Chapter 5 Flashcards
(41 cards)
What articles?
Articles 49 - 55 TFEU
What does Article 49 say?
Restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited.
Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.’
What is ‘self employed’?
Janu
- outside any relationship of subordination concerning the choice of that activity, working conditions and conditions of remuneration
- under that person’s own responsibility
- in return for remuneration paid to that person directly and in full
What is ‘establishment’?
Permanent presence by a person, a firm or a company
(stable and continuous basis)
Steymann
- activities carried out without a foreseeable limit
Commission v Germany (Insurance Services)
- ‘…an insurance undertaking of another Member State which maintains a permanent residence in
- even if that presence does not take the form of a branch or agency, but consists merely of an office managed by the undertaking’s own staff or by a person who is independent but authorised to act on a permanent basis for the undertaking, as would be the case with an agency
Factortame II
concept of establishment ‘involves the actual pursuit of an economic activity through a fixed establishment in another Member State for an indefinite period’.
Gebhard
- ‘The concept of establishment within the meaning of the Treaty … is a very broad one, allowing a EU national to participate, on a stable and continuous basis, in the economic life of a Member States other than his State of origin and to profit therefrom, so contributing to economic and social interpenetration with the Union, in the sphere of activities of self-employed persons.’
This case contrasted it to Services
What does Steymann say?
- activities carried out without a foreseeable limit
What happened in Commission v Germany (Insurance Services)
- ‘…an insurance undertaking of another Member State which maintains a permanent residence in
- even if that presence does not take the form of a branch or agency, but consists merely of an office managed by the undertaking’s own staff or by a person who is independent but authorised to act on a permanent basis for the undertaking, as would be the case with an agency
What did Factortame II say?
concept of establishment ‘involves the actual pursuit of an economic activity through a fixed establishment in another Member State for an indefinite period’.
What did Gebhard say?
Gebhard
German national disciplined for using title with no recognition
Definition of Establishment
- ‘The concept of establishment within the meaning of the Treaty … is a very broad one, allowing a EU national to participate, on a stable and continuous basis, in the economic life of a Member States other than his State of origin….’
Contrasted against Services
- Regularity
- Periodicity
- Continuity
4 Conditions for Imperative Requirements
Article 49 and Direct Effect
Horizontal / Vertical
Reyners
Article 49 has been capable of having DE since the end of the transition period
Reyners - could bring a claim in the national courts against the Belgian Bar for refusing him entry solely because he was not Belgian.
Vertical Direct Effect
Wouters
Article 49 also applied at least to regulatory organisations and associations not governed by public law
Viking
- The Article could be relied upon against a trade union or group of trade unions.
- ambiguity as to whether or not a collective dimension is still required before Article 49 can have direct effect against a private party.
What happened in Reyners
Reyners a Dutch national who had obtained his legal education in Belgium, was able to bring a claim in the national courts against the Belgian Bar for refusing him entry solely because he was not Belgian.
DE against the State vertically
What did Wouters say
the Court of Justice had indicated that Article 49 also applied at least to regulatory organisations and associations not governed by public law
What did International Transport Workers Federation v Viking Line ABP say
- This case arose from a decision by Viking Line to transfer the registration of its ferry from Finland to Estonia to reduce labour costs.
- The Union representing its Finnish employees (the ‘FSU’) and the International Transport Workers Federation (ITWF), which the Union was affiliated to, threatened strikes and boycotts.
- The Grand Chamber of the Court of Justice rejected the ITWF’s argument that Article 49 could only apply horizontally against organisations or associations exercising a regulatory task or having quasi-legislative powers. It held that the Article could be relied upon against a trade union or group of trade unions.
- it took into account the function of trade unions in drawing up collective agreements to regulate paid work collectively and the fact that the actions of the ITWF and FSU were aimed at inducing Viking Line to enter into such an agreement. This left some ambiguity as to whether or not a collective dimension is still required before Article 49 can have direct effect against a private party.
- the Grand Chamber went on to hold that the collective action to prevent a Ferry being registered in another State would be a restriction on the freedom of establishment but that restriction could be justified by an overriding reason of public interest in protecting workers, as long as the collective action was proportionate.
What does Article 51 say?
Shall not apply to activities which in that State are connected, even occasionally, with the exercise of official authority
Reyners
Official authority is that which arises from the sovereignty and majesty of the state; for him who exercises it, it implies the power of enjoying the prerogatives outside the general law, privileges of official power and powers of coercion over citizens
What happens in Reyners?
- Refused entry to bar as not Belgian national
Official authority definition:
‘Official authority is that which arises from the sovereignty and majesty of the state; for him who exercises it, it implies the power of enjoying the prerogatives outside the general law, privileges of official power and powers of coercion over citizens.’
Direct DIscrimination
What are ‘official authorities’ Article 51
Reyners
Official authority is that which arises from the sovereignty and majesty of the state; for him who exercises it, it implies the power of enjoying the prerogatives outside the general law, privileges of official power and powers of coercion over citizen
Commission v Greece
- excluded from the official authority exception the professional activity of road traffic experts who appeared as witnesses in court rooms.
Commission v Italy (data)
- he design, programming and operation of data-processing systems for public authorities was held not to fall within the official authority exception because it was of a technical nature and, therefore, unrelated to the exercise of official authority.
Commission v Italy (lottery)
- Same conclusion - provision and operation of a computerisation system for a national lottery.
Thijssen
- the post of commissioner of insurance companies did not fall within the exception, since although the post involved monitoring companies and reporting infringements of the penal code, it lacked final powers to stop insurance companies from pursuing certain policies.
Can you apply Article 49 domestically?
Auer
Italian qualification as a vet. Returned to France + practices. prosecuted.
Article 49 ONLY concerns the nationals of other states
Knoors
Plumbing qualification in Belgium. Netherlands. Rejected as no Dutch qualifications. Article 49 didn’t apply. Directive 64/427 - MS had to accept knowledge and ability. This has DE
Auer I
- implementation date of Dealine 64/427 passed so could apply
Asscher
- Article 49 can itself be applicable in the home state of a Member State national in the absence of a directive so long as there is a sufficient cross border element involved.
Nino
Never purely internal
What happened in Auer
Article 49 cannot be relied upon in this situation
Held: he could not rely on Article 49 as in each MS - the article only concerns nationals of other MS.
This case concerned a French national who held an Italian qualification in veterinary medicine.
He was being prosecuted in France for practicing as a veterinary surgeon there without authorisation from the French Ministry of Agriculture.
His applications for authorisation had previously been rejected on the ground that his Italian qualification was not the equivalent to that required in France.
The Court of Justice held that he could not rely on Article 49 as, in each Member State, that Article only concerns the nationals of other Member States.
THEN
This was to change a few years later when Dr Auer was prosecuted yet again for continuing to practise as a veterinary surgeon in France without authorisation from the French Ministry of Agriculture. By this time, the deadline for implementing the directives had passed but France had failed to implement them. In Auer v Ministere Public, the Court of Justice held that the directives now had direct effect and provided him with a right to practice as a veterinary surgeon in France so long as the requirements of the directives were satisfied.
Directive 64/427 which required the Member State to accept as sufficient evidence of knowledge and ability the fact that the activity in question had been pursued in another Member State for certain specified periods.
What happened in Knoor
This case involved a Dutch national who had obtained his qualifications and experience as a plumber in Belgium. He had returned to the Netherlands and had applied for an authorisation to carry on this trade there. However, his application had been rejected on the ground that he lacked the requisite Dutch qualifications.
He sought to challenge this by relying on Directive 64/427 which required the Member State to accept as sufficient evidence of knowledge and ability the fact that the activity in question had been pursued in another Member State for certain specified periods.
The Court of Justice accepted that Article 49 could not apply to purely internal situations. However, the Court then went on to hold that this did not prevent Knoors relying on the directive as the directive had defined the scope of its own applicability in terms that drew no distinction between the nationals of the Member State concerned and those of other Member States.
What happened in Asscher
Article 49 can itself be applicable in the home state of a Member State national as there is a sufficient cross border element involved.
Dutch national in Belgium. Taxed at higher rate in Holland as a non-resident.
Article 49 TFEU did not apply to purely internal situations BUT situation here was not purely internal because he was being taxed differently as a result of him exercising his Treaty rights.
Could be justified by the Member State if the differences between the two groups were genuine objective differences. On the facts of the case, they were not found to be.
What happened in Nino
the Court of Justice held that Article 49 did not to apply to the prosecutions of four Italian nationals who, having qualified as biotherapists and pranotherapists while resident in Italy, had provided biotherapy and pranotherapy treatment in Italy without being granted authorisation to practise as medical doctors there. The prosecutions involved situations which were purely internal to Italy.
What is a restriction under Article 49?
Direct, Indirect and Measures which make it less attractive
Direct
Reyners
- based on nationality
Thieffry
- expanded to indirect
- refused admittance to Parisian bar even though qualifications recognized
Klopp
—- Parisian Bar prevented members maintaining offices in other Member States w
Measures made less attractive
Gebhard
—- a German national disciplined by the Milan Bar Council for using the title ‘avvocato’ without having first obtained a formal recognition of his qualifications.
Caixa
— Any national measures which ‘prohibit, impede or render less attractive’ the pursuit of an occupation in more than one Member State is a restriction
What are the derogations?
Article 52 TFEU
> public policy
> public security
> public health
What is Article 52
Derogations
- The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of
public policy,
public security or
public health.
What happened in Commission v UK (Open Skies)
Attempt to derogate
(failed)
- The United Kingdom had entered into an air services agreement with the United States of America which provided for operating authorisations to be granted to British airlines by the United States and to American airlines by the United Kingdom
- It also provided for the revocation, suspension or limitation of operating authorisations for non-British airlines by the United States at the request of the United Kingdom and of non-American airlines by the United Kingdom at the request of the United States.
- Directly discriminated against the airlines of MS - excluded them from benefits accorded to British airlines
- rejected the United Kingdom’s argument that the discrimination could be justified on the ground of public policy
- The Court held that the public policy derogation under Article 52 TFEU presupposes the need to maintain the discriminatory measure in order to deal with a genuine and sufficiently serious threat affecting one of the fundamental interests of society.
- direct causal link between the threat, which must be current, and the measure adopted to deal with it
The air services agreement could not be justified as 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 United Kingdom and the generalised discrimination against EU airlines in the agreement.
