WEEK 1
FREEDOM OF ESTABLISHMENT & FREEDOM TO PROVIDE
SERVICES
READING
Literature
● Barnard & Peers, Chapter 14: Free movement of legal persons and the provision of services
● Barnard & Peers, Chapter 16: Exceptions to the free movement rules
Legislation and cases
● Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on
services in the internal market (Services Directive).
● Case C-55/94 (Gebhard)
● Case C-384/93 (Alpine Investments)
● Case C-372/04 (Watts)
● Case C-137/09 (Josemans)
QUESTION 1
John Kerr is a famous doctor who holds a medical biology PhD from Trinity College Dublin. Although he has
several years of experience and has extensively published in the area of postmenopausal birth, he cannot find a
job in the currently declining Irish job-market. Therefore, he starts to provide technical and medical advice to an
Italian private clinic in Milano where it is possible for postmenopausal women to give birth. John goes to Milano
quite often. There, he analyses specific cases and organises meetings with the staff on these cases. The clinic
pays him a small fortune for every case he works on. The clinic also provides him with the necessary facilities
and equipment. John is further completely independent to organise his activities.
Explain which Treaty freedom John exercises.
John exercises the freedom to provide services (art. 56 TFEU). Article 56 requires economic activity and a
degree of permanence by the company in the host state.
First, there must be a service. Article 57 TFEU explains what services are. In the case Watts par. 86, the CJEU
decided that medical services provided for consideration fall within the scope of the provisions on the
freedom to provide services.
Secondly, the service must normally be provided for remuneration. John gets a small fortune for every case
he works on, so that is fulfilled.
Thirdly, the services must be temporary, this is decided in the case Gebhard (par. 25/26). John only works in
Italy and goes back to Ireland when he is not working. For establishment there need to be a stable and
continuous base. That is not the case here, because John only travels to Italy for his work and then goes back
to Ireland. For the freedom of services, it is enough that the activity is on temporary basis. The relevant
elements of service are not only the duration of the provision of the service, but also regularity, periodicity or
continuity. A fifth element is infrastructure (par. 27). John travels to Milan quite often, so the requirements of
regularity, periodicity and continuity are fulfilled.
Finally, there has to be a cross-border situation, it does not apply in internal situations. John goes from
Ireland to Italy, so, there is a cross-border situation in this case. All requirements are fulfilled, so John
exercises his freedom to provide services.
You could also argue the free movement of workers. When you look at the free movement of services, you
should always ask the question if it is an employee. The free movement of workers is part of the free
movement of persons. John works independently, he does not have a boss, he is his own boss. If he had a
boss, he would probably have an employment contract. If John had a boss, he would be a worker. He is a self-
employed person, which means he is either exercising his freedom to provide services or his freedom of
establishment.
There is no freedom of establishment here, because John works on case basis and there is no real stability.
FREEDOM OF ESTABLISHMENT & FREEDOM TO PROVIDE
SERVICES
READING
Literature
● Barnard & Peers, Chapter 14: Free movement of legal persons and the provision of services
● Barnard & Peers, Chapter 16: Exceptions to the free movement rules
Legislation and cases
● Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on
services in the internal market (Services Directive).
● Case C-55/94 (Gebhard)
● Case C-384/93 (Alpine Investments)
● Case C-372/04 (Watts)
● Case C-137/09 (Josemans)
QUESTION 1
John Kerr is a famous doctor who holds a medical biology PhD from Trinity College Dublin. Although he has
several years of experience and has extensively published in the area of postmenopausal birth, he cannot find a
job in the currently declining Irish job-market. Therefore, he starts to provide technical and medical advice to an
Italian private clinic in Milano where it is possible for postmenopausal women to give birth. John goes to Milano
quite often. There, he analyses specific cases and organises meetings with the staff on these cases. The clinic
pays him a small fortune for every case he works on. The clinic also provides him with the necessary facilities
and equipment. John is further completely independent to organise his activities.
Explain which Treaty freedom John exercises.
John exercises the freedom to provide services (art. 56 TFEU). Article 56 requires economic activity and a
degree of permanence by the company in the host state.
First, there must be a service. Article 57 TFEU explains what services are. In the case Watts par. 86, the CJEU
decided that medical services provided for consideration fall within the scope of the provisions on the
freedom to provide services.
Secondly, the service must normally be provided for remuneration. John gets a small fortune for every case
he works on, so that is fulfilled.
Thirdly, the services must be temporary, this is decided in the case Gebhard (par. 25/26). John only works in
Italy and goes back to Ireland when he is not working. For establishment there need to be a stable and
continuous base. That is not the case here, because John only travels to Italy for his work and then goes back
to Ireland. For the freedom of services, it is enough that the activity is on temporary basis. The relevant
elements of service are not only the duration of the provision of the service, but also regularity, periodicity or
continuity. A fifth element is infrastructure (par. 27). John travels to Milan quite often, so the requirements of
regularity, periodicity and continuity are fulfilled.
Finally, there has to be a cross-border situation, it does not apply in internal situations. John goes from
Ireland to Italy, so, there is a cross-border situation in this case. All requirements are fulfilled, so John
exercises his freedom to provide services.
You could also argue the free movement of workers. When you look at the free movement of services, you
should always ask the question if it is an employee. The free movement of workers is part of the free
movement of persons. John works independently, he does not have a boss, he is his own boss. If he had a
boss, he would probably have an employment contract. If John had a boss, he would be a worker. He is a self-
employed person, which means he is either exercising his freedom to provide services or his freedom of
establishment.
There is no freedom of establishment here, because John works on case basis and there is no real stability.
