Freedom of movement of services and establishment: demonstrates the economic or commercial nature of the
activities performed.
Distinguishing between the different fundamental freedoms Humbel- Renumeration or payment is defined as
Movement of persons- Service providers, established ‘’consideration for the service provided’’ ‘
persons and workers involved in economic activities. Writh- Private education could constitute a service
Their movement in EU law is regulated by a different set when it is financed essentially out of private funds - by
of rules, based on the same rationale. students or their parents - and where the provider
Van Binsbergen- Rationale is the requirement of equal intends to make an economic gain.
treatment Schlinder- The importation of lottery advertisements
Workers and service providers- Distinguishing feature and tickets into a Member State with a view to the
between the free movement of workers and service participation by residents of that State in a lottery
providers is the provision of service in a self-capacity or operated in another Member State relates to a 'service'
under some else’s supervision within the meaning of the Treaty.
Services and establishment- Both provided on a self- SPUC v Grogan- Issuing information about the identity
employed basis. The feature that allows us to tell them and location of clinics in another Member State
apart is the length of the service provision providing abortion is not a ‘service’ since the
Gebhard- information was not distributed on behalf of an
Concept of establishment allows a national to economic operator established in another Member
participate on a stable and continuous basis in the State. But abortion performed in another Member State
economic life of another member state in the sphere of did constitute a service for the purpose of free
their activity as a self-employed person movement rules.
Provider of services moves to another Member State to Geraets- Smits and Peerbooms- Hospital service paid
pursue their activity there on a temporary basis for on the basis of an insurance system, sickness
Services and goods- Often goofs are supplied for insurance fund was considered to be a service
provision of services. In such scenarios the rules on
services must be applied. Temporary nature:
Cura Anaglen- A service consists of an economic activity
provided for consideration Third paragraph of Article 57 TFEU highlights the feature
which distinguishes services from establishment, it’s
temporary nature
Defining a service: Gebhard- Must be pursued on a temporary basis with
Article 56 TFEU- reference to the duration, regularity, periodicity or
Restrictions on freedom to provide services within the continuity
Union shall be prohibited Schnitzer- The decision whether an activity is a
temporary service provision or establishment is for the
Article 57 TFEU: national court to make on a case by case basis
Trojani- An activity carried out on a permanent basis, or
Services shall be considered where they are normally at least without a foreseeable limit to its length, would
provided for renumeration, in so far as they are not
not be considered as provision of service.
governed by the provisions relating to freedom of
movement for goods, capital and persons.
Cross border provision:
‘’In so far as they are not governed by the provisions
relating to freedom of movement for goods, capitals and Established in Article 56 of the TFEU, there must be an
persons shows that the provisions on free movement of element of crossing the border between different
services are residual in nature Member States for Freedom to Provide Services to be
Luisi and Carbone- They apply as long as the provision of applicable
goods, capital and persons do not apply Four scenarios:
Services shall in particular include The service itself moves from one Member State to
(a) activities of an industrial character; another;
(b) activities of a commercial character; The service provider moves
(c) activities of craftsmen; The service recipient-
(d) activities of the professions. Cowan:
Without prejudice to the provisions of the Chapter British tourist was mugged in Paris; under French law
relating to the right of establishment, the person only French residents were entitled to compensation for
providing a service may, in order to do so, temporarily
having been a victim of crime.
pursue his activity in the Member State where the
Court held that the fact that Mr Cowan had been in Paris
service is provided, under the same conditions as are
as a recipient of services resulted in the situation being
imposed by that State on its own nationals.
within the Treaty’s scope of application and that
What are services: excluding non-residents from the entitlement to
Remuneration: compensation was in breach of the non-discrimination
According to the first paragraph of Article 57 TFEU principle.
services ‘are normally provided for remuneration’. This
, Vestergarrd- cross-border element exists even if service Gourmet- a prohibition on advertising had a particular
provider and recipient are from the same state as long effect on the cross-border supply of advertising, given
as service is taking place in another MS the international nature of the advertising market.
Luis and Carbone: Treaty rules relate to the freedom to
receive services Freedom of establishment:
The rules regulating freedom of establishment concern
provision of services
Restrictions on free movement of services:
The main distinction is the length of the service
provision
Treaty prohibition on restricting the free movement of
Sodemare- Establishment is an economic activity that
services is also based on the rationale of abolishing
has to be pursued on a stable and continuous basis
discrimination
Prohibition of discrimination would include both Article 49 TFEU:
distinctly and indistinctly applicable measures
[..] restrictions on the freedom of establishment of
Gouda- Article 56 states the abolition of any
nationals of a Member State in the territory of another
discrimination against a person providing services on the
Member State shall be prohibited. Such prohibition
grounds of his nationality or the fact that he is
shall also apply to restrictions on the setting-up of
established in a Member State other than the one in
agencies, branches or subsidiaries by nationals of any
which the service is provided.
Member State established in the territory of any
FDA- Another example of direct discrimination. Spanish
Member State.
law required that in order to be granted a license to dub
Freedom of establishment shall include the right to take
foreign films film distributors should also distribute a
up and pursue activities as self-employed persons and
Spanish film at the same time.
to set up and manage undertakings, in particular
Gouda also confirmed that indirect discrimination is
companies or firms within the meaning of the second
prohibited under Article 56 TFEU
paragraph of Article 54, under the conditions laid down
Restrictions on the freedom to provide services field
for its own nationals by the law of the country where
may arise in the second place as a result of the
such establishment is effected.
application of national rules which affect any person
Freedom of establish applies to both natural (actual
established in the national territory to persons providing
people) and legal persons (companies)
services established in the territory of another Member
State who already have to satisfy the requirements of What is an establishment:
that State’s legislation.
Indirect discrimination can take the form of dual burden Factortame- Establishment means the actual pursuit of
rules, e.g. a requirement to be established before an economic activity throughout a fixed establishment in
providing a service another Member State for an indefinite period’.
Insurance Services- A person or a business must have a
Market Access: physical presence in a foreign Member State in a
permanent or semi-permanent basis
The court’s case law now includes the market access test in
Gebhard- Permanent and semi-permanent have been
order to tackle the non-discriminatory barriers to trade
defined as a presence on a stable and continuous basis
Sager- Defined a restriction as a ‘’national measure Steymann- No foreseeable limit to its duration
liable to prohibit or impede the activities of a provider
Difference between primary and secondary establishment:
services established in another Member State where
they lawfully provide similar services Primary establishment: an individual leaves one
Alpine Investment- Concerned a ban on cold calling to Member State to set up a permanent establishment in
sell financial products (randomly ringing numbers to another Member State
make a sale). The courts reaffirmed the market access Secondary establishment: an individual maintains an
test establishment in one Member State and sets up a
Defined restriction as a measure that directly affects professional base in another Member State
access to the market in services in the other Member E.g.
States and is thus capable of hindering intra-union trade Klopp- a restriction on practicing as an advocate while
in services remaining a member of the bar in another Member
Application of the test: State.
Commission v Italy- Concerned an Italian requirement Restriction on freedom of establishment:
for foreign patent agents to be registered on the Italian
patent register before providing a service in Italy which Non- Discrimination- the principle of non-discrimination
was deemed to be a breach of the freedom to provide is one of the grounds for prohibiting restrictions on
services freedom of establishment. The following phrase in
Anomar- Portuguese rules restricting the right to Article 49 TFEU is indicative of the prohibition of
operate games of chance or gambling only to casinos in discrimination: ‘under the conditions laid down for its
permanent or temporary gambling areas breached own nationals’
Article 56 TFEU. Cases:
activities performed.
Distinguishing between the different fundamental freedoms Humbel- Renumeration or payment is defined as
Movement of persons- Service providers, established ‘’consideration for the service provided’’ ‘
persons and workers involved in economic activities. Writh- Private education could constitute a service
Their movement in EU law is regulated by a different set when it is financed essentially out of private funds - by
of rules, based on the same rationale. students or their parents - and where the provider
Van Binsbergen- Rationale is the requirement of equal intends to make an economic gain.
treatment Schlinder- The importation of lottery advertisements
Workers and service providers- Distinguishing feature and tickets into a Member State with a view to the
between the free movement of workers and service participation by residents of that State in a lottery
providers is the provision of service in a self-capacity or operated in another Member State relates to a 'service'
under some else’s supervision within the meaning of the Treaty.
Services and establishment- Both provided on a self- SPUC v Grogan- Issuing information about the identity
employed basis. The feature that allows us to tell them and location of clinics in another Member State
apart is the length of the service provision providing abortion is not a ‘service’ since the
Gebhard- information was not distributed on behalf of an
Concept of establishment allows a national to economic operator established in another Member
participate on a stable and continuous basis in the State. But abortion performed in another Member State
economic life of another member state in the sphere of did constitute a service for the purpose of free
their activity as a self-employed person movement rules.
Provider of services moves to another Member State to Geraets- Smits and Peerbooms- Hospital service paid
pursue their activity there on a temporary basis for on the basis of an insurance system, sickness
Services and goods- Often goofs are supplied for insurance fund was considered to be a service
provision of services. In such scenarios the rules on
services must be applied. Temporary nature:
Cura Anaglen- A service consists of an economic activity
provided for consideration Third paragraph of Article 57 TFEU highlights the feature
which distinguishes services from establishment, it’s
temporary nature
Defining a service: Gebhard- Must be pursued on a temporary basis with
Article 56 TFEU- reference to the duration, regularity, periodicity or
Restrictions on freedom to provide services within the continuity
Union shall be prohibited Schnitzer- The decision whether an activity is a
temporary service provision or establishment is for the
Article 57 TFEU: national court to make on a case by case basis
Trojani- An activity carried out on a permanent basis, or
Services shall be considered where they are normally at least without a foreseeable limit to its length, would
provided for renumeration, in so far as they are not
not be considered as provision of service.
governed by the provisions relating to freedom of
movement for goods, capital and persons.
Cross border provision:
‘’In so far as they are not governed by the provisions
relating to freedom of movement for goods, capitals and Established in Article 56 of the TFEU, there must be an
persons shows that the provisions on free movement of element of crossing the border between different
services are residual in nature Member States for Freedom to Provide Services to be
Luisi and Carbone- They apply as long as the provision of applicable
goods, capital and persons do not apply Four scenarios:
Services shall in particular include The service itself moves from one Member State to
(a) activities of an industrial character; another;
(b) activities of a commercial character; The service provider moves
(c) activities of craftsmen; The service recipient-
(d) activities of the professions. Cowan:
Without prejudice to the provisions of the Chapter British tourist was mugged in Paris; under French law
relating to the right of establishment, the person only French residents were entitled to compensation for
providing a service may, in order to do so, temporarily
having been a victim of crime.
pursue his activity in the Member State where the
Court held that the fact that Mr Cowan had been in Paris
service is provided, under the same conditions as are
as a recipient of services resulted in the situation being
imposed by that State on its own nationals.
within the Treaty’s scope of application and that
What are services: excluding non-residents from the entitlement to
Remuneration: compensation was in breach of the non-discrimination
According to the first paragraph of Article 57 TFEU principle.
services ‘are normally provided for remuneration’. This
, Vestergarrd- cross-border element exists even if service Gourmet- a prohibition on advertising had a particular
provider and recipient are from the same state as long effect on the cross-border supply of advertising, given
as service is taking place in another MS the international nature of the advertising market.
Luis and Carbone: Treaty rules relate to the freedom to
receive services Freedom of establishment:
The rules regulating freedom of establishment concern
provision of services
Restrictions on free movement of services:
The main distinction is the length of the service
provision
Treaty prohibition on restricting the free movement of
Sodemare- Establishment is an economic activity that
services is also based on the rationale of abolishing
has to be pursued on a stable and continuous basis
discrimination
Prohibition of discrimination would include both Article 49 TFEU:
distinctly and indistinctly applicable measures
[..] restrictions on the freedom of establishment of
Gouda- Article 56 states the abolition of any
nationals of a Member State in the territory of another
discrimination against a person providing services on the
Member State shall be prohibited. Such prohibition
grounds of his nationality or the fact that he is
shall also apply to restrictions on the setting-up of
established in a Member State other than the one in
agencies, branches or subsidiaries by nationals of any
which the service is provided.
Member State established in the territory of any
FDA- Another example of direct discrimination. Spanish
Member State.
law required that in order to be granted a license to dub
Freedom of establishment shall include the right to take
foreign films film distributors should also distribute a
up and pursue activities as self-employed persons and
Spanish film at the same time.
to set up and manage undertakings, in particular
Gouda also confirmed that indirect discrimination is
companies or firms within the meaning of the second
prohibited under Article 56 TFEU
paragraph of Article 54, under the conditions laid down
Restrictions on the freedom to provide services field
for its own nationals by the law of the country where
may arise in the second place as a result of the
such establishment is effected.
application of national rules which affect any person
Freedom of establish applies to both natural (actual
established in the national territory to persons providing
people) and legal persons (companies)
services established in the territory of another Member
State who already have to satisfy the requirements of What is an establishment:
that State’s legislation.
Indirect discrimination can take the form of dual burden Factortame- Establishment means the actual pursuit of
rules, e.g. a requirement to be established before an economic activity throughout a fixed establishment in
providing a service another Member State for an indefinite period’.
Insurance Services- A person or a business must have a
Market Access: physical presence in a foreign Member State in a
permanent or semi-permanent basis
The court’s case law now includes the market access test in
Gebhard- Permanent and semi-permanent have been
order to tackle the non-discriminatory barriers to trade
defined as a presence on a stable and continuous basis
Sager- Defined a restriction as a ‘’national measure Steymann- No foreseeable limit to its duration
liable to prohibit or impede the activities of a provider
Difference between primary and secondary establishment:
services established in another Member State where
they lawfully provide similar services Primary establishment: an individual leaves one
Alpine Investment- Concerned a ban on cold calling to Member State to set up a permanent establishment in
sell financial products (randomly ringing numbers to another Member State
make a sale). The courts reaffirmed the market access Secondary establishment: an individual maintains an
test establishment in one Member State and sets up a
Defined restriction as a measure that directly affects professional base in another Member State
access to the market in services in the other Member E.g.
States and is thus capable of hindering intra-union trade Klopp- a restriction on practicing as an advocate while
in services remaining a member of the bar in another Member
Application of the test: State.
Commission v Italy- Concerned an Italian requirement Restriction on freedom of establishment:
for foreign patent agents to be registered on the Italian
patent register before providing a service in Italy which Non- Discrimination- the principle of non-discrimination
was deemed to be a breach of the freedom to provide is one of the grounds for prohibiting restrictions on
services freedom of establishment. The following phrase in
Anomar- Portuguese rules restricting the right to Article 49 TFEU is indicative of the prohibition of
operate games of chance or gambling only to casinos in discrimination: ‘under the conditions laid down for its
permanent or temporary gambling areas breached own nationals’
Article 56 TFEU. Cases:
