Exam (elaborations)
Exam (elaborations) EU Internal Market Law - Free movement of services
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Exam of 5 pages for the course EU Internal Market Law at QUB (Problem Question)
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Problems relating to Establishment and Services1. ‘Petra von Kant’ (Services and Establishment)
2. ‘Sidse’ (Workers and Services – 2019 exam question)
3. ‘Fiorentina’ (‘posted’ workers [Services] in context of strike action)
1. Petra von Kant
Parties/interests
Petra-equal treatment in terms of provision of temporary legal services and/or
establishment in Sweden
Swedish bar-restrict access to non-Swedish lawyers
Swedish state-impose residency rules and charge foreign lawyers more for refresher
courses(?)
Key facts/Issues
Petra charged more for refresher course than Swedish lawyers
Petra denied full access to databases by Swedish Bar
State obstacle regarding residency requirements (where does she live, does it matter?)
Imposition of aptitude test by Swedish Bar in order to become established
Relevant Law (inc legislation and cases)
•Art 18 TFEU – prohibition of discrimination on nationality grounds (Case 2/74 Reyners)
•Art 20 TFEU (EU citizenship) and Art 21 TFEU (free movement of EU citizens)
•Art 49 TFEU – freedom of establishment without restrictions
•Art 56 TFEU – freedom to provide services without restrictions
•(horizontal application of Art 49 & 56 TFEU, Case 36/74 Walrave and Koch)
•Art 57 TFEU – de nition of ‘services’
•‘Services’ require remuneration (e.g. C-159/90 Grogan, C-281/06 Jundt)
•Provider can temporarily pursue activity in the host State in order to deliver the service
(C-55/94 Gebhard)…
•Under the same conditions as the host State’s nationals (e.g. Case 33/74 Van
Binsbergen, Case 205/84 Commission v Germany)
•Art 52 TFEU – justi cations for restrictions on foreign nationals on grounds of public
policy, public security or public health (see also Art 62 TFEU)
•Art 51 TFEU – ‘o cial authority’ exception (see Case 2/74 Reyners)
•Restrictions based on imperative requirements in the general interest (‘Cassis’-type
restrictions)
•Cases on justi cations / restriction of market access, e.g. Case 33/74 Van Binsbergen,
C-55/94 Gebhard, C-384/93 Alpine Investments
•Case law on proportionality – to be considered if restrictions potentially justi able, e.g.
C-112/00 Schmidberger, C-36/02 Omega, C-76/90 Säger, C-42/07 Liga Portuguesa etc
•Consider distinction between Services and Establishment (e.g. C-215/01 Schnitzer,
C-55/94 Gebhard)
•Secondary legislation:
•Professional quali cations (Directive 2005/36 [2013/55]) – recognition of equivalent
quali cations, but…
•More relevant to consider:
•Temporary provision of legal services Dir. 77/249/EEC [link with Art 56 TFEU]
•Lawyer’s Establishment Dir. 98/5/EC [link with Art 49 TFEU]
•Consider restrictions within the directives
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, •Cases: e.g. C-99/16 Lahorgue, Case 427/85 Commission v Germany, C-313/01
Morgenbesser
•There are many key cases relating to lawyers, including Reyners, Van Binsbergen,
Gebhard
Application
•Is there a service? YES
•Is there a restriction? YES
•Is there engagement of the law on establishment? YES
•Is there a restriction on this? YES
•Are the restrictions within a category that can potentially be justi ed?
•If so, what else is required for justi cation?
•Consider proportionality of the restrictions if the latter are potentially justi able
•State measures:
•Higher course fee is directly discriminatory (as against foreign lawyers)
•Residency requirement is indirectly discriminatory (applies to all lawyers) – see Van
Binsbergen
•Breach of Art 56 TFEU and potentially Art 49 TFEU (if Petra has relocated to Sweden).
Both impede Petra’s access to the market and violate EU citizenship rights
•Petra can rely on lawyers’ directives:
•If still ‘resident’ in Germany, this would be Dir. 77/249/EEC (Services)
•If resident in Sweden with a view to establishment, this would be Dir. 98/5/EC
•Grounds for restrictions are limited and do not seem to apply here
•Higher fee only justi able under Art 52 TFEU, but is the restriction covered? NO
•Residency requirement justi able under the Treaty or ‘imperative requirements in the
general interest’ (see Gebhard), but would this be a proportionate restriction, e.g. under
‘public policy’? Probably not?
2. Sidse
- Are the rst two job rejections lawful under EU law?
- Will the job she has been o ered be enough to acquire ‘worker status’?
- Does she need to be ‘established’ in France or can she o er legal services on a
temporary basis?
•Free movement of workers – basic position under Art 45 TFEU
•Overarching citizenship rights – Art 18 TFEU: prohibition of discrimination on nationality
grounds (Case 2/74 Reyners); Art 20 TFEU (EU citizenship) and Art 21 TFEU (free
movement of EU citizens)
Dir 2004/38 (‘CRD’) – not directly relevant on the facts (but see Art 24(1) – equal
treatment), unless ‘worker status’ is uncertain (not likely
•Quota restriction – Art 45(2): ‘abolition of any discrimination based on nationality…’
•See also Reg 492/2011 [formerly 1612/68])
•Sidse must be given the same priority as nationals of the host State (Art 1(1)-(2)).
•There is a ‘linguistic knowledge’ exception (Art 3(1)), however this does not apply as she
is uent in French. The quota violates Art 4(1) of the Reg.
•‘Public service’ restriction – Art 45(4) TFEU: public service exemption. This is a matter of
EU law, rather than what Toulouse City Council decides.
•The post must ‘…involve direct or indirect participation in the exercise of powers
conferred by public law and in the discharge of functions whose purpose is to safeguard
the general interests of the state or of other public authorities…’ (Case 66/85 Lawrie-Blum
para. 27).
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