Establishment / Services / Capital
Legal Basis:
1. Primary Legislation
Establishment (self-employed activities) → Permanent link
ART 49→ Natural and legal persons
ART 54→ Profitable companies
ART 52→ Exceptions to breach
→ Can freedom of establishment and services be applicable at once? No, one prevails
- Important to make the distinction clear.
Services
ART 56→ Prohibition on restriction to provide services → Temporary
ART 57→ “Definition” provided for remuneration
ART 62 → Exception to breach ART 56+57 (Public policy, public security, public health)
2. Secondary Legislation
Service Directive 2006/123/EC
- Definition of Service: Art 4
- Broad Exclusions: Art 2 + 3
- Art 16: requirements for services
- Aim: Create an open single market in services within the EU while at the same time
ensuring the quality of services provided to consumers.
Posted Workers Directive
- Posted Workers Directive 96/71/EC: Applies to undertakings NOT workers
- Terms & conditions
- Art 3→ MIN requirements Host MS can impose on company
- Case Laval
- Latvian company, refurbishing a school in Sweden
- Using its own Latvian workers. (Posted)
- Workers earned less than Swedish workers.
- Swedish construction union wanted to apply the Swedish
collective agreement.
- Laval refused due to the uncertainty on how much he would have
to pay his workers.
- Action brought against Laval
- Successfully argued this was contrary to EU law.
, Recognition of Qualifications
Directive 2005/36 EC: Recognition of qualifications
- Gebhard Case
Wholly Internal Situation
- For EU law to apply→ Cross border element
- Art 49 TFEU
- Restrictions on own nationals leaving territory
- WHY: If a MS prevents own nationals from leaving to provide services in
another MS→ freedom of services applied only ineffectively
- Restrictions on own nationals when returning
- WHY: not fall inside wholly internal situation
Ex: Recognition of qualification/diplomas
Case: Government of the French Community and Walloon Government v Flemish Government
- Form of indirect discrmination
- Constitutes a restriction→ Other EU provide services do not have
access to car insurance scheme
- Limiting to belgians living in flemish
part
- Apply: only to those never exercise
cross borders
Freedom of Establishment
- Self Employed People
a. Natural and Legal Persons
- Art 49 TFEU
- Actual establishment of a company in another MS
- Individual / self employed as well
Materiae
1. Actual establishment (permanent presence)
2. Pursuit of genuine economic activity
- Ex: Charity → does not earn / offer services paid for on the market
Personae
- Natural persons→ All type of self employed activity Ex: lawyer
- Case Gebhard
- COJ: membership of bar is a condition for exercising right of
freedom of establishment
- Condition / Limitation→ breach Art 49
Legal Basis:
1. Primary Legislation
Establishment (self-employed activities) → Permanent link
ART 49→ Natural and legal persons
ART 54→ Profitable companies
ART 52→ Exceptions to breach
→ Can freedom of establishment and services be applicable at once? No, one prevails
- Important to make the distinction clear.
Services
ART 56→ Prohibition on restriction to provide services → Temporary
ART 57→ “Definition” provided for remuneration
ART 62 → Exception to breach ART 56+57 (Public policy, public security, public health)
2. Secondary Legislation
Service Directive 2006/123/EC
- Definition of Service: Art 4
- Broad Exclusions: Art 2 + 3
- Art 16: requirements for services
- Aim: Create an open single market in services within the EU while at the same time
ensuring the quality of services provided to consumers.
Posted Workers Directive
- Posted Workers Directive 96/71/EC: Applies to undertakings NOT workers
- Terms & conditions
- Art 3→ MIN requirements Host MS can impose on company
- Case Laval
- Latvian company, refurbishing a school in Sweden
- Using its own Latvian workers. (Posted)
- Workers earned less than Swedish workers.
- Swedish construction union wanted to apply the Swedish
collective agreement.
- Laval refused due to the uncertainty on how much he would have
to pay his workers.
- Action brought against Laval
- Successfully argued this was contrary to EU law.
, Recognition of Qualifications
Directive 2005/36 EC: Recognition of qualifications
- Gebhard Case
Wholly Internal Situation
- For EU law to apply→ Cross border element
- Art 49 TFEU
- Restrictions on own nationals leaving territory
- WHY: If a MS prevents own nationals from leaving to provide services in
another MS→ freedom of services applied only ineffectively
- Restrictions on own nationals when returning
- WHY: not fall inside wholly internal situation
Ex: Recognition of qualification/diplomas
Case: Government of the French Community and Walloon Government v Flemish Government
- Form of indirect discrmination
- Constitutes a restriction→ Other EU provide services do not have
access to car insurance scheme
- Limiting to belgians living in flemish
part
- Apply: only to those never exercise
cross borders
Freedom of Establishment
- Self Employed People
a. Natural and Legal Persons
- Art 49 TFEU
- Actual establishment of a company in another MS
- Individual / self employed as well
Materiae
1. Actual establishment (permanent presence)
2. Pursuit of genuine economic activity
- Ex: Charity → does not earn / offer services paid for on the market
Personae
- Natural persons→ All type of self employed activity Ex: lawyer
- Case Gebhard
- COJ: membership of bar is a condition for exercising right of
freedom of establishment
- Condition / Limitation→ breach Art 49
