Free Movement of Services and Establishment

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  • Created by: Hope
  • Created on: 12-05-16 09:24
What is the primary legislation establishing general framework for these freedoms?
Art 49-54 (establishment), Art 56-62 (services)
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Who can benefit from freedom of establishment?
Self employed persons & companies
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What are the three elements of a self employed person? Authority?
To be self employed you are: outside any relation of subordination, under his/her own responsibility, in return for remuneration paid directly and in full. Jany
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What activities are concerned by Art 49? Authority?
All types of self-employed activity can benefit from freedom of establishment - Gebhard, activities of an industrial or commercial character, activities of craftsmen, or activities of the professions- Barkoci and Malik
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How can freedom of establishment also apply to companies? Authority?
Need to apply two cumulative conditions in Cadbury's Schweppes: actual pursuit of economic activity, actual establishment in the host MS
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What rights are conferred by art 49 or other legislation?
Right to open secondary establishment in other MS (art 49) Right to enter and reside in an MS (citizenship rights directive)
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What rights does it confer?
The right to take up activities, the right to pursue activities
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What cases can you use for the right to take up activities?
Klopp (individuals), Daily Mail (companies, Centros (companies)
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Which state is referred to as home MS, and which is host?
The state where the service provider has establishment is home, and normally the place where the service is provided is host
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When can free movement of services get involved?
When there is a 'cross-border' element
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How has to cross the border? Authority?
In most cases, the service provider, but the recipient can also travel (Luisi and Carbone) Both parties can also travel
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What is included under the term 'services'? Source?
Activities of an industrial character, activities of a commercial character, activities of craftsmen, activities of the professions. Art 57
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What is an important element of services? Why?
Has to have a temporary nature or it would become freedom of establishment
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What else is an important element of services? Example?
Remuneration - small amounts ok (Jundt),
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What rights are conferred by art 56-57?
the right to provide services, and the right to receive services
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What happens when all freedoms are possible? Authority?
the claimant can only benefit from one- Gebhard
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What is the difference between services and establishment? Authority?
Services are temporary and establishment requires stable and continuous basis - Gebhard
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How did the CJ in Gebhard say a temporary basis had to be determined?
Not only duration, but regularity, periodicity, continuity - doesn't mean that they can't have some form of infrastructure
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What is contrasted with this?
Schnitzer said there needs to be a case by case basis, not a general rule
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How can you describe the borderline between the two? Authority?
AG Jacobs in Sager said the broderline is narrow
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What are the provisions governing discrimination and non-discrimination in establishment?
Art 49 and 54
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What are the provisions governing discrimination and non-discrimination in services?
Art 56 and 57
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What are the two main elements of this?
Equal treatment and prohibition of restrictions
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What is prohibited under equal treatment?
discrimination on grounds of nationality, company's seat, place of establishment
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What are some case examples of the rule of access to primary/secondary establishment?
Reyners, Factortame
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What are some case examples of exercise of freedom of establishment?
Commission v Italy, Konstadinidis, Laval, Steinhauser
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When can a restriction be legal? Authority?
If it is applied in a non-discriminatory manner, if it is justified by imperative requirements in the general interest, it is suitable for securing the attainment of the objective which they pursue, it is proportionate
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Can a language requirement count as a restriction? Authority?
Haim II, dentists need to speak with their patients, so the requirement is accepted
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Are licencing requirements justifiable? Authority?
Yes, but disproportionate Sager
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What example can be used for tax restrictions not being acceptable?
De Coster
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Other cards in this set

Card 2

Front

Who can benefit from freedom of establishment?

Back

Self employed persons & companies

Card 3

Front

What are the three elements of a self employed person? Authority?

Back

Preview of the front of card 3

Card 4

Front

What activities are concerned by Art 49? Authority?

Back

Preview of the front of card 4

Card 5

Front

How can freedom of establishment also apply to companies? Authority?

Back

Preview of the front of card 5
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