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Freedom of Establishment 1: Establishment and Services (Article 49 TFEU -…
Freedom of Establishment 1: Establishment and Services
Article 49 TFEU - prohibition on restrictions on freedom of establishment
Applies to
Self-employed persons - Article 49
Defined in Jany - freedom to provide services
Acts outside any relationship of subordination
Under the person's own responsibility
In return for renumeration
Companies and firms - Article 54
Rights include setting up and managing undertakings such as
Companies and firms
Agencies, branches and subsidiaries
What constitutes establishment?
Steymann - Permanent basis in MS or without foreseeable limit to duration
Gebhard - Stable and continuous basis in the economic life of the MS
Determined in the light of...
Duration
Regularity
Continuity
Periodicity
Direct effect
Reyners - vertical
Viking Line - horizontal
Matters falling outside
Article 51 - official authority exemption
Exempts activities connected, even occasionally, with the exercise of official authority
Reyners
A.G. Mayras - defined official authority - arises from sovereignty and majesty of the state
Court of Justice - must have direct and specific connection to official authority
Power of exercising prerogatives outside general law - privileges of official power and of coercion over citizens
Article 49 - purely internal situations
Nationals of MS in authority of another MS
Knoor
Cross border element - Art 49 can be applicable - Asscher
Purely internal situation - Art 49 does not apply - Nino
What is a restriction? - expansion of scope in Caixa Bank - became irrespective of discrimination
Reyners - direct discrimination
Thieffrey - indirect discrimination
Gebhard - measures liable to hinder or render less attractive
Caixa Bank - all measures which prohibit, impede, or render less attractive
Justifications
Derogations - Art 51
Applicable even if discriminatory, but must be proportionate
Public policy - Open Skies Case
Public security
Public health
Imperative requirements - Gebhard
Applied in a non-discriminatory manner
Justified by imperative requirements in the general interest
Suitable for obtaining the objective which they pursue
Proportionate
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Not go beyond what is necessary to attain that objective
Companies and firms
Article 54 - companies and firms satisfying the following conditions treated as natural persons under Article 49
Formed in accordance with the law of a MS
No consensus on how to identify jurisdiction - 2 ways - no problem where they are one in the same but problems arise where company has central aministration in different MS from where incorporated - Court of Justice had to resolve
Incorporation doctrine - e.g. UK and Ireland
Connecting factor = where company was legally incorporated and has its registered office
Real seat doctrine - e.g. France and Germany
Connecting factor = where company's central administration is locaed
Rights of MS of incorporation - Daily Mail
Rights to set up branches etc.
Segers - even if conducts no business where incorporated
Centros
Inspire Art
Mutual recognition of companies - Uberseering
Registered office, central administration or principal place of business is within the EU
Profit making - aka exist for that purpose
Further rights for natural persons
Right to enter and reside - Directive 2004/38 - detailed rules
Social rights - Commission v Italy (Italian Housing) - discrimination prohibited
Qualifications - Secondary legislation
Article 53 - provides for issuing directives for mutual recognition of qualifications
Directives for specific professions
E.g. Directive 98/5 - Lawyers Establishment Directive
Where no specific directive
Title III Directive 2005/36 - regulated professions only - mutual recognition of qualifications in order to pursue regulated professions - need diploma
Mutual recognition of equivalent qualifications - Thieffrey
Couldn't deny access to training stage of Parisian Bar - had passed exam and been recognised by French university - host MS must compare knowledge required and if the same, must recognise
Practical experience - Vlassopoulo
If only partially overlapping, must show have acquiried extra knowledge through other means - further course or practical experience - then must accept
Non-EU qualifications
Tawil-Albertini
Haim - where have been lawfully practicing in other MS
Principles apply even where Directive covers the specific profession - Hocsman
Makes it easier to pursue self-employed activities