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Free Movement of Establishment Services - Coggle Diagram

- - - - Natural + legal) person
      - MS nationality
      - Exercise of economic activity
        
        Art. 57 TFEU: “normally provided for remuneration” Remuneration = consideration for service rendered
        Normally ≠ necessarily profitable or market price see e.g. C-281/06 Jundt
      - No subordination (<-> FMW)
      - MS behaviour + certain private parties
        
        Broad understanding
        Incl. certain private parties in case of ‘private governance’ Walrave and Koch, Wouters, Viking, Laval
      - Cross-border element
        
        primary right of establishment: first establishment in a host MS other than your own
        move as a ‘going concern’ from home MS to host MS (relocation)
        
        secondary right of establishment: already established in one MS but adding another place of activity in another MS
        
        Exceptions
        
        Secondary Law: Services Directive Ch III
        Also in purely internal situations infra, Visser
        
        Primary Law: TFEU
        Exceptions as codified in Ullens de Schooten 2016
      - No carve-out
        
        Art. 51 jo. Art. 62 TFEU: ‘exercise of public authority’
        Art. 54(2) jo.Art. 62 TFEU: non-profit-making companies
      - Indefinite period + stable infrastructure
- - - - (Natural + legal) person
      - Person providing services has MS nationality
      - Established in a MS
        other than that of recipient
      - Exercise of economic activity
        
        Art. 57 TFEU: “normally provided for remuneration”
        Remuneration = consideration for service rendered
        Normally ≠ necessarily profitable or market price
        see e.g. C-281/06 Jundt
        
        Also ‘contentious’ services (window prostitution (C-340/11 and C-341/14 Trijber and Harmsen, abortion (C-159/90 SPUC v Grogan, gambling,…)
      - No subordination (<-> FMW)
      - MS behaviour + certain private parties
        
        Broad understanding
        Incl. certain private parties in case of ‘private governance’ Walrave and Koch, Wouters, Viking, Laval
      - Cross-border element
        
        provider or recipient moving (Cowan)
        provider and recipient moving to another MS (eg. tourist guides)
        neither provider nor recipient moves but service moves ( Alpine Investments)
        
        Exception: Primary Law: TFEU
        Exceptions as codified in Ullens de Schooten 2016
        FME/ FMS provisions capital do not apply to a situation which is confined in all respects within a single Member State” (para. 47)
        
        4 Exceptions created in case:
        (1) Potential cross-border interest (para 50)
        (2) Annulment proceedings of indistinctly applicable measures – effect on non-nationals
        (3) Corresponding cross-border situation (obligation grant same rights to national than to other MS national derived from EU law)
        (4) Renvoi
        
        requirement of evidence of connecting factors!
      - No carve-out
        
        art.51 jo. 62: exercice of official authority
        Restrictive interpretation: ‘direct and specific connection’
        Not for lawyers (Reyners 1974)
        Not for activity of vehicle inspection (EC v Portugal 2009)
        Not for certification activities (Rina Services 2015)
        Notaries Comm v Bel 2011 para 86
        
        Art. 54(2) jo.Art. 62 TFEU: non-profit-making companies
        
        Art. 58 TFEU TFEU: transport services
      - Temporary + occasional
        
        Gebhard List of criteria: “duration … regularity, periodicity or continuity” “
        The provider of services within the meaning of the Treaty, may equip himself with some form of infrastructure in the host MS in so far as necessary for the purposes of performing the services in question”
- - - - E-commerce Directive 2000/31 deals with requirements on service providers regarding
        -taking up of the activity
        -pursuit of the activity
        
        Does not cover (Ker-Optika)
        conditions under which goods may be sold via internet
        
        “requirements applicable to goods as such,
        
        requirements applicable to the delivery of goods,
        
        requirements applicable to services
        not provided by electronic means.”
        
        See: Uber Spain 2017
        Transport service = main component of which intermediary service forms an integral part
        Qualification as ‘service in the field of transport
        Specific rules on transport -> common transport policy: not adopted yet for non-public urban transport -> national prerogative to regulate
        
        AirBnB (FR 2019)
        service meets the four cumulative conditions to be an ‘information society service’ (Art. 1(1) Dir. 2015/1535): BUT: “that cannot be the case if it appears that that intermediation service forms an integral part of an overall service whose main component is a service coming under another legal classification (Uber Spain)”
        --> must be classified as an ‘information society service’ under Directive 2000/31
        
        Scope:
        ISS but only if not ‘integral part’ of other service (Uber Spain)
        SD
        Principle of home country control; prohibition prior authorisations
  - - - Art.9 Authorisation schemes only permitted if scheme is
        (i) non-discriminatory (see recital 65)
        (ii) Justified by an overriding reason relating to the public interest (= existence of legitimate aim) See Art. 2(8) jo. recital 40
        (iii) proportionate (necessary and suitable)
      - Art.10 Further Conditions for authorisation (e.g. language requirement)
      - Art.11 Duration
        Principle = unlimited in time
        Unless automatically renewed or subject only to continued fulfilment of requirements
        Unless number of available authorisations is limited by overriding reason public interest
        Unless limitated authorisation period can be justified by an overriding reason public interest
    - - Prohibited requirements art.14
      - requirements to be evaluated art.15
    - - art.16(2) seven specific restrictions
      - art.16(1) fall back prohibition on restrictions
  - - - as soon as it falls under the scope of access of a service and it touches upon access to the service of a exercise thereof ->only services directive applies
      - there is potentially a shift; (and what previously used to be very clearly Keck; now could even be the Services Directive)