Freedom of Establishment Flashcards
(30 cards)
Jany
An individual is acting in self-employment where they act:
- 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
Steymann
Activities carried out on a permanent basis or without foreseeable limit to duration fall within Art 49 TFEU.
Commission v Germany (Insurance Services)
Activities carried out by an undertaking in a MS on a permanent basis or without foreseeable limit to duration fall within Art 49 TFEU even if that presence 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.
Factortame II
Establishment involves ‘the actual pursuit of an economic activity through a fixed establishment in another MS for an indefinite period’.
Gebhard
The concept of establishment allows an EU national to ‘participate, on a stable and continuous basis, in the economic life of a Member State 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’.
The temporality of the activities should be determined in light of not only the duration of the provision of the service, but also its regularity, periodicity or continuity.
National measures which are liable to hinder or make less attractive the exercise of freedom of establishment constitute a restriction on that freedom.
Imperative Requirements
National measures which are liable to hinder or make less attractive the exercise of the freedom of establishment must satisfy 4 conditions to be justified:
- Must be applied in a non-discriminatory manner
- Must be justified by imperative requirements in the general interest
- Must be suitable for attaining the objective which they pursue
- Must not go beyond what is necessary to attain that objective.
Reyners
Direct Effect
Art 49 TFEU can have direct effect following the end of the transition period in 1961.
Official Authority Exemption
Defined official authority as:
‘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’.
Wouters
Art 49 applies to regulatory organisations and associations not governed by public law.
Viking Line
Art 49 can have horizontal direct effect
Commission v Greece
Road Traffic experts who appeared as witnesses in Court rooms are excluded from the official authority exemption.
Commission v Italy (Data Processing)
Design, programming and operation of data-processing systems for public authorities was held not to fall within the official authority exemption since it was of a technical nature.
Thijssen
The post of commissioner of insurance companies held not to fall within official authority exemption because it lacked the final powers to stop insurance companies from pursuing certain policies.
Auer
Art 49 cannot be relied upon in purely internal situations.
Knoors
Art 49 cannot be relied upon in purely internal situations.
Asscher
Art 49 can be relied on in the home state of a Member State national in the absence of a directive as long as there is a cross border element.
Thieffry
Indirect Discrimination
Art 49 prohibits indirect forms of discrimination.
Imperative Requirements
Established the principle that a restriction can be justified by an imperative requirement.
Mutual Recognition of Equivalent Qualifications in the Court of Justice
First established this principle.
Odre des Avocats Klopp
Art 49 prohibits indirect forms of discrimination.
Caixa Bank France
Any national measures which ‘prohibit, impede or render less attractive’ the pursuit of an occupation in more than one MS is sufficient to amount to a restriction under Art 49.
Commission v UK (Open Skies)
Derogations set out in Art 52 are regulated by the Treaty alone and by the general principles of EU law including the principle of proportionality.
Daily Mail
he MS in which the company is incorporated retains the right to determine the conditions of incorporation of that company and the conditions under which the company may transfer its central administration to another MS.
Segers
A company which satisfies the requirements of Art 54 may avail itself of the freedom, specifically provided for by Art 49, to set up agencies, branches or subsidiaries in another MS without restriction even if the company conducts no business of any kind in the MS in which it was incorporated but conducts its business solely through an agency, branch or subsidiary in another MS.
Centros
A company which satisfies the requirements of Art 54 may avail itself of the freedom, specifically provided for by Art 49, to set up agencies, branches or subsidiaries in another MS without restriction even if the company conducts no business of any kind in the MS in which it was incorporated but conducts its business solely through an agency, branch or subsidiary in another MS.
Inspire Art
A company which satisfies the requirements of Art 54 may avail itself of the freedom, specifically provided for by Art 49, to set up agencies, branches or subsidiaries in another MS without restriction even if the company conducts no business of any kind in the MS in which it was incorporated but conducts its business solely through an agency, branch or subsidiary in another MS.
Uberseering
A company which has been incorporated in accordance with the law of one Member State must be recognised as a valid company with legal capacity in other Member States.
Commission v Italy (Italian Housing)
Art 49 entitles nationals of a Member State who are exercising their freedom of establishment to have access to certain social rights on the same basis as nationals of the hose Member State.
