Summary European Law
Summary for the course European Law [RGBUIER003]
provided at Utrecht University, including the following topics:
Freedom of Establishment, Freedom to Provide Services, The
Services Directive Cartel Prohibition, Prohibition of Abuse of the
Dominant position, Free Movement of Workers, Free Movement
of Persons, Equal Treatment in Employment, The Effect of Equal
Treatment Law, European Citizenship, The Area of Freedom,
Security and Justice, The European Arrest Warrant.
European Law 2022-2023
,Table of contents
Week 1 – Freedom of Establishment and Freedom to Provide Services ............................ 3
Week 2 – Competition Law I ............................................................................................................ 6
Week 3 – Competition Law II ........................................................................................................... 9
Week 4 – Free Movement of Workers and Persons ................................................................ 12
Week 5 – Equal Treatment in Employment ................................................................................ 15
Week 6 – European Citizenship .................................................................................................... 19
Week 7 – The Area of Freedom, Security and Justice ............................................................ 22
Pagina 2 van 24
,Week 1 – Freedom of Establishment and Freedom to Provide
Services
This first week is about the freedom of establishment and services. This is one of the four
freedoms established by the European Union. To assess whether an action is in breach with
EU law the following three questions have to be answered.
Question 1: Does the dispute fall under the scope of EU law, and what law is
applied?
On this topic two subtopics can be distinguished. Firstly, it is important to assess whether EU
law as a whole is applicable. After that the applicable law should be distinguished.
For the first part it is important that someone fulfils the personal scope. This requires that he
or she is a national from a Member State of the European Union. For the material scope it is
important that the dispute holds a cross-border element. Lastly it is important that there is an
economic activity. This is any activity that includes a type of payment, it might also be payment
in data. It follows from the Josemans case that this economic activity has to be a lawful
activity also.
Furthermore, it needs to be distinguished which law should be applied, article 49 on the
freedom of establishment or article 56 on the freedom of services. According to the Gebhard
case an establishment is allowing a Community 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 within the Community
in the sphere of activities as self-employed persons.
A provider of services however is to pursue his activity in another Member State on a
temporary basis. This can be determined not only of the duration of the provision of the
service, but also of its regularity, periodicity or continuity.
Question 2: What is the nature of the restriction?
There are three types of restrictions. The first one is a directly discriminatory restriction. With
this type of discrimination there are different rules based on nationality.
The second type is indistinctly applicable measures. This is a rule that is applicable to
everyone, but the result is that market access is less attractive for foreigners.
The third category, indirect discrimination, holds that the rule is applicable to everyone but is
harder to fulfil for foreigners.
Question 3: Is there a justification possible for that specific restriction?
Justification might be possible. The first type of justifications are the treaty exceptions. They
can be found in articles 51 and 52 of the TFEU. These are applicable for services too, which is
stated in art. 62 TFEU.
A restriction can only be justified by the Treaty Exceptions on grounds of public policy, public
security or public health. An example of public policy is the protection of the consumer or the
protection against unemployment. A direct discriminatory measure can only be justified on
these grounds.
Pagina 3 van 24
, An indirectly discriminatory measure, however, can also be justified by the rule of reason. This
can be found in paragraph 37 of the Gebhard case. In this type of justification, the justification
should ground on a public non-economic interest. The scope for this justification is way
broader, as it is an open-ended list. It is also important to note that the Rule of Reason
requires that there has not been harmonization of that topic.
Both types of justification, the Treaty Exceptions and the Rule of Reason, have to fulfil three
other requirements. The measure should be suitable, necessary and stricto sensu. Suitable
means that the measure can reach the interest aimed. A measure is necessary when there is
no other less restrictive measure possible. And the proportionality stricto sensu means that
there needs to be a weighting of interest.
The services directive
The services directive is a more specific rule than the overall provisions of articles 49 and 56
TFEU. However, the services directive might also be applicable to the freedom of
establishment. The directive only applies in cases where there is a service or establishment in
a Member State. This can be found in article 2(1) of the directive. Article 2(2) gives an
overview of what is not included in the scope of this directive. You should always check
whether your service is named in this list.
For the freedom of establishment, the directive gives an authorization scheme in the articles
9-13. Furthermore, in article 14 a blacklist is found. These things named in the blacklist are
always prohibited and therefore cannot be justified. Art. 15 gives a grey list, this is also a
closed list, but this can be justified if the requirement is not discriminatory, it is necessary and
it is proportional.
In article 16(1), which is in the chapter of freedom to provide services, there is an open-ended
grey list. These requirements can be justified when the requirement is non-discriminatory,
necessary and proportional. Article 16(2) gives a blacklist of requirements that cannot be
justified.
Some services are not applicable to article 16, these can be found in art. 17 of the directive.
Case Law
Gebhard: In this case the Court distinguishes between establishment and services. The Court
decided that an establishment has to handle on a stable and continuous basis. A service on the
other hand has a temporary nature. This can be decided not only by the duration of the
provision of the service, but also of its regularity, periodicity or continuity. In paragraph 37 the
court finds the Rule of Reason exception applicable to indistinctly applicable measures.
Therefore, the restriction must be applied in a non-discriminatory manner; they must be
justified by an aim of public non-economic interest; it must be suitable and it must not go
beyond what is necessary.
Josemans: In this case the Court decided that the requirement of economic activity for the
personal scope of EU law also includes that the activity is lawful. Only if the economic activity
is lawful, EU law is applicable. Furthermore, the Court stated that the objective of combating
drug tourism and the accompanying public nuisance is a possible objective for justification of a
restriction.
Schindler: In paragraph 25 of this ruling the Court states that the provision of lottery tickets
and advertisement of lottery tickets constitutes as a provision of services. Therefore, EU law is
Pagina 4 van 24
Summary for the course European Law [RGBUIER003]
provided at Utrecht University, including the following topics:
Freedom of Establishment, Freedom to Provide Services, The
Services Directive Cartel Prohibition, Prohibition of Abuse of the
Dominant position, Free Movement of Workers, Free Movement
of Persons, Equal Treatment in Employment, The Effect of Equal
Treatment Law, European Citizenship, The Area of Freedom,
Security and Justice, The European Arrest Warrant.
European Law 2022-2023
,Table of contents
Week 1 – Freedom of Establishment and Freedom to Provide Services ............................ 3
Week 2 – Competition Law I ............................................................................................................ 6
Week 3 – Competition Law II ........................................................................................................... 9
Week 4 – Free Movement of Workers and Persons ................................................................ 12
Week 5 – Equal Treatment in Employment ................................................................................ 15
Week 6 – European Citizenship .................................................................................................... 19
Week 7 – The Area of Freedom, Security and Justice ............................................................ 22
Pagina 2 van 24
,Week 1 – Freedom of Establishment and Freedom to Provide
Services
This first week is about the freedom of establishment and services. This is one of the four
freedoms established by the European Union. To assess whether an action is in breach with
EU law the following three questions have to be answered.
Question 1: Does the dispute fall under the scope of EU law, and what law is
applied?
On this topic two subtopics can be distinguished. Firstly, it is important to assess whether EU
law as a whole is applicable. After that the applicable law should be distinguished.
For the first part it is important that someone fulfils the personal scope. This requires that he
or she is a national from a Member State of the European Union. For the material scope it is
important that the dispute holds a cross-border element. Lastly it is important that there is an
economic activity. This is any activity that includes a type of payment, it might also be payment
in data. It follows from the Josemans case that this economic activity has to be a lawful
activity also.
Furthermore, it needs to be distinguished which law should be applied, article 49 on the
freedom of establishment or article 56 on the freedom of services. According to the Gebhard
case an establishment is allowing a Community 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 within the Community
in the sphere of activities as self-employed persons.
A provider of services however is to pursue his activity in another Member State on a
temporary basis. This can be determined not only of the duration of the provision of the
service, but also of its regularity, periodicity or continuity.
Question 2: What is the nature of the restriction?
There are three types of restrictions. The first one is a directly discriminatory restriction. With
this type of discrimination there are different rules based on nationality.
The second type is indistinctly applicable measures. This is a rule that is applicable to
everyone, but the result is that market access is less attractive for foreigners.
The third category, indirect discrimination, holds that the rule is applicable to everyone but is
harder to fulfil for foreigners.
Question 3: Is there a justification possible for that specific restriction?
Justification might be possible. The first type of justifications are the treaty exceptions. They
can be found in articles 51 and 52 of the TFEU. These are applicable for services too, which is
stated in art. 62 TFEU.
A restriction can only be justified by the Treaty Exceptions on grounds of public policy, public
security or public health. An example of public policy is the protection of the consumer or the
protection against unemployment. A direct discriminatory measure can only be justified on
these grounds.
Pagina 3 van 24
, An indirectly discriminatory measure, however, can also be justified by the rule of reason. This
can be found in paragraph 37 of the Gebhard case. In this type of justification, the justification
should ground on a public non-economic interest. The scope for this justification is way
broader, as it is an open-ended list. It is also important to note that the Rule of Reason
requires that there has not been harmonization of that topic.
Both types of justification, the Treaty Exceptions and the Rule of Reason, have to fulfil three
other requirements. The measure should be suitable, necessary and stricto sensu. Suitable
means that the measure can reach the interest aimed. A measure is necessary when there is
no other less restrictive measure possible. And the proportionality stricto sensu means that
there needs to be a weighting of interest.
The services directive
The services directive is a more specific rule than the overall provisions of articles 49 and 56
TFEU. However, the services directive might also be applicable to the freedom of
establishment. The directive only applies in cases where there is a service or establishment in
a Member State. This can be found in article 2(1) of the directive. Article 2(2) gives an
overview of what is not included in the scope of this directive. You should always check
whether your service is named in this list.
For the freedom of establishment, the directive gives an authorization scheme in the articles
9-13. Furthermore, in article 14 a blacklist is found. These things named in the blacklist are
always prohibited and therefore cannot be justified. Art. 15 gives a grey list, this is also a
closed list, but this can be justified if the requirement is not discriminatory, it is necessary and
it is proportional.
In article 16(1), which is in the chapter of freedom to provide services, there is an open-ended
grey list. These requirements can be justified when the requirement is non-discriminatory,
necessary and proportional. Article 16(2) gives a blacklist of requirements that cannot be
justified.
Some services are not applicable to article 16, these can be found in art. 17 of the directive.
Case Law
Gebhard: In this case the Court distinguishes between establishment and services. The Court
decided that an establishment has to handle on a stable and continuous basis. A service on the
other hand has a temporary nature. This can be decided not only by the duration of the
provision of the service, but also of its regularity, periodicity or continuity. In paragraph 37 the
court finds the Rule of Reason exception applicable to indistinctly applicable measures.
Therefore, the restriction must be applied in a non-discriminatory manner; they must be
justified by an aim of public non-economic interest; it must be suitable and it must not go
beyond what is necessary.
Josemans: In this case the Court decided that the requirement of economic activity for the
personal scope of EU law also includes that the activity is lawful. Only if the economic activity
is lawful, EU law is applicable. Furthermore, the Court stated that the objective of combating
drug tourism and the accompanying public nuisance is a possible objective for justification of a
restriction.
Schindler: In paragraph 25 of this ruling the Court states that the provision of lottery tickets
and advertisement of lottery tickets constitutes as a provision of services. Therefore, EU law is
Pagina 4 van 24
