Introduction
Movement within the EU is facilitated by the principles of non-discrimination and mutual recognition. Movement beyond the EU may involve a much greater amount of regulation and/or administration.
Article 49 TFEU - Freedom of Establishment
Article 56 TFEU - Freedom to Provide Services
Article 49 TFEU - Freedom of Establishment
Article 56 TFEU - Freedom to Provide Services
The Difference Between Freedom of Services and Establishment
Firstly, it is important to note the areas where these two freedoms are the same. They both prohibit restrictions and stipulate that those exercising the freedom must abide by local conditions. Also, they both have the same justifications for restrictions. The main difference is set out below:
Freedom of Establishment = permanent (setting up branches/agencies on a stable and continous basis)
Freedom of Services = temporary (pursuing activities on a temporary basis)
Test: Gebhard
Is it done on a stable and continuous basis?
If yes: FE
If no: FS
Freedom of Establishment = permanent (setting up branches/agencies on a stable and continous basis)
Freedom of Services = temporary (pursuing activities on a temporary basis)
Test: Gebhard
Is it done on a stable and continuous basis?
If yes: FE
If no: FS
Treaty Exceptions
Establishment
Official authority - Article 51
Public policy, security and health - Article 52
Services
Official authority - Article 61
Public policy, security and health - Article 61
Gebhard
"Any such rule, insofar as it is liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non-discriminatory (IA) manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they mustn't go beyond what is necessary to obtain it."
The imperative requirements in Gebhard are parallel to the mandatory requirements from Cassis - this has become known as the Cassis-type approach.
What does non-discriminatory mean?
It is indistinctly applicable - meaning it applies to everyone. There are two types:
Indistinctly applicable measures may be justified using Treaty/imperative requirements contained in Gebhard.
Distinctly applicable measures - that is direct discrimination - may only be justified using the Treaty.
Official authority - Article 51
Public policy, security and health - Article 52
Services
Official authority - Article 61
Public policy, security and health - Article 61
Gebhard
"Any such rule, insofar as it is liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non-discriminatory (IA) manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they mustn't go beyond what is necessary to obtain it."
The imperative requirements in Gebhard are parallel to the mandatory requirements from Cassis - this has become known as the Cassis-type approach.
What does non-discriminatory mean?
It is indistinctly applicable - meaning it applies to everyone. There are two types:
- Indirect discrimination - makes it harder
- Non-discrimination - equal impact but still hinders
Indistinctly applicable measures may be justified using Treaty/imperative requirements contained in Gebhard.
Distinctly applicable measures - that is direct discrimination - may only be justified using the Treaty.
Case Law
Key
a. establishment/services
b. direct, indirect or non-discriminatory restriction
c. which justifications are available
Van Binsbergen
Dutch law only allowed residents to act as legal advisers in courts - VB lived over the border in Belgium.
a. services
b. indirect discrimination - the rule was about residence, not nationality. A residence requirement is more easily satisfied by a national of that country
c. Treaty and Cassis-type
Sodemare
An Italian required running of homes for the elderly to be carried out only on a non-profit basis.
a. establishment
b. non-discrimination
c. Treaty and Cassis-type
Reyners v Belgium
A Dutch national was prohibited from becoming a lawyer in Belgium because he was not a Belgian national.
a. establishment
b. direct - nationality requirement
c. Treaty only
a. establishment/services
b. direct, indirect or non-discriminatory restriction
c. which justifications are available
Van Binsbergen
Dutch law only allowed residents to act as legal advisers in courts - VB lived over the border in Belgium.
a. services
b. indirect discrimination - the rule was about residence, not nationality. A residence requirement is more easily satisfied by a national of that country
c. Treaty and Cassis-type
Sodemare
An Italian required running of homes for the elderly to be carried out only on a non-profit basis.
a. establishment
b. non-discrimination
c. Treaty and Cassis-type
Reyners v Belgium
A Dutch national was prohibited from becoming a lawyer in Belgium because he was not a Belgian national.
a. establishment
b. direct - nationality requirement
c. Treaty only
Services Directive 2006/123
This Directive aims to remove barriers by making it more difficult for Member States to impose restrictions. It applies to both permanent and temporary services but there must be an element of a service.
Services Directive Checklist
1. Does it apply? Exclusions? If not, follow 6 stage approach (Cassis)
2. Permanent (establishment) or temporary (services)? Element of a service?
3. Prohibited requirements can never be justified. Other requirements can be justified.
Services Directive Checklist
1. Does it apply? Exclusions? If not, follow 6 stage approach (Cassis)
2. Permanent (establishment) or temporary (services)? Element of a service?
3. Prohibited requirements can never be justified. Other requirements can be justified.