free movement of services and freedom of establishment Flashcards
(7 cards)
distinction between establishment and services
persons exercising the right to freedom of establishment- activities governed by EU law and by the legal system of the MS that host their activity
providing services-regulated by EU law and by the laws of their home state (service travels not business)
-distinction is that services is temporary- Commission v Germany, and establishment concern economic activity which is permaent- R v SOS for transport
-mandatory requirement and justification systems apply to breaches (proportionate, non discriminatory, in pusuit of legitimate objectives, or being classes as a derogation from the relevant articles)
-has vertical direct effect in the narrow sense, interpreted expansively to include civil society associations- seamens union
freedom of establishment
article 49- the right of natural and legal persons to set up and manage an undertaking or their subsidiaries in other MS
-measure infringing may benefit from a derogagtion under art 51 and 52 TFEU (public policy, security or health)
-natural and legal persons can invoke rights
-art 54- prohibition of discrimination for companies
-art 55- prohibition of discrimination for natural individuals in connection with their involvement in companies
-direct effect in the narrow sense- Reyners v Belgium
-applicable to organs of the state and private parties where they exercise some kind of regulatory power over a sphere of economic activity
nature of protection
-direct discrimination against establishments on ground of national origin are prohibited
-possible that discriinatory measures can be subject to derogation
-indirect discrimination prohibited where no objective justification
-rule restricting access to the market- article 49, Gebhard
derogagtions and justifications
-express derogations relating to activities involving the exercise of official authority- article 51 TFEU, and to measures taken on ground of public policy, security and health- art 52 TFEU
- Art 51 derogagations- narrowly constued and retructed to core activites of public authorities rather than those deemed auxilliary and prepatory commission v germany
-public interes justifications- availble to justify possible infringement in relation to measures which are indirectly discriminatory or which restrict the cross boarder operation of companies
Justifications that have been
accepted include:-
1. The protection ofconsumers (CaixaBankFrance, 2004)
2. The protection of the interests of creditors, minority shareholders, employees and
the taxation authorities (Überseering, 2002)
3. Road safety and environmental protection (Attanasio, 2010);
4. The prevention of fraud and incitement to irresponsible gambling (Placanica,
2007)
5. Ensuring high standards of university education (Neri, 2003).
evaluation
-as a result of the courts interpretation of the treaties there has been a pronounced liberalization of the rules surrounding the transnational operation of companies in the European area (the CJEU through interpreting the EU treaties reduced or removed barriers to companies operating across national borders wirth the EU)
-demonstrated in
1. the initial decision to grant direct effect to these provisions in Reyners
2. the decision in centros (clarified the point that freedom of establishment rights could be used to take advanatge of differences between legal regimes)
3. the development of the market access concept regarding infringements
freedom of services
-basic right to provide services in the host country- article 56(1) TFEU (also include recieving services Luisi 1984)
(also applies where no one physically crosses the border- Financiern 1995)
-services- defined in broad terms article 57 TFEU
- 2 key elements to article-
1. the service is provided for numeration and
2. the services must be supplied on a temporary basis
-prohibitions against dicrimination- art 57(3) and 61 TFEU and
-applies to EU and EEA countries
-has direct effect- Binsbergen 1974- can give rise to rights that can be invoken in national courts
- aver vertical and horizontal (where an entitiy can devlop regulatory control of a certain area of economic activity- Laval 2007)
derogations and justifications
-derogations under art 52 TFEU of the freedom of establishment and extended to freedom of service by art 62 TFEU
-derogatoon related to the exercise of official authority is also extended to freedom of services via art 62
-also possible to justify non discriminatory measures that restrict market access via the mandatory requirement recogise by the CJEU
