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36 Cards in this Set
- Front
- Back
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Art 49 |
Covers freedom to establish, can be relied upon by self-employed and businesses to establish themselves in host MS |
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Art 54 |
Confirms that a company set up in accordance with the laws of its own MS is to be treated the same was as nationals of MS for freedom to establish |
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Art 56 |
Covers freedom to provide services. Art can be relied upon by individuals or businesses wishing to secure equal access to the market in host MS including cross-border trading. Also applies to 3rd country nationals |
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Art 49 exercise in 3 ways |
Setting up agencies, branches or subsidiaries Conducting self-employed activities Setting up and managing companies or firms in host MS |
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Art 49 Business organisations |
Agencies Host MS company used as agent Branch opens branch office in host MS Subsidiary set up new company in and ex company is parent company Companies setting up or becoming involved in companies in host MS Firms Partnership between external business and host business. |
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Directive 2004/38 |
Provides entry to host MS to allow MS citizens to set up business under Art 49 |
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Art 49 applies in 3 situations |
Prohibits direct discrimination Prohibits indirect discrimination Prohibits laws which are non-discriminatory on grounds of nationality but hinder freedom to establish. |
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Refers v Belgium |
Belgium law saying only Belgium national practice as lawyers. Direct discrimination of non-nationals breach of Art 49 |
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Commission v Italy |
Italian law that said that only companies which the Italian state held majority shares in could get certain contracts. As more likely to be Italian companies indirect discrimination and breach of Art 45 |
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Sodemar SA v Regione Lambardia |
Italy law which said that elderly care homes had to be run by certain businesses, applied to national a non nationals alike, however breach of Art 49 as likely to hinder the establishment of non-national companies. |
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Directive 2006/123 |
Aim is to provide cross border provisions of services, by simplification of admin procedures. Does not apply to healthcare. To promote a single market. |
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Art 51 |
Derogation - provision that right of freedom to establish does not apply to activities which are connected with the exercise of official authority |
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Art 52 |
Derogation - Provides that the right shall not prejudice the actions of MS providing for special treatment of nationals on grounds of Public policy, public security and public health. |
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Gerhard v Consiglio |
German set up a practice in Milan calling himself an Advocate, title reserved for Italian lawyers. ECJ said that to show objective justification: must be applied in non-discrimatory way Must be justified by imperative reasons in general interest must be suitable to achieve objective must not go beyond what is necessary to attain it |
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Art 62 |
Applies same derogations as Art 51 & 52 to Art 56. This is used for direct discrimination. Indirect discrimination and non-discrimination objective justification can be used. |
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Alpine Investments BV |
Confirmed that in the case of Art 56 objective justification can be used in indirect and non-discriminatory cases. Cross-border services. |
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Van Binsbergen case |
Showed that Art 56 is directly effective and freedom to provide services is one of the 4 fundamental freedoms. |
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Art 57 |
Services definition Where provided for renumeration it does not fall into Treaty provisions on goods, capital or persons Renumeration does not have to be direct There is a commercial motivation to provide a service |
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Directive 2004/38 |
under Art 6 and Art 7 can enter host MS if has enough funds not to be a burden and has sickness insurance |
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Directive 2006/123 Scope |
Aims to remove barrier to Art 49 & 56 Includes service providers who permanently and temporarily want to establish themselves Can include after sales service or customer advice Art 2(1) applies to services supplied Art 4(1) Self-employed economic activity for renumeration |
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Art 57 |
Not a service for renumeration if falls into exclusions of Art 2(2) and (3) includes healthcare and financial services |
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Directive 2006/123 Art 9 |
Authorisation (from host MS) schemes Only permissible if Does not discriminate against provider Is justified by an overriding reason to public interest Is proportionate Must apply to whole of host state |
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Directive 2006/123 Art 14 |
Prohibited requirements (what is not allowed) Discriminatory national requirements Prohibitions on having an establishment in more that one MS Obligations to take out insurance from provider in host MS banned outright |
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Directive 2006/123 Art 15 |
Requirements to be evaluated Quantitate or territorial restrictions on activity Obligation to take a specific legal form e.g. to have to establish as a company Obligation on a provider to supply other services jointly with his services Only if non-discriminatory and proportionate |
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Directive 2006/123 Art 16 |
Application on freedom to provide services 1. MS can only impose restrictions if non discriminatory, necessary, proportionate 2. requirements banned outright, to have to set up establishment in host MS, to have to register with professional body in host MS |
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Directive 2006/123 Art 17 |
Derogations Do not apply to services of general economic interest e.g. post, utility services, data processing and shipment of waste |
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Directive 2006/123 Art 18 |
Derogation on safety grounds is possible on a case by case basis. |
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Directive 2006/123 Art 19 & 20 |
Right of recipient of services prohibits imposing requirements on recipient prohibits public bodies and private operators from discriminating against users from other MS Justification must be based on objective criteria |
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Directive 2006/123 Art 21 |
MS must ensure the recipients are able to obtain adequate information in their home state about providers based in other MS. |
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Conway v French treasury |
ECJ ruled that french law allowing compensation for being mugged to French nationals only was breach of tourists right under Art 55 as it obstructed his right to move freely in France and receive services. |
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Art 56 uses |
Where provider of services moves to another MS to provide services, if full-time or permanent covered by Art 49 Where moves to host to provide services to nationals of his own Where cross-border services are provided by fax, telephone or e mail. |
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Directive 2005/36 Chapter 1 |
recognition of professional qualifications Host state must accept qualifications of a similar level obtained in other MS subject compensatory measures. Require completion of adaptation period or aptitude test if: Training in home state is 1 yr shorter Is substantially different |
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Directive 2005/36 Chapter 1 levels of competence |
Attestation of competence which corresponds to secondary education Cert which corresponds to training at a secondary level, technical or professional Diploma cart at post higher than secondary of 1 yr Diploma cert at higher or Uni 3 yr duration Diploma cert at higher or Uni 4 yr duration |
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Directive 2005/36 Chapter 2 |
System of automatic recognition of qualifications attested by proposal experience in certain industrial, craft and commercial activities Textiles, food, clothing where access is contingent on professional knowledge Host must recognise this |
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Directive 2005/36 Chapter 3 |
System of automatic recognition of qualifications in specific professions Medical, vets and architects |
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Vlassopoulou |
Greek lawyer gained work in Germany. German bar refused on grounds of lack of appropriate qualification. ECJ ruled german authorities were obliged to assess the equivalence of her qualifications. |
