Please enable JavaScript.

Coggle requires JavaScript to display documents.

FMS art.56 & FoE art.49 Primary Law in absence harmonisation -…

- - - - Direct discrimination (distinctly applicable)
        i.e. based on nationality
      - Indirect discrimination (indistincly applicable with discr. effect)
        e.g. residence requirements (individuals), national language requirements, national diploma requirement,…
      - Restriction (indistinctly applicable obstacle)
      - Obstacles to?
        Right of exit/export of services
        Right of access market + right to exercise service activities
        
        Obstacles can be imposed by home state and host state
        Access includes access with workforce (cf infra, Laval)
        Right to equal treatment includes social + tax advantages
  - - - Art.52(1) TFEU +proportionality
      - Rule of reason
        Open list of grounds (codification in SD)
        +proportionality
        
        economic justifications do not count
        But: blurry line between econ and social reasons
        
        Proportionality (for both)
        
        Appropriate to secure attainment of aim (evidence based)
        
        Neccessary: no less restrictive means available
        in sensitive areas: wider margin of appreciation
- - - - Direct discrimination (distinctly applicable)
        i.e. based on nationality
      - Indirect discrimination (indistincly applicable with discr. effect)
        e.g. residence requirements (individuals), national language requirements, national diploma requirement,
      - Restriction (indistinctly applicable obstacle)
      - Obstacles to?
        Right of exit/export of services
        Right of access market + right to exercise service activities
        
        Obstacles can be imposed by home state and host state
        Access includes access with workforce (cf infra, Laval)
        Right to equal treatment includes social + tax advantages Obstacles for service providers + recipients
  - - - Art.52(1) TFEU +proportionality
      - Rule of reason
        Open list of grounds (codification in SD)
        +proportionality
- - - - E.g. additional costs; taxation
      - No ’selling arrangements’ carve-out (cf. Alpine Investment)
      - Different approaches
        as ‘solutions’ by Court, such as:
        
        no restriction if effect is merely to create additional costs in respect of services in question (Mobistar)
        no restriction if ‘modest’ tax (Viacum II)
        
        no restriction simply because other MS apply less strict/more commercially favourable rules (Commission v Italy (maximum fees lawyers))
    - - Rule of reason: prevention of abuse of law /wrongful evasion applicability national law
        ‘real seat’ doctrine
    - - FMS medical treatment: prior authorisation & refusals to reimburse -> restrictions -> pressure on welfare state
        Solutions: harmonisation of criteria + Art. 56 TFEU (justification controlling budget social security system)