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36 Cards in this Set

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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

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

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

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



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.

Directive 2004/38

Provides entry to host MS to allow MS citizens to set up business under Art 49

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.

Refers v Belgium

Belgium law saying only Belgium national practice as lawyers. Direct discrimination of non-nationals breach of Art 49

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

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.

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.

Art 51

Derogation - provision that right of freedom to establish does not apply to activities which are connected with the exercise of official authority

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.

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

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.

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.

Van Binsbergen case

Showed that Art 56 is directly effective and freedom to provide services is one of the 4 fundamental freedoms.

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

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

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



Art 57

Not a service for renumeration if falls into exclusions of Art 2(2) and (3) includes healthcare and financial services

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

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

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

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

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



Directive 2006/123 Art 18

Derogation on safety grounds is possible on a case by case basis.

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

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.

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.

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.

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

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





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

Directive 2005/36 Chapter 3

System of automatic recognition of qualifications in specific professions


Medical, vets and architects

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.