83055
Description
Mind Map by rhiannonfayemcdonald, updated more than 1 year ago
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Created by rhiannonfayemcdonald
almost 11 years ago
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Freedom of Establishment/Provision of Services
- TFEU Arts.49-55 prohibit discriminatory
restrictions being placed on those who wish to
establish themselves (individuals and businesses)
- TFEU Arts.56-62 afford the right of free movement
to those who wish to provide a service in a host
state, normally without having a base there
- Royer Case 48/75 - CJEU emphasised that much common ground between the
3 groups and that workers, establishment and provision of services are all 'based
on the same principles in so far as they concern the entry into and the residence
in the territory of MS of persons covered by union law and the prohibition of all
discrimination between them on grounds of nationality
- Establishment
- Definition
- TFEU Arts.49&54 - give right of any business,
already having a base in one MS, to establish
a further permanent base in a host state
under same condition enjoyed by nationals
- EU citizens wishing to
work on a self-employed
basis in a host state are
also provided the right to
move to do so
- Such businesses and individuals are required to comply
with national laws applicable in host state, unless they
can be shown to be discriminatory on basis of nationality
- EU citizens wishing to
work on a self-employed
basis in a host state are
also provided the right to
move to do so
- Factortame Case C-221/89 - 'the pursuit of an
economic activity through a fixed establishment
in another MS for an indefinite period'
- TFEU Arts.49&54 - give right of any business,
already having a base in one MS, to establish
a further permanent base in a host state
under same condition enjoyed by nationals
- Confusion over whether a person is
employed/self-employed - Trojani Case
C-456/02 - CJEU made clear that
anyone working under the control of
another and is receiving a wage/salary
will be considered a worker... while
those involved in setting up and running
of business for themselves will be
considered self-employed
- TFEU Art.54 - for companies to enjoy
these rights they must demonstrate that
they are legally established in one MS
(Primary) and wish to conduct business
in another MS (Secondary)
- If they later wish to move their main
place of business to the host state to
benefit from eg, less tax, only the
primary MS can raise
objections(Centros Case C-212/97)
- If they later wish to move their main
place of business to the host state to
benefit from eg, less tax, only the
primary MS can raise
objections(Centros Case C-212/97)
- Recognition of qualifications
- TFEU Art.53 provides the Council with the authority
to issue directives relating to recognition of training
and qualifications obtained within the union and as
a result harmonising legislation has been enacted
- CJEU held that national authorities have an
obligation to consider the training and/or
qualifications held and compare to domestic
provisions. Where they are equivalent the host state is
required to recognise them as such (Vlassopoulou
Case 340/89) Where they are not foudn to be
equivalent the state must provide reasons for decision
which are open to judicial review (Heylens Case
222/86) Where they are part-equivalent the state may
require further training to 'make up the difference'
- CJEU held that national authorities have an
obligation to consider the training and/or
qualifications held and compare to domestic
provisions. Where they are equivalent the host state is
required to recognise them as such (Vlassopoulou
Case 340/89) Where they are not foudn to be
equivalent the state must provide reasons for decision
which are open to judicial review (Heylens Case
222/86) Where they are part-equivalent the state may
require further training to 'make up the difference'
- TFEU Art.53 provides the Council with the authority
to issue directives relating to recognition of training
and qualifications obtained within the union and as
a result harmonising legislation has been enacted
- Limitations - same as citizens
(public policy, security, health) and
workers
- Definition
- Provision of Services
- Definition
- TFEU Art.57 - to be a service it must be 'provided
for remuneration' Court has interpreted widely to
include medical services, vocational training and
tourism, and is likely to include any (lawfully)
temporary presence in a host state, unless
specifically covered by another area of the treaty
- TFEU Art.57 - to be a service it must be 'provided
for remuneration' Court has interpreted widely to
include medical services, vocational training and
tourism, and is likely to include any (lawfully)
temporary presence in a host state, unless
specifically covered by another area of the treaty
- Rights of service providers and recipients
- General right to exit home state and
enter host state as for all citizens
- No discrimination TFEU Art.56,
supported by general non-discrimination
TFEU Art.18 and TFEU Art.24
- Exceptions to these rights - TFEU Art.62
specifically states that the derogations relating
to establishment found in TFEU Arts.51-54
(public policy, security, health) will also apply to
the right to move freely to provide a service
- General right to exit home state and
enter host state as for all citizens
- Definition
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