5 - Freedom of Establishment: Articles 49-55 TFEU Flashcards

Question

Ministre Public v Auer?

Answer 1

- French national with Italian Vet Medicine qualification - Being prosecuted in France for practicing without authorisation from relevant authority. - His applications had been rejected on the grounds that his qualification was not equivalent to that required in France - Held: he could not rely on Article 49 as in each MS - the article only concerns nationals of other MS. Courts accepted that in principle it would have been possible for the applicant to have relied upon 2 directives in that case.

Answer 2

- Reiterated the findings from Ministre Public v Auer. - Dutch national - got his qualifications + experience as a plumber in Belgium. - Went back to Netherlands and had applied for authorisation to carry on his trade there. - Application was rejected on the grounds that he lacked the correct Dutch qualifications. - Held: Article 49 could not apply to purely internal situations.

Answer 3

- Knoors: the deadline for the date of implementation had passed and so the directive could have direct effect. - Auer - the deadline had not expired, directive in that case did not have direct effect and could not be relied upon.

Answer 4

- Held: directives now had direct effect and provided him with a right to practice as a vet surgeon in France so long as the requirements of the directives were satisfied.

Answer 5

- Yes, as long as there is a sufficient cross border element involved. - This shift took place in Asscher v Statesecretary van finance.

Answer 6

- After this the courts accepted that Article 49 can itself be applicable in the home state of a MS national in the absence of a directive - As long as there is a sufficient cross border element. - Asscher was director of companies in both Belgium and Holland - Was taxed at higher rate in Holland as a non resident who was getting income from outside of Holland Challenged this using Article 49. - Differences are prima facie discriminatory But could be justified by the MS if the differences between the 2 groups were genuine objective differences.

Answer 7

- Article 49 TFEU will not be applicable to situations where there is no element going beyond a purely national setting. - Held: Article 49 did not apply to the prosecutions of 4 Italian nationals who qualified as therapists in Italy, and provided treatment in Italy without being granted authorisation to practice as medical doctors there. - The prosecutions involved situations that were purely internal to Italy.

Answer 8

- The fact that measures that directly discriminate on the basis of nationality will clearly breach Article 49.

Answer 9

- Thieffry v Coseil L'Odre the Avocats Paris - Belgian national with a Belgian doctorate in law - who had practiced as an advocate in Belgium. - He obtained French uni recognition of hi qualifications as being equivalent to a French degree. Passed examinations for a certificate to practice as an "avocat" in France. - Parisian Bar refused him admission to the training stage of avocat - bc he lacked a degree in French Law. - Held: it was incumbent on the competent public authorities to ensure that national legislation and practice is applied in accordance with the objectives of the freedom of establishment, subject to the observance of professional rules justified by the general good. - Therefore it was an unjustified restriction to refuse to admit a person to a profession where his qualification had been recognised as an equivalent qualification by the competent authority of the country of establishment.

Answer 10

- it was an unjustified restriction to refuse to admit a person to a profession where his qualification had been recognised as an equivalent qualification by the competent authority of the country of establishment.

Answer 11

- Rule of the Parisian Bar which prevented members maintaining offices in other MS was held to restrict the freedom of establishment - Since it prevented a German lawyer from successfully applying for membership. - This was notwithstanding that it applied irrespective of the nationality of the applicant.

Answer 12

- German national who wanted to be a professional lawyer for several years - Disciplined for using the title of "lawyer" without getting formal recognition of his qualifications. - Court of justice made it clear that national measures that are liable to hinder or make less attractive the exercise of the freedom of establishment constitute a restriction on that freedom.

Answer 13

- National measures which are liable to hinder or make less attractive the exercise of the freedom of establishment constitute a restriction on that freedom. - Held: any national measures which 'prohibit, impede, or render less attractive' the pursuit of an occupation in more than one MS is sufficient to amount to a restriction under Article 49.

Answer 14

- Article 52 TFEU | - Same derogations as provided in respect to the free movement of persons.

Answer 15

- When companies are concerned - The derogations are regulated by the Treaty alone and by the general principles of EU law including the principle of proportionality. - UK entered air services agreement with USA - provided for operating authorisations to be granted by the USA and to American airlines by the UK. - HELD: agreement directly discriminated against the airlines of other MS which were established in the UK because it excluded them from benefits accorded to British airlines. - Could not be justified under Article 52 derogation - Because: the refusal authorisations were not limited to circumstances where an airline poses a threat to public policy - And in any event, there was no direct link between any threat to the public policy of the UK and the generalised discrimination against EU airlines in the agreement.

Answer 16

- Additional grounds for justification - Equivalent of Mandatory Requirements for the movement of goods / pressing reasons in the public interest for the free movement of persons.

Answer 17

- Kraus v Land Baden - Union Royale Belge des Society de Football Association - "overriding reasons in the public interest"

Answer 18

- Thieffry. - In relation to an indistinctly applicable restriction - Accepted that freedom of establishment, was subject to the need for national professional rules justified by the general good. - Therefore the freedom could maybe be opened up to justifications on grounds that fell outside the derogations of Article 52.

Answer 19

- The question of whether the freedom of establishment, can be opened up to derogations outside those that are in Article 52. - Held: a rule that prevented members of the Paris Bar from maintaining officers in other MS was a restriction to their freedom of establishment. - This was in the interests of the proper administration of justice. - Restriction was unnecessary + disproportionate.

Answer 20

- Gebhard - Held: national measures that are liable to hinder, or make less attractive the exercise of freedom of establishment must satisfy 4 conditions in order to be justified.

Answer 21

- Firms, companies, individuals | - Firms = 2+ persons who carry on business in common with a view to profit. Aka a partnership.

Answer 22

- Companies get similar rights to freedom of establishment as individuals - Held: the requirements of the Merchant Shipping Act breached Article 49. - Because they required the majority of shareholders in a company owning UK ships, to be British. - Requirement applied irrespective of if shareholder was a person, or another company. - Held: this discriminated against both persons and companies who were nationals from other MS.

Answer 23

- Article 54 requires company to be profit making. Company must be formed in accordance with the law of MS. - Registered office / central admin/ principal place of business must also be within the Union. Unsure which of these should be the 'connecting factor'. - Natural persons can rely on Article 49 for non-profit making economic activities.

Answer 24

1) Registered office 2) Central administration 3) Principal place of business

Answer 25

- Identifies connecting factor as the place where the company was legally incorporated - And has its registered office. - This doctrine is used in UK/Ireland/Netherlands/Scandinavia

Answer 26

- Connecting factor = place where company central administration is located. - Used in Belgium, France, Hungary, Germany, Greece, Lux, Portugal, Spain - Principal place of business may alternatively be treated as connecting factor.

Answer 27

1. Affects whether or not foreign company is recognised as valid legal entity. Real seat doctrine - will determine validity of foreign company. 2. Whether or not company is able to transfer its central administration to another MS. Incorporation doctrine = will permit company incorporated in MS to transfer its central administration to another MS with its legal capacity.

Answer 28

- Use the freedom in Article 49 | - To set up agencies, branches or subsidiaries in other MS without restriction

Answer 29

- Involved a subsidiary - Still a subsidiary even if the company conducts no business of any kind in the MS in which it was incorporated - And does it all through an agency/ branch / subsidiary in MS. - Result - effect of ensuring traders a wide freedom of choice as to where they could incorporate a company. - Can take advantage of more lenient regulatory regimes in some MS such as UK and trade somewhere else.

Answer 30

- Centros Ltd v Erhervs - Centros = incorporated in the UK - Bought by 2 Danish Nationals who lived in Denmark. - Never actually traded from the UK or anywhere else. - Held: this was not, in itself, an abuse of the right of establishment to set up a company in MS who have least restrictive laws and then set up branches elsewhere.

Answer 31

- Kamer van Koophandel Fabric v Inspire Art. - Company incorporated in UK - Owned and run by Dutch national who only traded through a Netherlands branch. Dutch law said that foreign company that established branches in the Netherlands had to maintain share capital at least equal to the minimum share capital required by Dutch companies. - Held: this impeded freedom of establishment and infringed Article 49.

Answer 32

- Principle that company that has been incorporated in the law of one MS must be recognised as a valid company with legal capacity in other MS. - Uberseeing v Nordic Construction Company. - Company incorporated in the Netherlands then was bought by 2 German nationals living in Germany. - New owners transferred its central administration to Germany. - German law did not recognise the capacity of a company that had been incorporated outside of Germany so they had no capacity to bring proceedings against contractor for defective work unless it reincorporated in Germany. - Held: it is a precondition of freedom of establishment that companies are recognised by any MS in which they wish to establish themselves.

Answer 33

- Daily Mail = concerned relations between a company and the MS under whose laws it had been incorporated. - Did not concern the way in which one MS treats a company which is validly incorporated in another MS.

Answer 34

- Right to enter and reside. - Detailed rules about this are in Directive 2004/38. (rights of entry and expulsion for Union citizens and their families)

Answer 35

- This falls under "social rights" - Article 49 - nationals of a MS exercising their freedom of establishment have access to certain social rights on same basis as nationals of host MS. - Held: italian legislation allowing only Italian nationals to purchase / lease housing built with the help of public funds and to obtain reduced rate mortgage was in breach of Article 49.

Answer 36

- 80/48 - Covered all regulated professions that required a uni degree - Meant that it covered all of these professions not yet covered by a specific directive.

Answer 37

- There are 5 qualification levels | - Applicant must hold qualification at least equivalent to the level prior to that required in the host state.

Answer 38

- If training duration is one year shorter than required by host MS - Applicants training covered different matters from those that are covered by qualification required by host MS - Regulated profession in host MS comprises 1+ regulated professional activities which do not exist in corresponding profession in applicants home MS.

Answer 39

- EU own principle of mutual recognition of qualifications - Belgian national. Belgian diploma in law. Practiced as advocate in Belgium. - Applied to French University to study for certificate to practice as an 'advocat' in France. - Application was accepted, after French uni recognised his diploma as being equivalent to French law degree. - Held: not allowing him to practice was "unjustified restriction on that freedom"

Answer 40

- Developed principle of mutual recognition and applied in situations BEYOND freedom of establishment. - Any decision by host MS concerning mutual recognition of the equivalence of qualifications must have an objective basis - This case regarded the freedom of workers under Article 45. - Belgian football trainer with Belgian qualification - subject to prosecution by French football trainers union for working in France. - Held: in the absence of harmonising Directive, MS are entiteld to regulate such qualifications but they had to assure themselves of the equivalence of the foreign diploma.

Answer 41

- National law had provided for the recognition of equivalent foreign qualifications by a competent national authority.

Answer 42

- Courts extended their approach to recognition of equivalent foreign qualifications - Greek national with Greek law degree, had practiced German law in Germany before applying for admission to the bar. - Refused because he had not passed German qualifications. - Held: authorities must take into consideration the knowledge and qualifications of the applicant certified by her foreign diploma and compare these to those required by the national qualification. VLASSO = Knowledge and qualifications must be taken into account, have to compare those that are required by the national qualification

Answer 43

- Vlasspoulou principles applied to situation - National of MS was seeking to rely in her own MS on qualification awarded in another MS - Another case concerning free movement of workers under Article 45 - Spanish national who undertook post grad course in fine arts restoration in UK with a grant from Spanish museum, Prado. - Applied to work there permanently - after working there temp for 3 years. - Rejected because her UK qualification had not bee recognised as equivalent to the relevant Spanish degree. - Held: she was entitled to rely on Vlassopoulou principles in her own MS because she had acquired her professional qualification in another state. - They made the grant to her to enable her to undertake the postgraduate qualification at issue - had already employed her on temporary basis in the post to be filled - Therefore was 'ideally placed' to assess her actual knowledge and abilities compared to knowledge and abilities of holders of the relevant Spanish qualification.

Answer 44

- Only subsequent practical experience in the EU can be credited. - Initial non EU qualification carried no right of acceptance by MS.

Answer 45

- French national got dentistry qualification in Lebanon. - This was recognised in Belgium as equivalent to its national requirements - When he applied in France they would not accept his Lebanese qualification because it was not included in Directive 78/686 (mutual recognition by MS of dentistry qualifications) - Held: the fact that one MS accepted the equivalence of qualifications does not bind other MS where those qualifications were not listed in the directive.

Answer 46

- Applicants diploma in Dentistry was obtained in Turkey but he practised in Belgium + was allowed to practise in Germany - German authority would not let him practice within the German social security system because he had not completed the 2 year training period as required by German law. - Held: could not rely on Directive 78/686 as it only applies to qualifications obtained in MS. - Applied Vlassopoulou - held that it was not permissible under Article 49 for national authority to refuse to register a person who had lawfully practised in another MS without first examining whether his experience corresponded what is in the relevant harmonising directive.

Answer 47

- Argentinian doctor who qualified as a doctor there. - His qualification had been recognised in Spain - because it was recognised as equivalent to Spanish MBBS. - Took further training in Spain and got diploma in that specialism - Moved to France - refused to let him practice medicine there because his Argentinian qualification did not allow him to practice medicine there. - Held: applicant COULD rely on Article 49 Directly even though there was a harmonising directive and his Argentinian qualification did not satisfy this directive. - Person who does not satisfy the requirements of a mutual recognition directive could still rely on the principles derived from those cases - Therefore - ensured that acquisition of skills must always be taken into account.

5 - Freedom of Establishment: Articles 49-55 TFEU Flashcards

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