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Freedom of Establishment 2: Freedom to provide services (Article 56 -…
Freedom of Establishment 2: Freedom to provide services
Article 56 - prohibition on restrictions to provide services
Applies to same entities as Article 49 - difference is that establishment entails permanent presence while services is temporary presence or none at all
Includes right to provide services - e.g. Van Binsbergen
Direct effect
What constitutes a service?
No physical presence in other MS - Article 57 - temporarily pursue activity in MS
Gebhard - determined in the light of...
Duration
Regularity
Continuity
Periodicity
Art 57 - renumeration
Can be paid by a third party - Deliége
Genuine and effective economic activity
Must not be marginal or ancillary - Steymann
Activities listed in Art 57
a) Industrial
b) Commercial
c) Craftsmen
d) Professionals
Other examples
Abortions - Grogan
Prostitution - Jany
Sport - Deliége
But not state education - Humbel
Services Directive - 2006/123 - Article 1(1)
Establishes general provisions facilitating the exercise of...
Freedom of establishment for service providers
Free movement of services
While maintaining a high quality of service
Matters falling outside Article 57
Article 62 - applies Article 51 - official authority exemption
Article 56 - purely internal situations
Nationals of MS who are established in another MS
Purely internal - Debauve - Art 56 does not apply
Cross border element
Article 56 is applicable
Deliége
Hubbard - only needs cross-border element
de Coster
Article 57 - where provisions for goods, capital or persons govern
Qualified in Omega - other freedoms secondary
Social rights for natural persons - discrimination prohibited
Italian Housing
Cowan
What is a restriction? - expansion of scope
van Binsbegen - discrimination by reason of nationality or residence
Sager - any measures liable to prohibit or impede service provider even if indistinctly applicable
Analir - any restriction liable to prohibit, impede or render less attractive activities of a service provider even if indistinctly applicable
Justifications
Derogations - Article 62 applies 52
Applicable even if discrminatory - must be proportionate
Public policy - Omega
Public security
Public health
Imperative reasons - Sager - mirror imperative requirements/overriding reasons for public interest
Sager
Indisctinctly applicable
Justified by imperative reasons in the general interest
Objectively necessary to protect that interest
Proportionate
Does not exceed what is necessary to attain that objective
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Companies and firms - Article 62 applies 54
Self employment - Jany definition
Acts outside of any relationship of subordination
Under the person's own responsibility
In return for renumeration
Further rights of entry and residence - right to enter and reside
Luisi - right to go to another MS to receive service
Directive 2004/38
Rush Portuguese - right to bring own workforce to host MS
Directive 96/71
Qualifications - secondary legislation
Article 62 applies 53 - provides for issuing directives for mutual recognition of services
Directives for specific professions
Where no specific Directive - Title II Directive 2005/36 - regulated professions only
Court of Justice
Principles developed in Thieffrey applicable here