European Law Summary
Week V
Learning objectives:
Understand and apply EU legislation regarding free movement of economically active persons (focus
on self-employed people).
Understand the change in legislation occurring when a person moves from being a worker to being
self-employed.
Distinguish between service provision and establishment and apply either the relevant TFEU articles or
provisions from the Services Directive.
Freedom of Establishment and Freedom to Provide Services in EU law
The EU internal market guarantees the mobility of self-employed persons and businesses across MS. This is
mainly achieved through two freedoms under the TFEU:
Freedom of Establishment (art. 49-54 TFEU)
Grants individuals and companies the right to permanently carry out economic activities in another MS under
the same conditions as nationals.
Key points:
Must involve migration to another MS
Activity must be genuine and effective, not marginal/incidental
Must be self-employed
For companies: art. 54 excludes non-profit entities – because intention to make profit must exist.
Case law:
Gebhard: establishment = stable and continuous participation in another economy.
Freedom to provide services (art. 56-62 TFEU)
Prohibits restrictions on cross-border services provided for remuneration, unless another freedom applies first.
Services cover a wide range of activities (art. 57), if they are economic in nature.
Key points:
Applies to service providers and recipients.
Can cover services provided without physical movement (e.g. online, by phone).
3 situations:
o Provider moves to another MS
o Recipient moves to another MS
o Service itself crosses borders
Case law:
Alpine Investments: Dutch cold-calling ban restricted services under art. 56, though justified.
Both freedoms require a cross-border element. If the situation is purely internal to one Ms, EU law does not
apply.
Restrictions on the Freedom of Establishment & Freedom to Provide Services
The roadmap helps determine whether an action violates art. 49 TFEU (establishment) of art. 56 (services).
STEP 1: can EU law apply?
Personal scope:
o Natural persons: nationals of an EU MS
o Legal persons: corporate seat in an EU MS.
Material scope:
o Cross-border element
o Economic activity
If the good/service is prohibited under EU law (e.g. Josemans – drugs in a coffeeshop), EU freedoms
cannot be invoked.
Week V
Learning objectives:
Understand and apply EU legislation regarding free movement of economically active persons (focus
on self-employed people).
Understand the change in legislation occurring when a person moves from being a worker to being
self-employed.
Distinguish between service provision and establishment and apply either the relevant TFEU articles or
provisions from the Services Directive.
Freedom of Establishment and Freedom to Provide Services in EU law
The EU internal market guarantees the mobility of self-employed persons and businesses across MS. This is
mainly achieved through two freedoms under the TFEU:
Freedom of Establishment (art. 49-54 TFEU)
Grants individuals and companies the right to permanently carry out economic activities in another MS under
the same conditions as nationals.
Key points:
Must involve migration to another MS
Activity must be genuine and effective, not marginal/incidental
Must be self-employed
For companies: art. 54 excludes non-profit entities – because intention to make profit must exist.
Case law:
Gebhard: establishment = stable and continuous participation in another economy.
Freedom to provide services (art. 56-62 TFEU)
Prohibits restrictions on cross-border services provided for remuneration, unless another freedom applies first.
Services cover a wide range of activities (art. 57), if they are economic in nature.
Key points:
Applies to service providers and recipients.
Can cover services provided without physical movement (e.g. online, by phone).
3 situations:
o Provider moves to another MS
o Recipient moves to another MS
o Service itself crosses borders
Case law:
Alpine Investments: Dutch cold-calling ban restricted services under art. 56, though justified.
Both freedoms require a cross-border element. If the situation is purely internal to one Ms, EU law does not
apply.
Restrictions on the Freedom of Establishment & Freedom to Provide Services
The roadmap helps determine whether an action violates art. 49 TFEU (establishment) of art. 56 (services).
STEP 1: can EU law apply?
Personal scope:
o Natural persons: nationals of an EU MS
o Legal persons: corporate seat in an EU MS.
Material scope:
o Cross-border element
o Economic activity
If the good/service is prohibited under EU law (e.g. Josemans – drugs in a coffeeshop), EU freedoms
cannot be invoked.
