Free movement of goods problem essay question - FULL Answer
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Course
European Union Law
Institution
Brunel University (BU)
This is a fully written high first-class problem question. It discusses the issues of the free movement of services and the rights to provide a service across member states. It is a model answer and will provide you with a template for ANY problem question on the free movement of services. It conta...
The European Single Market, Internal Market or Common Market is a single market which seeks
to guarantee the free movement of goods, capital, services, and labour – the ‘four freedoms‘ –
within the European Union (EU). This question deals with the freedom to provide servives. This
defined in are defined in Article 57 TFEU. The key diiference between services and goods is
their tangible nature which is emphasised in third paragraph of Article 57 TFEU. Case C-451/99
Cura Anlagen [2002] ECR I-3193. An establishement differs from a service on the basis on
whether the person in the member state permenatly or temporarily, the latter being services.
This scenario involves the free movement of services and the position of Marco an Italian
Chocolator, in particular the rights to provide a service across the member states, Belgium
and Spain.
In order to qualify as a service, it must meet the requirements. Firstly, following ARTICLE 57
‘Services’ shall in particular include “(a) activities of an industrial character; (b) activities of a
commercial character;(c) activities of craftsmen;(d) activities of the professions.” In this
scenario, Marco service seems to satisfy this requirement. Marco wishes to provide his
service as a chocolatier and does so through his business. His serve satisfies the activities of
commercial character and one of a craftsman. Therefore, under ARTICLE 57, it can be
satisfied that Marco is providing a service.
Furthermore, it must satisfy the requirement in Case C 263/86 Humbel [1988] ECR 5365 of
requirement for an economic link. “The essential characteristic of remuneration thus lies in
the fact that it constitutes consideration for the service in question and is normally agreed
upon between the provider and the recipient of the service.” Marco could be argued to
satisfy the requirement of remuneration because of his vast customer portfolio and
invitations to important events, in which require his service. It can therefore be assumed
that Marco is being paid for these events and celebrations and therefore satisfy the test. I
Moreover, the Treaty rules on free movement of services can be applied once a cross-
border element has been established. This follows from Article 56 TFEU which is the main
rule prohibiting restrictions on free movement of services. This provision indicates that
there must be an element of crossing the border between different Member States for
Freedom to Provide Services law to be applicable. In the case of Alpine Investment
established that this requirememnt is satisfied by if the service crosses an intra- EU border.
In this scenario, Marco is moving across Belgium and Spain and thus satisfies this
requirement.
It is prohibited by Article 56 and 49 for member states to place restrictions on services or
establishments. Their right can only be restricted in very specific cases such as “public
policy, public policy and public health. These are identified in Chapter IV, Directive
2004/38/EC. However, in order to do so it must be justified and proportionate. In the
scenario, both Spain and Belgium have placed restrictions which will affect Marcos.
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