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Restrictions under A49 (Rules that are Liable to Hinder or make less…
Restrictions under A49
Definition of Restriction
Freedom of establishment entitlement entitles individuals and undertakings to engage in the economic life of a host MS on a
stable and continuous basis
for an i
ndefinite or permanent period of time
under the same conditions as nationals or undertakings of the host
Aims at eliminating all direct and indirect discrimination on grounds of nationality against individuals or undertakings from other MS seeking to establish themselves in a host MS
Commission v Italy
Italian law that provided for reduced rate mortgages in respect of social housing for self-employed found to infringe A49
only available to Italian nationals
Such a rule
directly discriminates
against nationals from other MS
differentiates on the basis of the nationality of the economic operator
Self-employed Italian nationals were potentially at a competitive advantage since the reduced rate mortgage released funds for their business
Commission v Italy
Court of Justice held that a national rule that imposed obligation on members of Italian Bar associations to reside in the judicial district in which heir Bar association was situated constituted restriction of A49
such a rule liable to indirectly discriminate against nationals from other MS
Such a residence requirement is more easily satisfied by Italian nationals from other MS
Neri:
Domestic law that did not recognise degrees awarded following a third level training course where third level instituion had principal base in another MS found to infringe A49
Justifying Restrictions of Freedom of Establishment
A51 and 62 exclude A49 and 56 from economic activities that involve the exercise of iffical authority
MS can justify restrictions of Freedom of establishment under 2 headings
1) Pursuant to the derogating provision of A52 TFEU that allows MS to derogate from freedom of establishment on basis of
public policy
public security
public health
2) Ms can justify restrictions of A49 on basis of over-riding requirements in general interest
Justifications Based on A52
Rarely considered application of A52 to FOE
Law in relation to services relevant here
Apothekerkammer des Saarlandes and ORs
Held: National legislation which allowed only hose who had he status of pharmaciss to own and operate pharacies, could be justified by the protection of public health
More specifically: objective of ensuring the provision of medical products to the public is reliable and of good quality
Over-consumpion or incorrect use of medicinal products not only harmful to health, but also waste of financial resources- cost of medicinal products will often be finacanially borne by health insurers
Restriction also ensured financial balance of social security system
Justificatins Based on Over-rding requirements in public interest
1) Measure must pursue a legitimate overrding requirement in general interest
2) Measure must apply in a non-discriminatory manner
3) the Measure must be appropriate for security attainment of objective
4) Objective must not go beyond what is necessary in order to attain that objective
Principles similar to the freedom to provide services
Court of Justice has expressly recognised the following requirements may be relied upon to justify A49 requirements
: Need to safegaurd cohesion of MS tax system
: Need to prevent tax evasion
: Protection of fairness in commercial transactions
: Protection of creditors, minority shareholders and employees
Rules that are Liable to Hinder or make less Attractive the Freedom of establishment
Core right provided for under A49 is the right to establish oneself in a host MS under the same conditions as nationals in host MS
TEST:
Gebhard
Defines restriction under A49 as including national rules liable to hinder or make less attractive the exercise of the freedom of establishment
Thus national rules that apply to all economic operators in the national territory can infringe in the absence of direct or indirect discrimination on grounds of nationality
MacQuen and Others
FACT: Law prohibited medical examiner, other than ophthalmologist from carrying out objective eyesight examinations
HELD: opticians from other MS treated in an identical manner to those of he host MS
Neverthless, since he national rule liable to
hunder or make less attractive
the pursuit of an economic activity as an optician in the host MS, it infringed A49
Payroll and Others
National leg imposed obligation on undertakings that employed less than 250 employees and used data processing centres to generate and prepare pay slips for their employees to use specified data processing centres
HED: rule restricted the freedom of establish
luable to hinder or make less attractive exercise of an economic activity by undertakings with fewer than 250 employees
Commission v Portugal
National legislation imposed two obligations on undertakings engaged in private security to be constituted as a legal persona and to have minimum share capital
HELD even in absence of discrimination on grounds of nationality, such a rule liable to hinder or make less attractive exercise of freedom of establishment
Apothekerkammer des Saarlandes and Ors
Concerned preliminary reference from Germany
Whether A49 precluded national legislation which allowed only hose who had status of pharmactists to own and operate pharmacies
HELD: it is up to MS to adopt provisions re organisation of the health services, but in doing so they cannot restrict the free movement provisions, in particular the freedom of estab
Could constitute a restriction of A49 as it denied economic operators access to the self-employed activity of pharmacist in MS concerned
Limits to definition of a restriction
Innocentif Ltd
Whether a national rule that imposed an obligation to pay an administrative fee to companies' registration office in advance of registering company in host MS infringed A49
Court of Justice concluded since the payment was
commensurate with administrative costs
of registering a company and applied without distinction on grounds of nationality, it did not hinder or make less attractive exercise of the freedom of establishment
did not place individuals or undertakings from other MS at disadvantage as compared with individuals or undertakings from host MS
Principle of Mutual Recognition
in absence of harmonisation of EU Legislaiton, it is for the MS to determine the rules that govern access and pursuit of trades and professions in a host MS
in doing so- must comply with mutual recognition of qualifications and exerience obtained by individuals in other mS
AIM of putting all members of trade or profession who are nationals of MS on an equal footing within the EU
Helens
FACTS: Belgian national worked as football coach in France
Application to French authorities to have diploma in football coaching obtained in Belgium recognised as equivalent to French diploma in football coaching
ISSUE: refuse- challenged on basis it infringed A49
HELD: in absence of harmonising leg, MS remained responsible for setting rules governed access o and organisation of that trade
France entitled to reserve exercise of that trade to individuals who held necessary qalifications and experience
**French authorities obliged to comply with principle of mutual recognition and access, on objective basis, whehter Belgian diploma certified applicant as having knowledge and qualifications- equivalent to national qualifcation
Vlassopoulou
Greek national, holder of Greek law degree, had for some years practice law in Germany
Applied to be aditted to German bar but application refuse on basis she had not sccessfully completed necessary entrance exams
HELD: national rules governing the qualifications necessary to gain entry to a profession can restrict A49 even though they applied without distinction on grounds of the nationality of professional
TO COMPLY WITH PRINCIPLE OF MUTUAL RECOGNITION
MS required to take account of diplomas, certificates and other evidence of qualifications acquired in MS and COMPARE specalised knowledge
only in event that this
detailed
comparison revealed a shorfall on part of applicant in the qualficiations and knowledge necessary to gain access to the profession that such access could be refused
Council Directive 2005/36/EC
EU legislation governing recognition of foreign qualifications
This area prinicpally governed by Directive on the recognition of professional qualifications
Directive provides for a system of mutual recongition of qualifications
Applies to regulated professionals
De Bobadilla
: Court of justice held, in respect of previous legislaiton, that where the terms of acess to and pusut of a profession governed by a collective agreement, the profession could be regarded as being regulated for such pruposes
General principle of mutual recognition laid out in A4 of Directive
3 discrete procedures for recognition of qualifications under the directive
general system for recognition of evidence of training
General system of recongition of professional experience
A proceudre applying to specific professions including docts