Art 49 is the base. In the handout.
It talks about nationals of a MS, if you are a national of a non MS, you can’t rely on this provision. This applies to nationals of a MS or companies that are established in MS. We can’t deal with freedom of movement of companies, as that’s a highly complicated area and beyond our scope. There are a couple of logical steps in order to deduce whether there is a breach by a member state in your particular case. 1.
Is the situation really one where establishment is at issue? 2.
Is there a cross-border issue involved, you can only rely on the internal market rules only if you’re moving into another MS, there must be some element of moving or trying to move? This can lead to anomalies for an example for a non national you could rely on EU law, but as an Irish person, you can’t. ECJ cannot go beyond what is stated in the treaty. 3.
Have the rights afforded by article 49 being breached?
Is there a possible justification or a derogation that a MS could argue? What is meant by establishment?
The starting point has to be the ECJ case law. It is solely for the ECJ to interpret the concept of establishment. Leading Case: Gebhard: German lawyer. Qualified at the German Bar and he wanted to move to Milan and practise as a lawyer there. He tried to say he was an avocado in Italy. The Milan Bar Council was not happy, they said that he couldn’t do that unless he passed the Italian Bar exam. In this case, this falls within the establishment part of the treaty. The distinction between establishment and workers on the other hand is all about whether you are self employed or not. If you are employed, you should be relying on the free movement of workers. You should be relying on freedom of establishment if you are self employed. How do you distinguish between freedom of establishment and freedom of services? It was all about how long you were going to be in the MS. Permanent (establishment) and Temporary (freedom of services). See quote “on a stable and continuous basis”. The presence of infrastructure is not decisive. Court adopted a restriction based approach and not a discrimination approach. Mutual recognition. Jany
Right being relied on in the context of claimants who were prostitutes. Prostitution is legal in the Netherlands, because it was legal, they had to deal with the issue. Are prostitutes their own bosses? Yes they were. Distinction between workers and self employed persons. Argument also made in certain types of gambling (Schindler) Must be performing an economic activity. Vital that you’re getting some money. If you’re not getting any money for what you’re doing, it is not an economic activity. Loss of Employment
What happens if you go to another country, get employed and then lose your job? See top of page 8. Activities connected with the “exercise of official authority” Certain derogation for state exempted roles eg diplomat. Comission v. Greece – argued that an expert witness in the context of a RTA should be restricted to Greek nationals. Commission v. Spain – provision of security services, Spain allowed that they should be allowed to restrict security firms to Spanish based ones and that employ Spanish nationals. The court said yes in the case of a national Army, but not in the private basis Reyners, argument that lawyers were public servants to the court. He refused to hold that all areas could legitimately be restricted to Belgium. Any exceptions to the four freedoms are very narrowly interpreted. CROSS BORDER ELEMENT
Nors – the Nors case is important because the court has adopted a fairly broad concept of what is necessary in terms of cross border movement. Dutch plumber went to Belguim to look for employment, went back to the Netherlands unless you qualified in the Netherlands. Not discrimination on the face of the rules. Mr. Nors was a Dutch national and he was trying to having the rules of a Dutch body, his own nationality, struck down. The fact that he...
Please join StudyMode to read the full document