Eu - Free Movement Of Persons - Establishment And Services

Front 1

Freedom to establish business

EU citizens are free to set up and run businesses permanently in a host state

Back 1

Article 49 TFEU

Front 2

Freedom to provide services on a temporary basis

Back 2

Article 56 TFEU

Front 3

Defines services as:

Normally provided for remuneration.

In particular include

a) industrial activities
b) commercial activities
c) craftsmen
d) professional activity

Back 3

Article 57 TFEU

Front 4

Establishment or services?

Distinction on 'stable and continuous' activity is. More stable and continuous suggested establishment

Back 4

Gebhard

Front 5

Article 56

Includes the ACCESS of services (including national health services)

Back 5

Watts

Front 6

Art 49 and 56 have direct effect and can therefore be relied on by individuals in national courts

Back 6

Reyners v Belgium

Front 7

Services

No commercial motives - aim was to distribute information. Did therefore not fall under articles.

Back 7

Grogan

Front 8

Services

5 situations covered by Art 56 TFEU:

Back 8

Provider goes to MS to provide services
Providing services in another MS for own nationals
Providing from own MS via phone, fax etc
Providers wish to employ non-EU citizens
Consumers accessing services in another MS

Front 9

Services

Providing services via phone, email, fax etc

Back 9

Alpine

Front 10

Services

Right to provide services includes right to use own workforce

Back 10

Vander Elst

Front 11

Services

Individuals have the right to receive medical and tourism services in another MS

Back 11

Luisi v Carbone

Front 12

Services

French authorities refused criminal injury compensation to tourist. This was held to be a service and covered by Art 56

Back 12

Cowan

Front 13

Establishment

UK tax law allowed parent companies based in UK to claim tax relief from British subsidiaries, but not foreign.

This was held to a deterrent to setting up subsidiaries in other MSs

Back 13

Marks & Spencer v Halsey

Front 14

Distinct/Indistinct measures - Services

e.g. of discrim indistinct - Only persons established in Holland could act as legal advisers in social security cases

Back 14

Van Binsbergen

Front 15

Distinct/Indistinct measures - Services

e.g. of non-discrim indirect - German law prohibited ANY limited company providing patent renewal.

STILL infringed Art 56 TFEU

Back 15

Sager

Front 16

Equal Treatment for Self Employed

Freedom to undertake self employed business under same conditions laid down for own nationals

Back 16

Article 49 TFEU

Front 17

Equal Treatment for Self Employed

Person providing services may do so under same condtions as are imposed on nationals

Back 17

Art 57 TEFU

Front 18

Equal Treatment for Self Employed

The meaning of 'company' depends on meaning in....

Back 18

national's home state

Front 19

Establishment

Businesses may set up company is MS with a light regulatory scheme and then establish in home state in order to avoid restrictions

Back 19

Centros

Front 20

Non-discrim indistinct measures

Italian rules required certain activities (e.g. elderly homes) to be carried out by non profit organisations.

Argued that this was a restriction on freedom of establishment.

Justified - protection of financial stability of social security

Back 20

Sodemore

Front 21

Local authority imposing advert tax (applied to all businesses) was modest in relation to service and was therefore NOT a restriction

Back 21

Viacom

Front 22

Directive 2004/38

GENERALLY - All union citizens in a host state shall 'enjoy equal treatment' to host state nationals

Back 22

Article 24 2004/38

Front 23

Justifying Restrictions

Treaty exceptions (direct and indirect)

If activity is connected with the exercise of official authority, it will not be covered by Arts 49 and 56

Back 23

Article 51 TFEU

Front 24

Justifying Restrictions

Treaty Exceptions

Public policy, health and security

Back 24

Article 52 TFEU

Front 25

Justifying Restrictions

Treaty Exceptions

Only Belgian nationals could practice as lawyers. Attempted to justify Article 51 TFEU. Argument failed - demonstrates that Art 51 will be interpreted NARROWLY

Back 25

Reyners v Belgium

Front 26

Justifying Restrictions

Treaty Exceptions

Company ran a laser game. Police banned 'playing at killing games' - simulated horror and violence were contrary to values.

The ban was proportionate because it ONLY banned shoot to kill games

Back 26

Omega

Front 27

Justifying Restrictions

Cassis style - indistinct ONLY

State could defend measures if....

a) Indistinct
b) Justified by imperative requirements in general interests
c) suitable for attaining objective
d) proportionate

Back 27

Gebhard

Front 28

Justifying Restrictions

A non-discrim indistinct measure can be challenged if:

'liable to hinder or make less attractive the exercise of fundamental freedoms

Back 28

Gebhard

Front 29

Justifying Restrictions

Only companies in which state had a majority share could obtain contracts in industry. Tried to justify by need to protect confidentiality of data.

Rejected - duty of secrecy and criminal offence would be more proprtionate

Back 29

Commission v Italy

Front 30

Justifying Restrictions

Businesses were banned from cold calling new customer to protect name of Dutch financial service industry.

Measure was OK - Did not apply to existing customers and other ways of contacting potential customers

Back 30

Alpine

Front 31

Countries must recognise other countries qualifications

BUT if there are gaps/differences, MS may impose measures to fill these gaps

Back 31

Qualifications Directive 2005/36

Front 32

The Services Directive

Covers establishment and services in TFEU AND includes permanent service provider.

but MUST be element of

Back 32

service provision

Front 33

The Services Directive

Exclusions contained ....

Back 33

Article 2(2) and (3) Services Directive

Front 34

The Services Directive - Establishment

Sets out measures permissable

Back 34

Chapter III Services Directive

Front 35

The Services Directive - Establishment

3 measures permissable under Chapter III Services Directive

Back 35

Authorisation Schemes
Prohibited Requirements
Requirements to be Evaluated

Front 36

The Services Directive - Establishment

Authorisation schemes are...

Back 36

requirements for providers to obtain authorisation before pursuing a particular activity in MS

Front 37

The Services Directive - Establishment

Authorisation schemes will only be permissible if....

Back 37

Non-discrim
Justified by reason relating to public interest
Proportionate

Front 38

The Services Directive - Establishment

3 Prohibited requirements....
(Article 14)
NO justification

Back 38

Discrim nationality
Prohibitions on establishment in more than 1 MS
Obligation to take out insurance in host state

Front 39

The Services Directive - Establishment

Art 10 -Requirements to be evaluated are...

Back 39

requirements which MS needs to examine to check they are compatible with Directive (Art 15)

Front 40

The Services Directive - Establishment

Requirements to be evaluated are...

Back 40

Quantitative/territorial restrictions
Obligation for provided to take specific legal form
Obligation on a provider to supply other service directly with service

Front 41

The Services Directive - Establishment

Requirements to be evaluated can be justified if...

Back 41

Non-discrim
Necessary for public interest
Proportionate

Front 42

The Services Directive - Services

Chapter IV (Art 16)

Prohibited Requirements - NOT capable of justification

Back 42

Set up establishment in host state
Register with professional body in host state

Front 43

The Services Directive - Services

Chapter IV (Art 16)

Other requirements may be imposed if...

Back 43

Non discrim
Necessary - policy, health, environment, security
Proportionate

Front 44

The Services Directive - Services

Article 16 will NOT apply to services of economic interest

Back 44

Article 17

Front 45

The Services Directive

Derogations based on safety grounds possible on case by case basis

Back 45

Article 18