Establishment Cases Flashcards Preview

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Flashcards in Establishment Cases Deck (31):
1

Reyners v Belgium

Art 49 right of establishment is directly effective horizontally and vertically

2

Gebhard

National rules that might hinder exercise of fundamental freedoms must be:
1 applied in non-discriminatory way
2 justified in general interest
3 suitable for attainment of their objective
4 proportionate to attaining objective

ECJ uses broad interpretation

3

Thieffry

- demonstrates Art 49 is directly effective
- MS must recognise adequate professional qualifications

4

Steymann

Establishment is without a forseeable limit to its duration

5

Klopp

- Rule preventing members of Paris bar maintaining offices in other states caught because it stops German lawyers applications for membership
- Rule was applied without discrimination to all members but still had indirectly discriminatory effect

6

Thieffry v Cour de Paris

Need mutual recognition of equivalence of qualificaitons to ensure adequacy of qualifications

7

UNECTEF v Heylens

MS entitled to assure themselves on objective basis of equivalence of foreign diploma exclusively in light of level of knowledge and qualifications

8

Vlassopoulou

His skills equalled national requirements so had to be recognised.
- National authorities must take into account the education, training, knowledge, acquired skills, of applicant and compare them to those required by national qualification
- if a MS has allowed an individual to already practice it is too late to complain about their qualifications
Where member state already allows individual to practise job or profession it is too late to complain about qualifications.

9

Fernandez de Bobadilla

Partial equivalence of qualifications entitles the state to require full qualifications BUT must also take into account any knowledge gained by a course of study or work experience

10

Hugo Fernando Hocsman

Extends Bobadilla approach to situations where a profession is covered by EU law

11

Haim v Kassenaertzliche

Period of training makes up for lack of minimum requirement considered necessary by member state

12

Tawil Albertini

If a non EU qualification has been recognised by some MS, it doesnt automatically mean its recognised by others

13

Caixa Bank France

Test of obstacle to freedoms widened to "anything which should prohibit impede or render less attractive"

14

Asscher

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.
NO objective differences here

15

Knoors v Secretary of State for Econ affairs

- returned to his home MS to practice using a qualification from another MS
- So long as there is a directive in an area allowing the activity on possession of certain qualifications, the MS shall accept as sufficient evidence of ability the fact that the activity in question has been pursued in another member state

16

Broekmuellen

MS must follow directive setting out professional standards and ignore their own national standards

17

Wilson v Luxembourg

- Prior test of linguistic knowledge is precluded in legal profession
- if they are incapable of speaking the language this will be a breach of professional conduct.

18

Steinhauser

Company defined under Art 54 TFEU: must be profit making and non-profit making firms are excluded

19

Viking Line

can balance workers right to strike against companies' rights ti establish overseas.
- use of strike right must be proportional conisidering other options

20

Daily Mail and General Trust

Companies enjoy same establishment rights as individuals. discrimination can apply to companies

21

Centros Ltd

Where company forms under law of MS and was not allowed to form branch in another MS, this is breached their of Right of establishment

22

Commission v France

French company branches in other states had branches taxed by French state as if they were in France but received none of the benefits
- breached Art 49

23

Marks and Spencer

Tax issues. Objectively justifiable action but still disproportionate breach of Art 49

24

Thijssen

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

25

Commission v Italy (Freedom of Establishment)

Italian rules allowing only Italians jobs in tourism, pharmacies and journalism breach Art 49, Art 56 and Art 45

26

"establishment"

Gebhard:
allowing an individual to participate on a stable and continuous basis in the economic life of a member state other than his state of origin.

Consider
-duration
- regularity
- periodicity
- continuity

27

D89/48

- mutual recognition of professional qualifications requiring a higher education diploma in a number of professions

28

D98/5

mutual recognition of legal qualifications

29

Art 49

Freedom of Establishment

30

Factortame No 1

buying premises or licenses in another MS is evidence of establishment

31

D2005/36

recognition of qualifications leading to a recognised profession is to be on the same basis for a migrant EU citizen as for a national EU citizen