European Law
Week 1 – Introduction, the EU internal market & Recap
1. The EU internal market
What is the EU internal market?
- Article 26 TFEU: internal market
- Court of Justice EU (Gaston Schul par. 33) ‘The concept of a common market as defined by the
court in a consistent line of decisions involves the elimination of all obstacles to intra-community
trade in order to merge the national markets into a single market bringing about conditions
as close as possible to those of a genuine internal market’ (= definition of the internal market)
How is the internal market realised?
- (Legal) Building blocks
o Four freedoms (Article 26) for most addressed to public authorities
Transferred into subjective rights for citizens (van Gend & Loos)
Principle of supremacy (Costa/ENEL)
o EU competition rules addressed to private parties (companies) in the first place
o Harmonisation of national laws
- Philosophies of market integration
o Home country: it is the country where for example goods are being produced or being
marketed that country sets the rules and the standards. The country to where the goods
have been exported will have to accept that the goods have been lawfully produced in that
particularly country. Mutual recognition. Same works with persons, for example to
work with a Dutch diploma abroad.
o Host country: its the host country that sets the rules and products coming from a country
will have to act to the rules of the country where they will be sold.
o Harmonized model mixed
- Negative & positive integration
o Negative integration: simply by applying the rules of the treaty, national laws that are
restrictive will have to be set aside. So national markets integrate into one EU market.
This is not absolute.
o Positive integration: requires common norm at EU level; positive action from the side of
EU.
Introduction to the four freedoms
,In par. 20 of the Gebhard-case the Court said: ‘the situation of a Community national who moves to another
Member State of the Community in order there to pursue an economic activity is governed by the chapter of
the Treaty on the free movement of workers, or the chapter on the right of establishment or the chapter on
services, these being mutually exclusive’ (in Dutch: je kunt slechts onder één vrijheid vallen; de vrijheden
sluiten elkaar uit).
So only one provision can be applicable at the same time
Important principle underlying free movement: non-discrimination on grounds of nationality – see
also article 18 TFEU
Harmonisation of national laws
Harmonisation? Why, what and effects
- Why: negative & positive integration
o Removing barriers to trade and free movement
o Creating level playing field
o Protecting public interests
- What: approximation of national laws
- Effects:
o Before harmonisation Treaty provisions on free movement
o After harmonisation EU measures (legislative acts) become framework of review
o BUT different techniques of harmonisation
2. Art. 49 TFEU – Freedom of establishment (freedom of persons)
Step 1: determine whether the case falls within the scope of the free movement of services
- Personal
o Nationality of a member state/nationality of legal person (corporate seat)
o Self-employed (not a worker)
- Material
o Interstate element (link between two Member States)
o Economic activity
o Establishment – natural persons
The case Gebhard, par. 25-27 makes clear that the freedom of establishment is
used by participation on a stable and continuous basis in the economic life of a
Member State other than the State of origin. This should be determined in the light
of the duration, regularity, periodicity or continuity.
o Establishment – companies
Right to set up and manage companies (primary establishment)
Right to set up agencies, branches or subsidiaries; provided that there is permanent establishment
(secondary establishment Gebhard, para 24)
Check whether the Services Directive 2006/123/EC (lex specialis) applies.
Rules of free movement have horizontal (CJEU Viking par. 58; not compulsory) and vertical
direct effect
Step 2: does this limiting national measure of the free movement of the person forms a restriction?
- Direct discrimination: restriction based on nationality
Can only be justified by express treaty derogations
- Indirect discrimination: entails the situation where there is a general/natural rule that especially
affects persons from outside the member state
Article 49 TFEU prohibits any restriction. The Gebhard case par. 37 makes clear that this should
mean ‘to hinder or make less attractive the exercise of fundamental freedoms’.
o Relevant for all four free movements; unless they can be justified; proportionate + in
general interest
o Recipients of services can also be hindered (Alpine investments par. 38)
Even small restrictions are prohibited No ‘de minimis’
, Case Josemans, paras 45 & 46
Step 3: Is there a justification for the measure?
- Two types of justifications
o Express (treaty) derogations; justification grounds in the treaty itself
Applicable in all forms of restriction (direct, indirect and market access
restriction)
Freedom of establishment Arts. 51, 52 TFEU
Exercise of official authority
Public policy
Public security
Public health
o Rule of reason-exceptions (mandatory requirements (Gebhard para 37)
Applicable in situations of indirect discrimination and market access restrictions
NOT applicable in situations of direct discrimination
Conditions!
Public, non-economic interest
Suitable
Proportionate no less restrictive measure available
No harmonisation
Step 4: If this measure is justified, does it comply with the proportionality principle?
- Is this measure suitable/appropriate?
- Is this measure necessary?
- Whether the measure is proportional stricto sensu?; is it really that much more important? How
do we balance those two interests? Political issue
3. Art. 56 TFEU – Free movement of services
Step 1: determine whether the case falls within the scope of the free movement of persons
- Personal
o Nationality of a member state/nationality of legal person? (corporate seat)
o Self-employed (not a worker)
- Material
o Interstate element (link between two different member states)
o Economic activity
o Service (art. 57 TFEU)
Remuneration
Temporary (Gebhard par. 25-27)
Periodicity
Regularity
Continuity
Duration
The fact that it is temporary does not mean that the provider of services may not
equip himself with some form of infrastructure in the host member state (par. 27
Gebhard). The fact that the person at issue has equipment, thus, doesn’t matter for the
applicability of art. 56 TFEU.
Medical services provided for remuneration fall within the scope of the freedom to
provide services (Watts, paras. 86). This includes also the freedom to be the
recipient of services (Watts, par. 87)
Including services that are paid by third parties (advertising), where services may
be free for users and money is made from users data
Check whether the Services Directive 2006/123/EC (lex specialis) applies.
Scope of Services Directive: Arts. 2 & 3 of the directive
, Rules of free movement have horizontal (CJEU Viking par. 58; not compulsory) and vertical
direct effect
Step 2: does this limiting national measure of the free movement of the person forms a restriction?
- Direct discrimination: restriction based on nationality
Can only be justified by express treaty derogations
- Indirect discrimination: entails the situation where there is a general/natural rule that especially
affects persons from outside the member state
Market-access restriction or obstacle: prohibited is each measure that directly affects access to the
market in services in other member states (see Alpine Investments, para 38)
o The measure is not discriminatory, but the measure makes the exercise of the freedom
less attractive or it prevents people from exercising these rights.
o Example: prior authorization for the reimbursement of the costs of a medical treatment in
another member state (see Watts para 98)
Zie ook Gebhard case! => Article 49 TFEU prohibits any restriction. The Gebhard case par. 37
makes clear that this should mean ‘to hinder or make less attractive the exercise of fundamental
freedoms’.
o Relevant for all four free movements; unless they can be justified; proportionate + in
general interest
Even small restrictions are prohibited No ‘de minimis’
Case Josemans, paras 45 & 46
Step 3: Is there a justification for the measure?
- Two types of justifications
o Express (treaty) derogations; justification grounds in the treaty itself
Applicable in all forms of restriction (direct, indirect and market access
restriction)
Freedom of services Arts. 62, 51 and 52 TFEU (see also Watts par. 60)
Exercise of official authority
Public health
Public security
Public policy
Strictly interpretation
Cannot serve purely economic ends
o Rule of reason-exceptions (mandatory requirements)
Applicable in situations of indirect discrimination and market access restrictions
NOT applicable in situations of direct discrimination
CJEU Gebhard par. 37
Public, non-economic interest
Suitable
Proportionate
No harmonisation
Protection of the reputation of Netherlands financial market (Apline Investments,
par. 44)
Protecting the financial balace of the social security system (Watts par. 103)
Conditions!
Proportionality (Apline Investments par. 45)
Principles of good governance (Watts par. 116)
Step 4: If this measure is justified, does it comply with the proportionality principle?
- Is this measure suitable/appropriate?
- Is this measure necessary?
- Whether the measure is proportional stricto sensu?; is it really that much more important? How
do we balance those two interests? Political issue
Week 1 – Introduction, the EU internal market & Recap
1. The EU internal market
What is the EU internal market?
- Article 26 TFEU: internal market
- Court of Justice EU (Gaston Schul par. 33) ‘The concept of a common market as defined by the
court in a consistent line of decisions involves the elimination of all obstacles to intra-community
trade in order to merge the national markets into a single market bringing about conditions
as close as possible to those of a genuine internal market’ (= definition of the internal market)
How is the internal market realised?
- (Legal) Building blocks
o Four freedoms (Article 26) for most addressed to public authorities
Transferred into subjective rights for citizens (van Gend & Loos)
Principle of supremacy (Costa/ENEL)
o EU competition rules addressed to private parties (companies) in the first place
o Harmonisation of national laws
- Philosophies of market integration
o Home country: it is the country where for example goods are being produced or being
marketed that country sets the rules and the standards. The country to where the goods
have been exported will have to accept that the goods have been lawfully produced in that
particularly country. Mutual recognition. Same works with persons, for example to
work with a Dutch diploma abroad.
o Host country: its the host country that sets the rules and products coming from a country
will have to act to the rules of the country where they will be sold.
o Harmonized model mixed
- Negative & positive integration
o Negative integration: simply by applying the rules of the treaty, national laws that are
restrictive will have to be set aside. So national markets integrate into one EU market.
This is not absolute.
o Positive integration: requires common norm at EU level; positive action from the side of
EU.
Introduction to the four freedoms
,In par. 20 of the Gebhard-case the Court said: ‘the situation of a Community national who moves to another
Member State of the Community in order there to pursue an economic activity is governed by the chapter of
the Treaty on the free movement of workers, or the chapter on the right of establishment or the chapter on
services, these being mutually exclusive’ (in Dutch: je kunt slechts onder één vrijheid vallen; de vrijheden
sluiten elkaar uit).
So only one provision can be applicable at the same time
Important principle underlying free movement: non-discrimination on grounds of nationality – see
also article 18 TFEU
Harmonisation of national laws
Harmonisation? Why, what and effects
- Why: negative & positive integration
o Removing barriers to trade and free movement
o Creating level playing field
o Protecting public interests
- What: approximation of national laws
- Effects:
o Before harmonisation Treaty provisions on free movement
o After harmonisation EU measures (legislative acts) become framework of review
o BUT different techniques of harmonisation
2. Art. 49 TFEU – Freedom of establishment (freedom of persons)
Step 1: determine whether the case falls within the scope of the free movement of services
- Personal
o Nationality of a member state/nationality of legal person (corporate seat)
o Self-employed (not a worker)
- Material
o Interstate element (link between two Member States)
o Economic activity
o Establishment – natural persons
The case Gebhard, par. 25-27 makes clear that the freedom of establishment is
used by participation on a stable and continuous basis in the economic life of a
Member State other than the State of origin. This should be determined in the light
of the duration, regularity, periodicity or continuity.
o Establishment – companies
Right to set up and manage companies (primary establishment)
Right to set up agencies, branches or subsidiaries; provided that there is permanent establishment
(secondary establishment Gebhard, para 24)
Check whether the Services Directive 2006/123/EC (lex specialis) applies.
Rules of free movement have horizontal (CJEU Viking par. 58; not compulsory) and vertical
direct effect
Step 2: does this limiting national measure of the free movement of the person forms a restriction?
- Direct discrimination: restriction based on nationality
Can only be justified by express treaty derogations
- Indirect discrimination: entails the situation where there is a general/natural rule that especially
affects persons from outside the member state
Article 49 TFEU prohibits any restriction. The Gebhard case par. 37 makes clear that this should
mean ‘to hinder or make less attractive the exercise of fundamental freedoms’.
o Relevant for all four free movements; unless they can be justified; proportionate + in
general interest
o Recipients of services can also be hindered (Alpine investments par. 38)
Even small restrictions are prohibited No ‘de minimis’
, Case Josemans, paras 45 & 46
Step 3: Is there a justification for the measure?
- Two types of justifications
o Express (treaty) derogations; justification grounds in the treaty itself
Applicable in all forms of restriction (direct, indirect and market access
restriction)
Freedom of establishment Arts. 51, 52 TFEU
Exercise of official authority
Public policy
Public security
Public health
o Rule of reason-exceptions (mandatory requirements (Gebhard para 37)
Applicable in situations of indirect discrimination and market access restrictions
NOT applicable in situations of direct discrimination
Conditions!
Public, non-economic interest
Suitable
Proportionate no less restrictive measure available
No harmonisation
Step 4: If this measure is justified, does it comply with the proportionality principle?
- Is this measure suitable/appropriate?
- Is this measure necessary?
- Whether the measure is proportional stricto sensu?; is it really that much more important? How
do we balance those two interests? Political issue
3. Art. 56 TFEU – Free movement of services
Step 1: determine whether the case falls within the scope of the free movement of persons
- Personal
o Nationality of a member state/nationality of legal person? (corporate seat)
o Self-employed (not a worker)
- Material
o Interstate element (link between two different member states)
o Economic activity
o Service (art. 57 TFEU)
Remuneration
Temporary (Gebhard par. 25-27)
Periodicity
Regularity
Continuity
Duration
The fact that it is temporary does not mean that the provider of services may not
equip himself with some form of infrastructure in the host member state (par. 27
Gebhard). The fact that the person at issue has equipment, thus, doesn’t matter for the
applicability of art. 56 TFEU.
Medical services provided for remuneration fall within the scope of the freedom to
provide services (Watts, paras. 86). This includes also the freedom to be the
recipient of services (Watts, par. 87)
Including services that are paid by third parties (advertising), where services may
be free for users and money is made from users data
Check whether the Services Directive 2006/123/EC (lex specialis) applies.
Scope of Services Directive: Arts. 2 & 3 of the directive
, Rules of free movement have horizontal (CJEU Viking par. 58; not compulsory) and vertical
direct effect
Step 2: does this limiting national measure of the free movement of the person forms a restriction?
- Direct discrimination: restriction based on nationality
Can only be justified by express treaty derogations
- Indirect discrimination: entails the situation where there is a general/natural rule that especially
affects persons from outside the member state
Market-access restriction or obstacle: prohibited is each measure that directly affects access to the
market in services in other member states (see Alpine Investments, para 38)
o The measure is not discriminatory, but the measure makes the exercise of the freedom
less attractive or it prevents people from exercising these rights.
o Example: prior authorization for the reimbursement of the costs of a medical treatment in
another member state (see Watts para 98)
Zie ook Gebhard case! => Article 49 TFEU prohibits any restriction. The Gebhard case par. 37
makes clear that this should mean ‘to hinder or make less attractive the exercise of fundamental
freedoms’.
o Relevant for all four free movements; unless they can be justified; proportionate + in
general interest
Even small restrictions are prohibited No ‘de minimis’
Case Josemans, paras 45 & 46
Step 3: Is there a justification for the measure?
- Two types of justifications
o Express (treaty) derogations; justification grounds in the treaty itself
Applicable in all forms of restriction (direct, indirect and market access
restriction)
Freedom of services Arts. 62, 51 and 52 TFEU (see also Watts par. 60)
Exercise of official authority
Public health
Public security
Public policy
Strictly interpretation
Cannot serve purely economic ends
o Rule of reason-exceptions (mandatory requirements)
Applicable in situations of indirect discrimination and market access restrictions
NOT applicable in situations of direct discrimination
CJEU Gebhard par. 37
Public, non-economic interest
Suitable
Proportionate
No harmonisation
Protection of the reputation of Netherlands financial market (Apline Investments,
par. 44)
Protecting the financial balace of the social security system (Watts par. 103)
Conditions!
Proportionality (Apline Investments par. 45)
Principles of good governance (Watts par. 116)
Step 4: If this measure is justified, does it comply with the proportionality principle?
- Is this measure suitable/appropriate?
- Is this measure necessary?
- Whether the measure is proportional stricto sensu?; is it really that much more important? How
do we balance those two interests? Political issue
