FOE - Facts and cases

Question 1

Article 49

Answer 1

Freedom of establishment - Restrictions on FOE for EU citizens shall be prohibited. Broad application.

Question 2

Steymann

Answer 2

Establishment differs to services in terms of permanency

Question 3

Gebhard

Answer 3

Participation on a stable and continuous basis

Question 4

Reyner - Distinct discrimination

Answer 4

Not allowed to practice as a lawyer in Belgium as he was Dutch

Question 5

Klopp - Indistinct discrimination

Answer 5

German lawyer, wanted to join Paris bar. However French law stipulating that you cannot have foreign practices meant this was a barrier to foreign national entry to French law. Indirect discrimination

Question 6

Theiffry - indirect discrimination

Answer 6

Belgian national who did degree and phd in Belgium, wanted to join Paris bar. French university graded his qualifications as excellent, and equivalent to French lawyer. Paris bar denied entry as needed specific qualification. Did not have to be French, but did have to have French qualification to join bar. This is indirectly discriminatory, and EU said this is not allowed. There must be a principle of mutual recognition of non-MS qualifications

Question 7

UNIECTEF v Heylens

Answer 7

French football academy refused to recognise Belgium football coaches qualifications (had to recognise due to principle of mutual recognition)

Question 8

Vlassopoulou

Answer 8

Greek lawyer, Germany would not recognise his qualifications. Not allowed, principle of mutual recognition

Question 9

Fernandez de Bobadilla

Answer 9

Spannish did first degree in US, in art history, then did post grad in UK. Worked in Spain at Prado, to get promotion in Spain had to have extra qualifications which she already had in other countries but not spannish version. Restrictions on recognition of qualifications is justified provided it fits an objective test and fills a gap between foreign qualifications and MS national qualifications.

Question 10

Hocsman

Answer 10

must recognise qualifications, and work experience for EU citizens.

Question 11

Hugo Fernando

Answer 11

Extends Bobadilla approach to situations where a profession was equally recognised in all MS

Question 12

What is the test for whether a barrier to FOE is permitted?

Answer 12

Gebhard;

• Barrier is applied in a non-discriminatory manner
• Required in general interest
• Suitable for attaining objective
• The barrier is proportionate

Question 13

What constitutes a restriction to FOE?

Answer 13

CaixaBank France - Test of obstacle to freedoms widened to anything which should prohibit impede or render less attractive

Question 14

Gebhard

Answer 14

German lawyer practicing in Italy, was not allowed to use the title of advokato. This had large impact on his business. ECJ ruled he was allowed to use title, and set a test as to when a barrier

Question 15

How are non-EU qualifications regarded in relation to mutual recognition?

Answer 15

No obligation to recognise qualifications, however obligated to recognise experience

Question 16

Haim

Answer 16

Qualified Dr in Turkey, however not recognised by Belgium, but had been practicing as Dentist in Belgium, therefore Belgium could not make Haim do Belgian qualifications as had to recognise experience

Question 17

Tawil Albertini

Answer 17

Lebanese dentist - If a non EU qualification has been recognised by some MS, it doesn’t automatically mean its recognised by others. In this case the applicant did not have a lot of experience in EU so could not automatically rely on FOE

Question 18

When can FOE be relied on domestically?

Answer 18

Yes;

• If no abuse of community rights
• If there is a cross border element

Question 19

Knoors

Answer 19

Dutch national qualified in Belgium, then returned to Holland to practice. This is art 49 case as he crosses border to get qualification. Could not be restriction on establishment

Question 20

Asscher

Answer 20

Different tax rates between residential and non residential tax payers are discriminatory BUT can be justified if the differences between two groups were genuine objective differences

Question 21

Borekmullen

Answer 21

Must ignore national law and follow EU law regarding recognition of non-MS qualifications

Question 22

What piece of legislation governs the recognition of qualifications where there is no MS law?

Answer 22

D2005/36

Question 23

How are job’s categorised?

Answer 23

Art 10-15 dependent on education levels

Question 24

Qualifications outside the EU are governed by what legislation in relation to recognition?

Answer 24

D2005/36 - Where the non-EU national has been working for 3 years in a MS which recognises his qualification, the MS must allow FOE

Question 25

Lawyers D77/249

Answer 25

Can represent client in another MS

Question 26

Lawyers establishment directive 98/5

Answer 26

Can practice in another MS on a permanent basis

Question 27

Wilson

Answer 27

UK law requiring language skills for foreign practice. Argued that was dependent on quality of work. h was still successful not speaking foreign lanugage

Question 28

Recognition of professional qualifications directive 2005/36

Answer 28

o Foreign lawyers moving to MS may have to do test or take top up course to practice as lawyer in MS.

Question 29

C v Germany

Answer 29

Any lawyer working in Germany must have German lawyer working with them

Question 30

Art 54

Answer 30

Companies can be established anywhere in the EU

Question 31

Steinhauser

Answer 31

To be established anywhere, company must be profit making enterprise

Question 32

Viking line

Answer 32

Pervasive right, can move states as is beneficial to company. In this case they moved to avoid a unionized state

Question 33

Centros

Answer 33

Not allowed to set up branch in another MS. Breach of FOE

Question 34

Daily Mail

Answer 34

Tried to move head office to pay less tax but were not allowed as had not paid outstanding corporate tax in UK

Question 35

Commission v France

Answer 35

French company branches in other states had branches taxed by French state as if they were in France but received none of the benefits

Question 36

M & S v Halsey

Answer 36

Breach of article 49. Cannot offset losses in one country against profits in another

Question 37

Article 51

Answer 37

– FOE does not apply to activities which are connected to the exercise of official authority

Question 38

Commission v Italy

Answer 38

Set up lottery and stated everyone had to be Italian setting up the computer system had to be Italian on basis of official authority. Not allowed.

Question 39

Commission v Greece

Answer 39

Road traffic exert if Greek (not justified)

Question 40

Thijssen (Insurance Services)

Answer 40

Derogation Art 51 defined narrowly - Commissioner of insurance companies does not fall under this exception - lacked final powers to stop companies pursuing certain policies

Question 41

Aricle 52

Answer 41

Public policy, health and security

Question 42

Commission v France

Answer 42

All biochemical companies should be French -Denied