1
European law lecture 1 Freedom of establishment
& freedom to provide services
Introduction
Establishment & services, what can we think about?
- Natural persons and legal persons
Why relevant?
- Services are crucial for the economy
- Process of
- digitalization, datafication and the digital single market
- Digital goods, like smartphones applications
- Growing importance of e-commerce
Where can we find the rules on establishment & services?
- Article 49 TFEU - establishment
- Article 56 TFEU - services
- Article 51 & 52 TFEU - treaty exceptions, also via article 62 TFEU for services
- Service directive 2006/123/EC → elaborates the treaty
- Specific directives & regulations → also apply on services
The four freedoms: goods, persons, services and capital.
Commonalities in establishment & services
● Economic & lawful activities
- Provided for remuneration (services: article 57 TFEU)
❏ Including medical services → case law
❏ Including services that are not paid directly by consumers but by 3rd
parties (data-advertising)
- No unlawful activities
● Interstate element (but service directive..)
● Invoke vis-a-vis private actors (limited) horizontal direct effect
● Distinctly applicable and indistinctly applicable measures prohibited →
market access
● Treaty exceptions & public interest justification (rule of reason)
The notion of ‘establishment’
- Participation on a stable and continuous basis in economic life of MS (Gebhard, para
25) (definition of establishment)
- Establishment vs service (Gebhard)
● Community and stability vs provision of a service on a temporary basis (para
25-27)
- Establishment vs workers
● Independence, no subordination
1
, 2
● What about micro-entrepreneurs, on-demand workers, freelancers of
contractors?
● Particularly relevant in platform economy
(difference between service and establishment is the time it is provided)
What is prohibited on the basis of article 49 TFEU?
(natural persons)
- Market access rights
● Discrimination prohibited
● All restrictions on market access (Gebhard, para 37)
➔ Rules relating to professional titles
➔ Rules requiring retailers to select distinct spaces for domestic
products.
➔ Summary of case law in this paragraph
➔ The court goes further than the discrimination
➔ These rules limit the free flow of goods and limits retailers and that is
prohibited by article 49 TFEU
- Migration rights
● Directive 2004/38
● Right to cross the border and provide your services there.
(Legal persons (art 54 TFEU) → Right of departure & right of access to the market
of the host state)
Can a breach be justified?
- Treaty exceptions
● Article 51 and 52 TFEU
❖ E.g. Official authority (reyners, dutch men wants to be a
lawyer in Belgium) → direct and specific connection with
official authority → has to be interpreted restrictively
❖ Public policy, public security, public health
❖ Dérogations have to be interpreted restrictively
- Public interest justification
● Rule of reason (Gebhard, para 37)
● Conditions for exceptions:
❏ Public, non-economic interest
❏ Proportionality principle: suitable & proportionate → no less restrive
measure available
❏ No harmonisation
- see also Barnard & Peers p455-456The notion of ‘service’
Article 57 TFEU
- Remuneration (including data)
- Different kinds of cross-border provision of services
- Non-tangible (as compared to goods) → if free movement of goods aspect
is entirely secondary to services → free movement of services will apply
(the example of a bar)
- Temporary character (Gebhard) as compared to establishment
- Residual character→ (art. 57 TFEU) (a bit outdated)
2
, 3
What is prohibited on the basis of article 56 TFEU?
market access rights
- Discrimination prohibited
- Prohibited is each measure that direct affects access to the market in services in
other MS (see Aline investments, para 38)
● Example: prior authorization for the reimbursement of the costs of a medical
treatment in another MS (see Watts para 98)
● Example: mutual recognition of professional qualifications of health workers
Migration rights
- Directive 2004/38
Can a breach be justified?
Treaty exceptions
- Article 51 and 52 TFEU
❖ Official authority
❖ Public policy, public security, public health
❖ Derogations have to be interpreted restrictively (Josemans, drugs Maastricht)
Public interest justifications
- Rule of reason
❖ E.g. protection reputation financial market (Alpine investments)
❖ Conditions for the exceptions:
❏ Public, non-economic interest
❏ Proportionality principle: suitable & proportionate → no less
restrive measure available
❏ No harmonisation
Concluding remarks
- broad applications of the prohibitive rules: direct & indirect discriminations and
restrictions on market access are prohibited
- Unless justification - treaty exceptions & public interest justifications
- Broad approach → allows to bring on board other fundamental rights (see
Commission v Hungary) Or to let the freedoms penetrate areas where MS
are primarily competent
Services directive - establishment & services
Art. 2 SD: scope of application
- Certain activities are excluded from the scope of application
- Services that are excluded → treaty rules on establishment (49 TFEU) &
services (55 TFEU) apply
Chapter III: establishment
- Article 9 SD → codification of case law: market access (Gabhard)
- Also applies to internal situations
Chapter IV: Services
- Article 16 SD → Codification of case law: market access, but more limited
possibilities for MS to restrict free movement of services (e.g. art. 16(1)
and (3) SD)
3
, 4
- Retail trade in goods → services
- This one does not apply to internal situation
4
European law lecture 1 Freedom of establishment
& freedom to provide services
Introduction
Establishment & services, what can we think about?
- Natural persons and legal persons
Why relevant?
- Services are crucial for the economy
- Process of
- digitalization, datafication and the digital single market
- Digital goods, like smartphones applications
- Growing importance of e-commerce
Where can we find the rules on establishment & services?
- Article 49 TFEU - establishment
- Article 56 TFEU - services
- Article 51 & 52 TFEU - treaty exceptions, also via article 62 TFEU for services
- Service directive 2006/123/EC → elaborates the treaty
- Specific directives & regulations → also apply on services
The four freedoms: goods, persons, services and capital.
Commonalities in establishment & services
● Economic & lawful activities
- Provided for remuneration (services: article 57 TFEU)
❏ Including medical services → case law
❏ Including services that are not paid directly by consumers but by 3rd
parties (data-advertising)
- No unlawful activities
● Interstate element (but service directive..)
● Invoke vis-a-vis private actors (limited) horizontal direct effect
● Distinctly applicable and indistinctly applicable measures prohibited →
market access
● Treaty exceptions & public interest justification (rule of reason)
The notion of ‘establishment’
- Participation on a stable and continuous basis in economic life of MS (Gebhard, para
25) (definition of establishment)
- Establishment vs service (Gebhard)
● Community and stability vs provision of a service on a temporary basis (para
25-27)
- Establishment vs workers
● Independence, no subordination
1
, 2
● What about micro-entrepreneurs, on-demand workers, freelancers of
contractors?
● Particularly relevant in platform economy
(difference between service and establishment is the time it is provided)
What is prohibited on the basis of article 49 TFEU?
(natural persons)
- Market access rights
● Discrimination prohibited
● All restrictions on market access (Gebhard, para 37)
➔ Rules relating to professional titles
➔ Rules requiring retailers to select distinct spaces for domestic
products.
➔ Summary of case law in this paragraph
➔ The court goes further than the discrimination
➔ These rules limit the free flow of goods and limits retailers and that is
prohibited by article 49 TFEU
- Migration rights
● Directive 2004/38
● Right to cross the border and provide your services there.
(Legal persons (art 54 TFEU) → Right of departure & right of access to the market
of the host state)
Can a breach be justified?
- Treaty exceptions
● Article 51 and 52 TFEU
❖ E.g. Official authority (reyners, dutch men wants to be a
lawyer in Belgium) → direct and specific connection with
official authority → has to be interpreted restrictively
❖ Public policy, public security, public health
❖ Dérogations have to be interpreted restrictively
- Public interest justification
● Rule of reason (Gebhard, para 37)
● Conditions for exceptions:
❏ Public, non-economic interest
❏ Proportionality principle: suitable & proportionate → no less restrive
measure available
❏ No harmonisation
- see also Barnard & Peers p455-456The notion of ‘service’
Article 57 TFEU
- Remuneration (including data)
- Different kinds of cross-border provision of services
- Non-tangible (as compared to goods) → if free movement of goods aspect
is entirely secondary to services → free movement of services will apply
(the example of a bar)
- Temporary character (Gebhard) as compared to establishment
- Residual character→ (art. 57 TFEU) (a bit outdated)
2
, 3
What is prohibited on the basis of article 56 TFEU?
market access rights
- Discrimination prohibited
- Prohibited is each measure that direct affects access to the market in services in
other MS (see Aline investments, para 38)
● Example: prior authorization for the reimbursement of the costs of a medical
treatment in another MS (see Watts para 98)
● Example: mutual recognition of professional qualifications of health workers
Migration rights
- Directive 2004/38
Can a breach be justified?
Treaty exceptions
- Article 51 and 52 TFEU
❖ Official authority
❖ Public policy, public security, public health
❖ Derogations have to be interpreted restrictively (Josemans, drugs Maastricht)
Public interest justifications
- Rule of reason
❖ E.g. protection reputation financial market (Alpine investments)
❖ Conditions for the exceptions:
❏ Public, non-economic interest
❏ Proportionality principle: suitable & proportionate → no less
restrive measure available
❏ No harmonisation
Concluding remarks
- broad applications of the prohibitive rules: direct & indirect discriminations and
restrictions on market access are prohibited
- Unless justification - treaty exceptions & public interest justifications
- Broad approach → allows to bring on board other fundamental rights (see
Commission v Hungary) Or to let the freedoms penetrate areas where MS
are primarily competent
Services directive - establishment & services
Art. 2 SD: scope of application
- Certain activities are excluded from the scope of application
- Services that are excluded → treaty rules on establishment (49 TFEU) &
services (55 TFEU) apply
Chapter III: establishment
- Article 9 SD → codification of case law: market access (Gabhard)
- Also applies to internal situations
Chapter IV: Services
- Article 16 SD → Codification of case law: market access, but more limited
possibilities for MS to restrict free movement of services (e.g. art. 16(1)
and (3) SD)
3
, 4
- Retail trade in goods → services
- This one does not apply to internal situation
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