market access test, but could be justified if proportionate.
Significance: Competition within markets is very important to the EU. Example of high fees being a restriction to freedom to provide services.
49
Commission v Italy (Lawyer's Fees)
Facts: Italian law set max lawyer fees (with rules for exceptional circumstances) set by national bar council and approved by the Italian government. Commission brought action against Italy for impeding right to provide services, as it makes the Italian market unattractive to lawyers from other MS. Commission was unable to demonstrate that it impeded market access, as the Italian law around the max fee was sufficiently flexible and was properly justified.
Significance: Compliance with host state's rules is not a restriction, provided those rules don't impede market access. Rules don't impede market access if sufficiently flexible and non-discriminatory.
50
Konstantinides
Facts: A Greek doctor being prosecuted in Germany for professional misconduct. He was mainly established in Greece, but routinely visited Germany to perform procedures. A patient disputed a bill for a procedure he performed, giving rise to professional misconduct and unprofessional advertising allegations. Were the German advertising rules infringing free movement for services? Probably but non-discriminatory so could be justified.
Significance: Example of situation with ORPI justifications.
51
What are the treaty justifications for Art 56 restrictions?
Art 52: public policy, public security, public health
Art 51: exercise of public authority
Notes: strictly interpreted. Art 52 favoured over Art 51. Does not extend to measures pursuing economic aims.
52
Jany
Facts: Czech and Polish women working as prostitutes in NL. They paid rent and taxes. Court ruled that it qualified as self-employment and fell under Art 49 TFEU.
Significance: Court does not substitute its assessment for that of an MS where an allegedly immoral activity is practiced legally.
53
Josemans
Facts: Owner of a NL coffee shop had his premises closed for allowing in 2 people who were non-NL residents, against local municipal law. Shop owner appealed as it was discrimination on grounds of nationality. Court found that it was a restriction on provision of services, was directly discriminatory, so needed a treaty justification rather than ORPI. Justification was combating drug tourism, relating to public health and safety, so could be a legitimate justification. Succeeded on proportionality as well.
Significance: Freedoms do not apply to drug tourism
54
What are the requirements for authorization schemes re: freedom of establishment?
1) Schemes must not discriminate directly or indirectly
2) Scheme is justified by ORPI
3) Scheme's objective cannot be attained by a less restrictive measure (i.e. proportionality)
4) Criteria for authorization must be clear, unambiguous, objective, made public in advance, transparent, and accessible.
55
Society for Protection of Unborn Children v Grogan
Facts: A student union in Ireland (where abortion is illegal) were handing out leaflets about travelling to the UK for lawful abortions.
Significance: Fell outside the scope of Art 57 as the students were not being renumerated.
56
Directive 2005/36
Directive consolidating harmonising legislation centred on mutual recognition of qualifications in regulated professions.
Applies to all EU citizens, employed or self-employed, looking to practice in another MS.
Aims to liberalise provision of services by simplifying mutual recognition procedures.
57
Directive consolidating harmonising legislation centred on mutual recognition of qualifications in regulated professions.
Applies to all EU citizens, employed or self-employed, looking to practice in another MS.
Aims to liberalise provision of services by simplifying mutual recognition procedures.
Directive 2005/36
58
Facts: Spanish court requested a preliminary ruling. Ruled that Uber services qualified as transport rather than e-commerce, allowing more MS discretion. Uber had enough control over the physical aspect of the service (taxi ride) to put this into the transport remit.
Significance: How to determine composite services as falling under the Information Society Directive
Elite Taxi (UBER)
59
Facts: Criminal proceedings launched in France against AirBnb Ireland for not holding a real estate licence. Ruled to be an information society service since AirBnb does not set prices, lettors were able to set their own T&Cs, etc and as such any restrictions must be notified to the Commission. As France had not notified the commission, the requirement was not enforceable.
Significance: How to determine composite services falling under the Information Society Directive (cf Elite Taxi Uber). Failure to notify restrictions on ISS to Commission makes them unenforceable.
AirBnB Ireland
60
Facts: Two Italian nationals residing in Italy bought more foreign currency than allowed by Italian law and were issued fines. They challenged the fines as they had purchased the currency for tourism in other MS and one had also travelled to Germany for a medical procedure in that time, so the Italian law impeded free movement of capital and free movement of services. Italian court made a preliminary ruling reference. Italian law was deemed non-compliant - they could impose controls to verify that cash was used for authorized movements of capital, but could not set a limit on amount for authorized movements.
Significance: Free movement of services implies the right to carry necessary funds to pay for such services. Example of freedom of capital and freedom of services overlapping.
Luisi & Carbone
61
Facts: Request from NL Supreme Court for preliminary ruling. Challenge to a zoning plan designating certain zones as being exclusively reserved for retail trade in bulky goods, as an owner of one of the premises wanted to lease to shoe/clothing shops. Note that there was not a strong inter-MS element here - customers may come from other MS, and the court focussed on harmonization as an objective. Court ruled that EU law was engaged, and retail of goods is a service, but the reasoning for the zoning plan (maintain viability of city centre) could be a justification for ORPI if all justification criteria are satisfied.
Significance: Retail sale of goods is a service, so restricting opening hours affects both freedom to provide goods and freedom to provide services.
Visser
62
Facts: Insurance undertaking of another MS maintaining a permanent presence in the host state was not a branch/agency, only an office managed by the undertaking's staff. Ruled to fall within Art 49 as still demonstrated permanency.
Significance: Existence of infrastructure, such as setting up premises or moving house, is an indication something has the permanency of establishment over the impermanence of services
Commission v Germany (Insurance) (services/establishment)
63
Facts: German lawyer working in Italy for 10 years was penalised for advertising his services as that of a lawyer. Question for court: services or establishment?
Significance: 10 years was found to be long enough to be establishment. Established the duration, regularity, periodity, and continuity test for establishment vs services. Also ruled that Art 49 doesn't interfere with national requirements (such as use of professional title), but those requirements must be non-discriminatory, justified by ORPI, and suitable/proportionate to their objective.
Gebhard
64
Facts: Belgian Judo competitor challenged the Belgian Judo Federation selection service for impeding her career and freedom to provide services. Federation argued there was no cross border element to the selection criteria. Court held that even if selection occurred purely internally, if athletes travel to competitions in other MS then a cross-border element is engaged.
Significance: Wide interpretation of both cross border element and requirement for renumeration.
Deliege
65
Facts: Swedish trade union imposed a boycott on a Swedish construction company who was bringing in cheaper workers from other MS. Was ruled a restriction on Art 56.
Significance: Example of Art 56 applications
Laval
66
Facts: Request for preliminary ruling from Greek court. An Italian national was found guilty for drug-related offences under Greek law (while visiting as a tourist) and expelled for life from Greece. Challenge as to whether this impeded her right to movement and right to provide services, as this measure would not be taken against a Greek national guilty of the same offence (and as such was discriminatory on grounds of nationality). Court ruled that criminal convictions can only be used as a public policy justification if there was a sufficiently serious threat, and expulsion cannot be automatic.
Significance: Example of Art 56 restriction on grounds of nationality and narrow interpretation of public policy justification.
Calfa
67
Facts: Dutch qualified lawyer representing a Dutch client moved to Belgium and was told he could not continue to represent his client. Dutch rules said only lawyers established in NL had rights of audience.
Significance: Example of distinctly applicable measure. Requirements on providing services are compatible with EU law if equally applicable to host state nationals, objectively justified with ORPI, and proportionate.
Van Binsbergen
68
Facts: Legal services in Germany require German legal qualifications, must have passed German exams. British company was advising German company re: patent re-registration and didn't have any German-qualified lawyers, and licences weren't available for patent renewal services. British company argued the restriction was a breach of Art 56
Significance: Overriding public interest requirements can be used as justifications for any indistinctly applicable measures where the public interest isn't economic. Also an early example of the court favouring the market access test: any restriction which may impede a service provider from another MS providing them in the host state is unlawful under Art 56.
Sager v Dennemeyer
69
Facts: Dutch regulation preventing Dutch companies from cold-calling other MS. Not directly discriminatory, as it's regardless of company owner. Not indirectly applicable, since not prioritising Dutch companies. Was justified under protection of reputation of Dutch market as an overriding public interest.
Significance: Example of indistinctly applicable regulation that is not protectionist but still infringing
Alpine Investments
70
Facts: English tabloid tried to move to NL for tax purposes but maintain English PLC status. Did not engage Art 49/54 - would have triggered a liquidating event under English tax law. Art 49 not a defence as they were looking to move primary establishment.
Significance: Art 49 only engaged when establishing (for first time) or moving a secondary location.
Daily Mail
71
Facts: German qualified lawyer applied to Paris Bar, having passed French exams, wanting to also maintain his German qualification and office. He was rejected from the Paris Bar, as they required a lawyer to only have one established chambers and that chambers must be in France. Was contradictory, since the Paris Bar routinely allowed French lawyers to apply for membership of foreign bars. French court requested a preliminary ruling. Bar Association was found to be infringing his rights to freedom of establishment in a manner which was distinctly applicable/discriminatory.
Significance: Freedom of establishment includes not being forced to give up other premises.
Klopp v Paris Bar Association
72
Facts: PLC in England but all business performed in Denmark. Could Danish law restrict the PLC in England? Denmark said if all business is in Denmark, then primary establishment is in Denmark. Court disagreed, ruled unlawful under Art 49.
Significance: Primary establishment is not based on where majority of business is performed.
Centros
73
Facts: Dutch lawyer working in Belgium. Question was whether providing legal services were connected to the exercise of official authority and thus fell under the Art 51 exception (both the entire profession and specific activities lawyers may or may not carry out). Court ruled the exception did not apply to legal services.
Significance: Direct discrimination can be justified with treaty justifications. Official authority exception is very narrowly interpreted: restricted to activities involving a direct and specific connection with exercise of official authority.
Reyners v Belgium
74
Facts: Greek national wanted to practice law in Germany, hadn't taken German exams. Argued under Art 49 that she had the requisite knowledge, evidencable from PhD and work experience. 2 exam requirement, while justifiable under ORPI, failed on proportionality. Exam could only be required for any gap in knowledge she couldn't evidence.
Significance: Authority for requirement of mutual recognition of qualifications
Vlassopoulou
75
Facts: Real estate company established in France had a contract with Italian company for advertising. French company refused to re-imburse Italian company for municipal advertising tax in Italy (amount = 227 euro). French company argued the tax infringed freedom to provide services. The tax was indistinctly applied regardless of provider's place of establishment, and the tax was so low compared to the value of the service that it does not prohibit or impede the advertising services.
Significance: Example of a de minimis exception
Viacom Outdoor v Giotto
76
Facts: Italian law required insurance companies to offer compulsory car insurance to anyone who applied. Rates and contract terms were mostly pre-determined by law. This was found to dissuade insurance operators in other MS from offering insurance in Italy, since the laws resulted in excessive costs for the operators. Court said it failed the market access test, but could be justified if proportionate.
Significance: Competition within markets is very important to the EU. Example of high fees being a restriction to freedom to provide services.
Commission v Italy (Car Insurance)
77
Facts: Italian law set max lawyer fees (with rules for exceptional circumstances) set by national bar council and approved by the Italian government. Commission brought action against Italy for impeding right to provide services, as it makes the Italian market unattractive to lawyers from other MS. Commission was unable to demonstrate that it impeded market access, as the Italian law around the max fee was sufficiently flexible and was properly justified.
Significance: Compliance with host state's rules is not a restriction, provided those rules don't impede market access. Rules don't impede market access if sufficiently flexible and non-discriminatory.
Commission v Italy (Lawyer's Fees)
78
Facts: A Greek doctor being prosecuted in Germany for professional misconduct. He was mainly established in Greece, but routinely visited Germany to perform procedures. A patient disputed a bill for a procedure he performed, giving rise to professional misconduct and unprofessional advertising allegations. Were the German advertising rules infringing free movement for services? Probably but non-discriminatory so could be justified.
Significance: Example of situation with ORPI justifications.
Konstantinides
79
Facts: Czech and Polish women working as prostitutes in NL. They paid rent and taxes. Court ruled that it qualified as self-employment and fell under Art 49 TFEU.
Significance: Court does not substitute its assessment for that of an MS where an allegedly immoral activity is practiced legally.
Jany
80
Facts: Owner of a NL coffee shop had his premises closed for allowing in 2 people who were non-NL residents, against local municipal law. Shop owner appealed as it was discrimination on grounds of nationality. Court found that it was a restriction on provision of services, was directly discriminatory, so needed a treaty justification rather than ORPI. Justification was combating drug tourism, relating to public health and safety, so could be a legitimate justification. Succeeded on proportionality as well.
Significance: Freedoms do not apply to drug tourism
Josemans
81
Facts: A student union in Ireland (where abortion is illegal) were handing out leaflets about travelling to the UK for lawful abortions.
Significance: Fell outside the scope of Art 57 as the students were not being renumerated.
Society for Protection of Unborn Children v Grogan
