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Flashcards in Establishment Deck (73)
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1
Q

Hartmann

A

Cross boarder element

German citizen working in Germany, looks like a wholly internal situation. However, he was residing in Austria, by residing in Austria and working in Germany there was a cross border element imposed into situation so brought himself within the scope of EU law. Therefore, he is now a worker for purposes of free movement of worker rules.

2
Q

Trojani

A

‘any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a “worker

What is effective and genuine economic activity is “whether the services actually performed by X are capable of being regarded as forming part of the normal labour market.

3
Q

Lawrie-Blum:

A

3 elements for worker

for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration’.

3 elements of what might be a worker:

¥ 1) performs a service (if someone pays you this is economic activity)
¥ 2) Under direction of another person – This is the distinguishing feature between the establishment of self-employed persons. If there is a relationship of subordination, this is a clear signal that you are dealing with a worker rather than a self-employed person.
¥ 3) received remuneration

4
Q

Levin

A

Part time work counts as worker. Doesnt matter why individual moves to seek work in anothr MS.

British person working in Netherlands, she completed part time work, they got less than national minimum income. Question: can she be considered to be a worker because she only worked for a part time bases and didn’t earn a lot of money. Court held: yes because many people work part-time, for some this is choice, for others there is no choice, this is all they can get. If exclude this outside scope of treaty you are excluding a huge amount of people.

5
Q

Lawrie-Blum

A

Short term work

if within a certain amount of time you are genuinely contributing to the labour market, this is work. If you work one or two hour in the month, this is purely marginal.

6
Q

Kempf

A

Does salary matter?

Piano teacher working in MS, only did 12 hours per week, she applied for social assistance. Host MS tried to argue that because she is earning so little and is applying for social assistance, she cannot be a worker. Court held: she can be considered a worker, it does not matter the amount she earned. Worker status is a different question for eligibility for social assistance.

7
Q

Ninni-Orasche

A

Does not matter why X has moved to work.
Italian woman married to an Austrian person and she lives in Austria, she did not worker. However, then she goe into work for a short period of time to qualify for financing aid relating to this work. They thought that she was abusing treaty provisions to apply for the grant. Court held: her motive does not matter: do not look at subjective factors, look at objective ones such as the hours she worked, the remuneration she received. Objective factors are more important than subjective factors.

8
Q

Steymann

A

What about work in religious communities/rehabilitation programmes?

various activities in religious community. Someone working in other MS religiously, Steymann was part of community performing various services, he did not get paid in money, he was paid in kind. This was found to possibly be within the realms of being classified as a worker. Payment in kind can also be remuneration.

9
Q

Bettray

A

rehabilitation programme - not work - adapted to each person. However, unlike in Steymann, in Bettray there was a foreigner participating in a rehabilitation program in another MS, he was a drug addict work was adjusted to his needs. Question: was this work when it was adjusted to his needs? Court held: this is not work because it is adapted to each person, whether activity is whether the services form ‘part of the normal labour market’. Is it a job that can be done by anyone.

10
Q

Trojani

A

distinguished Bettray - what matters is whether the services form ‘part of the normal labour market’. This approach has been criticized as it can leave out disabled people, their jobs sometimes have to be adopted, they would not be considered workers for the purposes of EU law.

11
Q

Bosman

A

horizontally directly effective

12
Q

French Merchant Navy

A

France had quota on a number of foreigners on ships. Held: directly discriminatory, cannot disriminate onn wrkers based on origin.

13
Q

Groener

A

Dutch person living in Ireland (teacher), and she couldn’t access work as a teacher because she had to speak irish, teaching itself could be done in english, but gelaic was requieed to preserve irish language. Held: indirect discrimination.

14
Q

Hartmann

A

wife and mfamily memebr could not claim allowance due to a resident requirement, they did not live in Germany, this is indirect discrimiantion because easily satified by people liviign the Germany.

15
Q

Bosman

A

Football player wanted to be transferred to a club in France and he couldn’t because his contract came to an end, he could not move to French club because he would have to pay the Belgium club a transfer fee. Question: what rule is this? It does not discriminate against anyone. It is a non discriminatory measure, so does art 45 cover? Held: yes on basis of idea of market access, the court held any measure which hinders access in the labour market in another MS will be caught by art 45 because makes it less attractive for you to work abroad.

16
Q

Schumacker

A

Belgium citizen living in Belgium, working in Germany, he was not entitled to same tax benefits as those who work and live in Germany. Held: this was discriminatory.

17
Q

Christini

A

What is social advantages?

wide definition. includes benefits that are not directly linked to employment or are granted to the dependants of the worker

18
Q

Hartmann

A

Child care allowance is an example of social advantage.

child-raising allowance – – right under Art 7(2) FMWR extended to spouse of a worker not resident in the MS where her husband was employed – the worker was a national of a MS and had exercised right of free movement to work in the host MS even if not to reside there. The allowance enabled him to work while his wife looked after the child! The family as a whole benefited and it was therefore a ‘social advantage’.

19
Q

Baumbast

A

German citizen and Columbian wife who resided in UK. No longer worked in UK. Court found they could still reside in UK also because child was going to school in UK.

20
Q

Bragança Linares Verruga

A
  • Rule by Luxemburg that children of workers could not get financial aid for their studies for university if they were not residents in Luxemburg. Court held: this was unacceptable, residential requirements are indirectly discriminatory. Luxemburg then said that they would change their laws and instead require that workers should be working in Luxemburg for at least 5 years before their children can get the grants. Court did not like this either because it imposes conditions which are not fair.
21
Q

Groener

A

In case of teacher in Ireland, Court accepted the justification that Ireland was to promote the national language, recognised in Art 3 – this is a legitimate thing for MS to do. Language requirement (see also Art 3 FMWR)

22
Q

Bernard

A

: Rule where young players, if player signs contract with another club, essentially they will have to pay damages, home club spends a lot of money training them. Court accepted legitimate, because it encouraged the recruitment and training of young footballers, but measure was not proportionate because money they had to pay, there was no clear link at how they got to this money. If they establish that fee being charged linked to the cost of player, then their argument would have succeeded.

23
Q

Commission v Belgium

A

¥ Local authorities did not allow foreigners to do various jobs at the local level (such as nurses etc), this is public service. Court held: takes an institutional approach saying lets look at nature of activity, what we are paying attention to is the following
¥ 1) powers conferred by public law, are they related to safeguarding the general interest of the state?
¥ 2) there should be a special relationship

24
Q

Factortame

A

The actual pursuit of an economic activity through a fixed establishment in another Member State for an indefinite period’ . Definition of what establishment is from case law. Elements from here:

1) economic activity.
2) Through a fixed establishment
3) for an indefinite period.

25
Q

Jany

A

When is FoE involved: distinguishing from other freedoms

Two prostitutes working in another MS, were they workers or self employed persons? They hired rooms and got remunication themselves. Court held: since no relationship of subordination, they were self employed persons not workers. Relationship of subordination separates workers from self employed. The scope of establishment is wide in including services such as prostitution.

26
Q

Gebhard

A

When is FoE involved: distinguishing from other freedoms

Distinguishing feature: Factortame tells us for an indefinite petiod. Establishment - stable and continuous basis. Services – a temporary. Not only duration, but also regularity, periodicity and continuity basis. Duration is not the only factor but also regularity, periodicity and continuity. If you want to hire premises for a service, does this automatically make you fall within idea of establishment because for certain time you have the offices. Held: no if equipment or infrastructure is for temporary, this does not make it an establishment.

27
Q

Knoors

A

Cross boarder element

Dutch citizen who wants to work as self employed person in Netherlands. Foreign elements was that he trained in Belgium and worked there, Netherlands then refused recognition of his trading in beligum, bring him within scope of EU law, there is a foregin element.

28
Q

Reyners

A

Cross boarder element

Dutch citizen who got education as lawyer in Belgium. He wanted to work in Belgium but was refused on the grounds of nationality. This brings you within scope of EU law.

29
Q

Reyners

A

Direct effect of Art 49 TFEU

argument that wording of art 49 does not satisfy Vanhandlers criteria so not directly effective. Court dismissed this, art 49 is directly effective. Applies against state and wide understand of state – any bodies whose public power has

30
Q

Viking Line

A

Horizontal effect

Trade unions invoke free movement of establishment. Trade union associations, can art 49 be relied upon against trade unions? Held: yes can rely on this provision.

31
Q

Thieffry

A

Indirect discrimination.

Belgium person in France has Belgium law degree, wanted to practice in France, he goes to university which checks his qualifications and issue him a certificate that his education is sufficient for pursuing legal profession in France. Application to member of the bar was rejected because he did not have a French degree, it does not discriminate based on nationality but indirect discrimination. Held: since his qualification has been recognised as equivalent, it is not just to reject him.

32
Q

Klopp

A

Indirect discrimination.

Secondary establishment, decided on prohibition of secondary establishment. German person who practices in German and wants to practice in France, he was not allowed because France required that they could not have establishment in other member state. Point was you need to have establishment in France so you keep in touch with clients. Art 49 says you cannot restrict secondary establishment. Held: there should be some presence with the client, but can keep in touch with them some other way.

33
Q

Gebhard

A

German citizen who wants to practice law in Italy and establishes practice and uses title Avvocato, to obtain this title you need to go through Italian education system. He did not ask for german qualifications to be recognised either. When prosecuted for using this title illegalluty. Court said that any “‘measures liable to hinder or make less attractive’ for foreign members to be less likely to establish themselves in any MS will be caught by art 49. This is the market access rationale. This is wider than discrimination. Any measure which hinder or makes less attractive will be caught by art 49.

34
Q

Hipermercados’

A

Examples of non-discriminatory restrictions

Rules about gigantic supermarkets, for various reasons they wanted supermarkets to obtain licences. Nothing to do with discrimination, but court thought that this made it less attractive for you to open a hyper market so this was caught by art 49.

35
Q

Wouters

A

Examples of non-discriminatory restrictions

Dutch rule that no partnership between accountants and lawyers, not discriminating against anyone. Held: this made it less attractive for you if you wanted to work in partnership. Following Gebhard nondiscriminatory measure caught by art 49.

36
Q

Steinhauser

A

German artist living in France, he wanted to participate in a tender to hire boutique for exhibitions, he was not allowed because not French. Held: direct discrimination and this was after he established himself, so is about how to enjoy right to establishment.

37
Q

Konstantinidis

A

– Greek person working in another MS, his surname was misspelt in official documentations. He thought this was outrageous. Held: this can be a restrictions and affect customers and therefore refusal to correct his surname can be caught by art 49.

38
Q

Thieffry

A

Belgium lawyer who does not have French qualification but Belgium law degree is recognised as equivalent to the French one. Therefore, does it make sense for the state to refuse recognition? No

39
Q

Vlassopoulou

A

Vlassopoulou imposes obligations on the Member States. Greek lawyer working in Germany, she has practise German law for awhile, when she applied to be an official German lawyer she was refused because she did not have a German degree or pass the German law exam. Question does her practise in Germany matter? Here there was obligations imposed on MS.

1) Must take into consideration foreign qualifications
a. Take into account Greek qualification and compare with German degree.

2) Must make comparison between the knowledge and skills attained with what is required under national law
a. If qualification is different look at knowledge and skills, take into account that she is practising.

40
Q

Reyners

A

‘the power of enjoying the prerogatives outside the general law, privileges of official power, and powers of coercion over citizens’ Court held not necessary official authority, this does not make task similar. Being a lawyer not exercising official authority because not the same as what the judge does. Court takes restrictive approach as freedom of workers.

41
Q

Hartmann

A

worked in Germany but resided in Austria - a worker who has been employed in a MS other than his own falls within the scope of Art 45 – had exercised freedom of movement as a worker - irrespective of his place of residence and his nationality (did not matter that he was an Austrian national living in Austria) – rights extended to his FMs – could rely on the FMWR – see below.

42
Q

Worker definition

A

∞ real and genuine activity’:

Levin - part-time worker

Lawrie-Blum – broad EU definition of employment relationship – ‘for a certain period of time a person performs services for and under the direction of another person for which he receives remuneration’

Bernini – short duration does not, of itself, exclude that employment from the scope of Art 45

43
Q

Ninni-Orasche

A

– ‘the national court must base its examination on objective criteria and assess as a whole all the circumstances of the case relating to the nature of both the activities concerned and the employment relationship at issue.’

44
Q

Raccannelli

A

doctoral student with an option to take on paid work but no obligation – claimed he was not treated in the same way as other doctoral students who were required to work for the university.
CJEU ruled: it is for the national court to determine objectively the existence of the constituent elements of any paid employment relationship, namely subordination and the payment of remuneration – required to verify the existence of the Union criteria for a ‘worker’ - should examine the substance of the contractual documents and arrangements to give them effect.

45
Q

Vatsouras and Koupatantze

A

the derogation in Art 24(2) CRD must be interpreted in accordance with Art 45(2) TFEU – benefits that facilitate access to the labour market are not ‘social assistance’ under Art 24(2) CRD (derogation permitting MSs to refuse social assistance to EUCs other than workers and the self-employed) – therefore the MS can only restrict access to such ‘work seeking’ benefits if the rule is non-discriminatory and justifiable on the basis of the ‘real link’ test and proportionate

46
Q

ITC

A

German State Employment Agency refused to pay a fee to ITC, a private sector recruitment agency, for a recruitment voucher on the grounds that the vouchers were only payable for jobs requiring compulsory social security contributions in Germany. CJEU accepted jurisdiction – a private sector recruitment agency has the task as a mediator or intermediary between those applying for and those offering employment. Recruitment agencies can, in certain circumstances rely on the rights granted directly to workers under Art 45 where they represent the applicant and seek employment on his behalf. Is a corollary of the worker’s right to take up an activity as an employed person, and to pursue such an activity in another MS. The rule applied by Germany might place nationals from other MSs at a disadvantage – or deter them from leaving their MS and discourage them from seeking employment in the potential host MS – was a prohibited restriction.

47
Q

Jany

A

Definition of self employed:

1) Provides a service
2) outside any relationship of subordination
3) under that person’s own responsibility
4) In return for remuneration.

48
Q

Groener

A

Indirect/non discrimination.

language requirements (see Art 3(1) FMWR)

49
Q

Hartmann

A

Indirect/non discrimination.

‘real link’ justification for indirect discrimination rejected – participation in the labour market of the host MS overrode residence requirement for child-raising allowance

50
Q

ITC

A

MSs have a broad margin of discretion in the field of social policy but justifications of a general nature are not sufficient to override the fundamental freedoms

51
Q

Commission v Netherlands

A

national law stating that grants for higher education need only be paid to students who had lived in the Netherlands for 3 of the last 6 years was found, in the case of children of workers, to violate the principle of equal treatment. Contrast with Bidar and Forster concerning the rights of EUCs.

52
Q

Cristini

A

What is a ‘social’ advantage? Interpreted very broadly:

includes benefits that are not directly linked to employment or are granted to the dependants of the worker

53
Q

Reina

A

What is a ‘social’ advantage? Interpreted very broadly:

childbirth loan

54
Q

Hartmann

A

What is a ‘social’ advantage? Interpreted very broadly:

child-raising allowance – – right under Art 7(2) FMWR extended to spouse of a worker not resident in the MS where her husband was employed – the worker was a national of a MS and had exercised right of free movement to work in the host MS even if not to reside there. The allowance enabled him to work while his wife looked after the child! The family as a whole benefited and it was therefore a ‘social advantage’.

55
Q

Commission v Netherlands

A

What is a ‘social’ advantage? Interpreted very broadly:

funding for studies abroad

56
Q

Saint Prix

A

retention of the status of a worker where a worker ‘is temporarily unable to work as the result of an illness or accident’.

57
Q

Baumbast

A

applies if a child of the migrant worker wishes to attend educational courses in the host MS even if the migrant worker no longer resides or works in that MS, or if the parents are divorced as otherwise the children would be deprived of right granted to them by the EU legislature. Therefore Art 10 FMWR provides an independent right of residence for the child to enable him/her to access the educational system of the host MS - also, referred to Art 8 ECHR on the right of respect for family life.

58
Q

Di Leo

A

equal treatment right – entitled to a study abroad grant on the same conditions as those applying to the children of nationals of the host MS

59
Q

Giersch

A

in a case concerning children of frontier workers, the granting of financial aid for higher education studies should not be conditional upon residence by the student in that Member State. The Member State in question was Luxembourg and the relevant legislation was found to give rise to a difference in treatment, amounting to indirect discrimination.

60
Q

Noémie Depesme,

A

a child may be regarded as the child of a step-parent for the purposes of a cross-border social advantage.

61
Q

Ibrahim

A

the right of residence extends also to the parent who is the child’s ‘primary carer’ regardless of their nationality. The purpose is to enable the children of the worker to independently access the educational system of the host MS even if the child commences education after the worker has left that MS. Hence, the right of residence of the child and that of the parent who has actual custody of the child are not affected by the death or departure of the worker – this is now expressly covered by Art 12(3) CRD. There is no age limit for the rights conferred on the child by Art 10 FMWR. Even if the child is over the age of majority in the host MS, the rights of the parent who has actual custody may extend beyond that age of the child continues to need the presence and care of that parent in order to be able to pursue and complete his or her education – so could include higher education if this requirement is satisfied. It is not conditional on self-sufficiency and therefore conditions in the CRD referring to ‘sufficient resources’ do not apply when the child of the worker is exercising his/her rights under Art 10 FMWR.

62
Q

Commission v Belgium (Public Services)

A

Restrictive interpretation of the public service exemption:

the proportionality principle applies – does not cover all work in the public sector – a functional test applies – only safeguards essential national interests.

63
Q

Factortame

A

What is ‘establishment’?

‘The actual pursuit of an economic activity through a fixed establishment in another Member State for an indefinite period’

64
Q

Sodemare

A

For how long?

presence in another MS must be ‘stable and continuous’

65
Q

Reyners

A

The establishment guarantee in Art 49 is directly effective:

66
Q

Gebhard

A

Services are temporary – establishment is permanent.

Thus, permanence is the key feature of establishment

measures liable to hinder or make less attractive the exercise of fundamental freedoms must fulfil:

National rules which hinder or make less attractive the exercise of the fundamental freedom of establishment violate the TFEU unless they are justified:

1) Applied in a non-discriminatory way.
2) justified by imperative requirements in the general interest
3) suitable for securing the attainment of the objective which they pursue
4) no go beyond what is necessary.

67
Q

Reyners

A

requirement that a lawyer must have Belgian nationality to practice as an advocate was found to be a restriction in breach of Art 49 – rules must place the free mover on an equal footing – amounted to direct discrimination. It could not be justified under Art 51 or 52. As it was a case of direct discrimination only Treaty-based justifications were available to Belgium – same general rule for goods and persons.

68
Q

Thieffry

A

refusal of entry by a Belgian lawyer to the French Bar as he did not have a French diploma at the required level was a restriction incompatible with the freedom to establish. He did have a Belgian diploma that was recognised by the French authorities as equivalent to the French diploma – therefore refusal was discriminatory.

69
Q

Heylens

A

MSs are entitled, in the absence of harmonisation, to regulate the knowledge and qualifications necessary to pursue a particular occupation, however: ‘the procedure for the recognition of equivalence must enable the national authorities to assure themselves, on an objective basis, that the foreign diploma certifies that its holder has knowledge and qualifications which are, if not identical, at least equivalent to those certified by the national diploma … that assessment of the equivalence of the foreign diploma must be effected exclusively in the light of the level of knowledge and qualifications which its holder can be assumed to possess in the light of that diploma, having regard to the nature and duration of the studies and practical training which the diploma certifies that he has carried out.’ Furthermore where employment is dependent on possession of diploma, it must be possible for a national of a MS to obtain judicial review of a decision of the authorities of another MS.

70
Q

Micheletti

A

A MS cannot refuse to accord rights under art 49TFEU to a national of another MS on the ground that the national also holds the nationality of a third country,

71
Q

Gebbard

A

Court adopted the concept of non-discriminatory restrictions on the right of establishment.

72
Q

Heylens

A

MS entitled in absence of harmonisation to regulate the knowledge and qualifications necessary. But where foreign diploma certifies that holder has knowledge/qualifications which are equivalent there needs to be an assessment about how much that holder has knowledge, regarding nature and duration of studies and practical training .

Art 49 imposes a precise obligation on national authorities of the host MS to examine thoroughly the basis for the professional qualifications held by a person seeking to establish themselves in that MS, to inform the person of the reasons why the qualification is not accepted and to respect their rights in the process.

73
Q

Rubino

A

The Court of Justice has interpreted the term ‘regulated profession’ narrowly:

university lecturer not a regulated profession in Italy