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Test for Free Movement for the Self-Employed, Stage 1 - Is it an EU law…
Test for Free Movement for the Self-Employed
Stage 1 - Is it an EU law situation?
Material Scope
Is there a cross-border element to the situation? - Saunders C 175/78; Kraus C 19/92
If there is one then there is material scope
Personal Scope
Are they a national of an EU Member State or a family member of a national of an EU Member State?
If they are then the is personal scope
Stage 2 - Is the situation about workers or Establishment(Self-employed)?
The deciding factor between whether it is a situation about workers or establishment is that under establishment the individual is working as self employed
Question of then determining what self-employed is?
It is a very broad concept - Gebhard
It entails participation in the economic life of another MS on a stable and continuous basis - Gebhard
Whilst pursuing any type of self-employed activity - Article 49 TFEU
And it covers both natural and legal persons - Article 45 TFEU
Stage 3 - Gebhard Test (Gebhard Case C-55/94)
'Where the taking up or the pursuit of a specific activity is subject to certain conditions in the host MS, a national of another MS intending to pursue that activity must in principle comply with them' - Gebhard
However, question of whether the national provision is capable of hindering or rendering less attractive FM - Gebhard
Provisions that are liable to hinder or make less attractive the exercise of FM must satisfy 4 conditions - Gebhard
The national provision must be applied in a non-discriminatory manner
National provision is discriminatory
Discriminatory means that it applies in a certain way to nationals of a MS and applies in a different way to Non-nationals, generally in a negative way.
It will therefore be in breach of Article 49 TFEU, Freedom of Establishment (or another relevant treaty provision)
However, it still may be justified so move onto whether the situation involves public service and work through it.
Directive 2006/123 (Services Directive) lists a number of prohibited conditions in Article 14. It may include some measures which would be deemed to be equally applicable
This Directive regulates authorisation for establishment
National Provision is equally applicable. We then move onto the next step
Equally applicable means that it applies regardless of nationality (However, you will probably be able to argue that despite the provision applying equally regardless of nationality it is capable of hindering or rendering less attractive free movement)
May violate FM of persons but under Gebhard even indistinctly applicable provision are caught
Before we move onto the second condition we need to determine whether the scenario involves public service or exercise of official authority. (If yes, move onto the next condition)
Justified by imperative requirements (is there a public interest justification) - Gebhard
The last two conditions are a proportionality test - Gebahrd
They must be suitable for securing the objective that they pursue
And they must not go beyond what is necessary in order to attain the objective
2 more items...
Justifications include:
Treaty based justifications
Case law Based
If there is not a justification then you don't need to worry about proportionality
The national provision violates FM
If the situation involves either of these things then forget about free movement of persons as it does not apply
Provisions affecting the rights of self-employed persons in a host MS
Case law on direct and indirect discrimination in respect of tax benefits and exemptions, social benefits, housing etc
Provisions restricting the taking up and pursuit of self-employed activities
Services Directive
Blend these points up to the first condition together to create 1 legal rule - this should be easier when you are faced with a question
This is the general route but there may be specific routes that you need to follow after this
Situation involving recognition of professional qualification - Directive 2005/36/EC
Still discuss Gebhard test or Bosman depending on whether it is self employed or worker related
Situation involves potential abuse of free movement
This will be in the justification section
Situation involves an authorisation to become established - Services Directive
Still discuss Gebhard but look to the Services Directive and case law for areas that have already been dealt with
Focus is on anything that discourages FM for occupational purposes
Natural persons have a free right to leave their home State - Case C-415/93 Bosman [1995] ECR I-4921, para 104.
Abuse of free movement - May be a separate issue raised by a MS
Enforcement