These are the complete notes that I used to revise for my EU Law exam. They contain all the key cases and legislation, along with debate surrounding some of the main concepts. A bundle is available containing this document and others separate EU law topics.
Freedom to Provide Services and Freedom of Establishment
Art.49 provides for freedom of establishment (Directly effective Reyners 1974)
Art.56 provides for freedom to provide or receive services. (Directly effective Van Binsbergen 1974)
Establishment- right to set up self-employment, also for company to set up new branch in a state.
Services- Provide their services to other MS either temporarily or spasmodically. And allows company to
provide service and lets them enter the country if they need to do so on temporary or spasmodic basis.
FREEDOM OF ESTABLISHMENT AND ART.49 TFEU
- Relates not only to taking up of activity as a self employed person, but pursuit of such activity in
widest sense. Stops discrimination from MS by eg imposing extra conditions.
- DIRECT DISCRIMINATION Steinhauser 1985: French law gave advantages to French self-
employed. Challenged by German landscape artist.
- INDIRECT DISCRIMIATION: Stober 1997: German law providing child benefit to self employed
persons children only resident in Germany. Held this discriminates as migrant more likely to
leave children at home.
Not necessarily nationality restrictions. Could apply to all restrictions of freedom of establishment
whether equally applies to nationals or not. Klopp 1984, Gebhard 1995.
- BUT, does this add up, what if no crossed border?
Art.49 has horizontal and vertical effect (Viking Line 2007)
RIGHTS OF ENTRY AND RESIDENCE AND DIRECTIVE 2004/38
- Self-employed same rights as workers to work, bring family members and retire in host state.
PROBLEM OF QUALIFICATIONS
- Professional in one MS very likely to have same skill as professional in other member state so not
fair if qualifications not recognised.
- Hence Directive 2005/36 if qualifications allow to be professional in one MS, allowed to do same
job in other MS subject to certain limited derogations. Consolidated 3 earlier directives.
- REGULATED PROFESSION: one where you need legally recognised qualifications basically.
- Relates to profession as one that needs certain qualifications in that member state. Hence can
change in different states. Eg Aranitis 1996 geology qualification obtained in Greece but told
cannot rely on Directive provisions in Germany as geology an unregulated profession.
- Pu li se to a still e egulated p ofessio Burbaud 2003 French authorities refused health
service manager job to qualified Portuguese national. Insisted on obtaining French qualification.
Held defi itio of egulated p ofessio fo EU la to de ide as otherwise national legislatures
could just decide on what EU law applies to.
Art.4 Directive 2005/36 elaborates on effect of Qualifications Directive eg allows pursuit of profession
under same conditions as nationals.
FREE PROVISION OF SERVICES
- Art.5: MS will not restrict for any reason relating to professional qualifications, free provision of
services in another MS if service provider is legally established in other MS pursuing same
profession there and if service provider moves, if he has pursued profession for 2/10 preceding
years if profession not regulated. 2 year requirement not apply if regulated profession.
- Only applies to temporary and occasional basis of work.
- If service provider moves, will be subject to laws linked to qualifications malpractice etc.
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, - Art.6 MS may exempt service providers from requirements of established professionals in
territory relating to authorisation by registration with or membership of a professional
organisation or body.
- Art.7 MS can require SP informs competent authority when moving to other state in advance of
doing so in writing.
- Art.8 Competent authorities of host state mat ask authorities of SP state of establishment to
p o ide a i fo ele a t to legalit of esta lish e t, SP s good o du t a d absence of any
disciplinary or criminal sanctions of professional nature.
- Art.9 Competent authorities of host state may require SP to provide service recipient with
various info such as name and address of competent supervisory authority (if any) in Sate of
establish e t, SP s p ofessio al title o fo al ualifi atio a d state i hi h it as a a ded
and details of any insurance cover or other means of professional liability protection.
FREEDOM OF ESTABLISHMENT
Title on establishment further subdivides into 3 chapters
- General system for recognition of evidence of training (Chapter 1, Arts.10-15)
- Recognition of professional experience (Chapter 2, Arts.16-20)
- Recognition on the basis of co-ordination of minimum training conditions (Chapter 3, Arts.21-52)
CHAPTER 1
- Art.11 Divides professional competence into 5 levels. States must accept for same profession
level below theirs.
- Art.13 Conditions for recognition, same conditions as nationals etc.
Trevor Tayleur 2007 provides useful examples of how would work:
- If Germany requires 5 year uni study for given profession while UK 3, Germany gives level 5 but
UK level 4. Germany would have to accept subject to compensation measures as level is
immediately below (Art.13(1)).
- But if Hungary 2 years and level 3, UK would have to accept subject to compensation measures
but Germany not.
COMPENSATION MEASURES ART.14
- MS can require applicant to complete adaptation period of up to three years or take aptitude
test if duration of training is at least 1 year shorter than same in host state, if training received
covers substantially different matters than that of other MS or if regulated profession in host MS
o p ises egulated p ofessio al a ti ities hi h do t e ist i o espo di g p ofessio of
home MS within meaning of Art.4(2) and difference is in the specific training of that state and
covers substantially different matters than what applicants qualification evidences.
- If MS chooses to use this option must allow applicant choice of aptitude test or adaptation
period.
- Except if profession requires precise knowledge of national law and if assistance concerning
national law is essential and constant aspect of professional activity, host MS may stipulate
either adaptation period or aptitude test.
- Principle of proportionality.
Such measures in previous directive and discussed in Beuttenmuller 2004: differenced in content of
education and training not sufficient for refusal to allow to practice profession, at most where
differences are substantial MS can require applicant satisfy compensatory measures.
- However although entitled to these measures, MS not obliged to follow them. Therefore if
partially trained in a job in other MS, can take compensatory measures for some parts of
egulated p ofessio ut do t ha e to i pa ts he e qualified (Canales y Puertos 2006)
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