ws6 Flashcards
Gebhard [1995]
ECJ defined restrictions as ‘national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty’.
Established a test to distinguish between establishment and services:
- Establishment - ‘stable and continuous’ activity
- Services - ‘on a temporary basis’
May also consider ‘periodicity, continuity and regularity’
ECJ stated that a State could defend measures that actually hinder freedom of establishment on the following basis:
- Must be non-discriminatory (indistinctly applicable)
- Must be justified by ‘imperative requirements in the general interest’
- must be ‘suitable for securing the attainment of the objective’ which they pursue
- Must ‘not go beyond what is necessary’
Rina Services SpA [2016]
- Italian law required certification bodies operating in construction sectors needed their registered office in Italy
- This requirement fell under prohibited requirements
- No justification permitted at all.
Reyners v Belgium [1974]
- Belgium tried to justify restrictions on practising lawyers with ‘exercise of official authority’
- ECJ rejected this, legal work did not fall under official authority - narrow interpretation
Authority for Article 49 TFEU having Direct Effect
Example of Distinctly Applicable measure
Van Binsbergen [1974]
Authority for Article 56 TFEU having Direct Effect
Centros [1999]
- Meaning of a ‘company’ is a matter for the home State.
- Used this principle to bypass Danish regulations and form a company without meeting the minimum share capital - by establishing a company in the UK first.
- Attempted justification through Gebhard principle failed - not proportionate
Commission v Italy [1989]
Only majority state-held companies could get data-processing contracts
Attempted to justify though protecting confidentiality of data
Not proportionate
Example for an indistinctly applicable, indirectly discriminatory measure
Sodemare [1997]
Only non-profit orgs could carry out certain social activities
Justified through Gebhard approach
Deemed proportionate and accepted
Example of a non-discriminatory restriction on establishment
Marks & Spencer Plc [2005]
Article 49 TFEU does not apply to wholly domestic situations.
But ECJ often been quick to find a ‘Union element’ to allow application of Article 49 rights.
Alpine Investments [1995]
Confirmed that where no individuals actually move, but services are provided remotely, still falls under scope of Article 56 TFEU.
Applied M&S principle - that Article does not apply to wholly domestic situations - to Article 56 TFEU.
Applied the Cassis style approach in the same way as Gebhard, but to the freedom to establish services
Must show that rules are justifiable by ‘imperative reasons in the public interest’
Was deemed proportionate! justified through Cassis style approach
Viacom [2005]
Outer limits of ‘restrictions’
- Company claimed that a billboard tax infringed Article 56 TFEU
- ECJ ruled that the tax was modest in relation to the service, and did not constitute a restriction.
Children Ireland Ltd [1991]
Where there is no commercial motive, in this case, the distribution of information, there is no provision of services.
VanderElst [1994]
- Confirmed that service providers have the right to use one’s own workforce
- Even when employees are not EU citizens
Luisi and Carbone [1984]
- Where individuals travel to another Member State and receive services there, Article 56 TFEU still applies
- In this case, confirmed that individuals have the right to receive medial services and tourism services on other Member States
Cowan [1986]
Applied Luisi and Carbone confirming that when on holiday, a person is a recipient of tourism services, and entitled to protection and compensation of harm.
Watts [2006]
- Principle that if a patients cannot be treated in their home State without undue delay
- Can seek treatment in another Member State at the expense of the insurance scheme (in this case, on NHS)
