Freedom of establishment and services

Question 1

Legal basis

Answer 1

Art 49-55 TFEU (establishment)
Art 56-62 TFEU (services)

Question 2

Establishment or Services ?

Answer 2

Establishment : pursuit of an eco activity through a fixed establishment in another MS for an indefinite period (Factortame)
= permanent basis
Art 49 TFEU

Services: fixed period of time
Art 56 TFEU

=>dosent apply when confined to within a single MS

Question 3

Establishment

Answer 3

• granted to natural and legal persons
• all types of self employed activity
• permanent activity : numerous criteria
• primary / secondary establishment

Justifications :
- exercise of official authority
Art 51 TFEU

• public policy, security and health
  Art 52(1) TFEU

-national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions:
1) Applied in a non-discriminatory manner

2) Be justified by imperative requirements in the general interest

3) Be suitable for securing the attainment of the objective which they pursue

4) Not go beyond what is necessary in order to attain it (proportionate).

=>Case C-55/94 Gebhard

Question 4

Secondary legislation : equal treatment of qualifications

Answer 4

Directive 2005/36/EC of 7 September 2005 on the recognition of professional qualifications

• doctors of medicine
• general care nurses
• dental practitioners
• veterinary surgeons
• pharmacists
• architects

Directive 98/5/EC of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained

=> right to practice under home country professional title

Question 5

Services

Answer 5

Art 57 TFEU
- provided for remuneration
- not governed by provisions relating to freedom of movement for goods, capital and persons
- eco activity (Humbel)
- cross border character (Gervais)
- temporary character (Ghebard)
- recipients also

Question 6

Services Directive 2006

Answer 6

• some exceptions
• prohibited requirements

Question 7

Case 2-74 Jean Reyners v Belgian State

Answer 7

Freedom of establishment
- equal treatment w nationals
- same rules applies to nationals of MS and all other MS
- exception to avoid non nationals to exercise in function of official authority (not if separable from the professional activity)

Question 8

Case 71-76 Jean Thieffry v Conseil de l’ordre des avocats à la cour de
Paris.

Answer 8

Freedom of establishment : public authorities need to ensure that practice / legislation is applied in accordance w treaty objectives

Question 9

Case 81/87 The Queen v H. M. Treasury and Commissioners of Inland
Revenue, ex parte Daily Mail and General Trust plc

Answer 9

Treaty provisions confer no right on a company incorporated under the legislation of a Member State and having its registered office there to transfer its central
management and control to another Member State

Question 10

Case C-221/89 The Queen v Secretary of State for Transport, ex parte
Factortame Ltd and others

Answer 10

Non discrimination

Question 11

!!!!!Case C-415/93 Union royale belge des sociétés de football association
ASBL v Jean-Marc Bosman!!!!!

Question 12

Case C-55/94 Reinhard Gebhard v Consiglio dell’Ordine degli
Avvocati e Procuratori di Milano

Answer 12

Recognition of qualifications and knowledge+ equivalence of diplomas

Question 13

!!!!!Case C-341/05 Laval un Partneri Ltd v Svenska
Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets
avdelning 1, Byggettan and Svenska Elektrikerförbundet!!!!

Question 14

!!!!!Case C-438/05 International Transport Workers’ Federation and Finnish
Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti!!!!!