Samenvatting European Law 2022
Week 1 - Setting the scene, Freedom of Establishment and to Provide Services
Chapter 1: The Development of European Integration
After the Second World War nations agreed that international affairs should be organized to
reduce the possibility of such conflict recurring. The European Coal and Steel Community
(ECSC) was signed in 1951 by France, Germany, Belgium, The Netherlands and
Luxembourg. The European Economic Community (EEC, also known as the Treaty of
Rome) created a common market. The barriers to trade were removed. It also included the
free movement of the economic factors of production: free movement of goods, workers,
capital and establishment and provision of services. The Single European Act (SEA) was
signed in 1986 and entered into force in 1987. The Treaty on the European Union was
signed in Maastricht in 1992. It entered into force in 1993. The Treaty of Lisbon was signed
in 2007 and entered into force in 2009.
Post-Lisbon:
- The control of the EU over national budgetary policy was too weak.
- In Poland and Hungary the independence of the courts cannot be guaranteed.
- The bij number of refugees was overwhelming for the system that has been made by
the EU for asylum seekers.
- 52 percent of the UK voted to leave the EU in 2016. See art. 50 TEU.
- There were multiple dimensions to the crises: health, free movement and macro-
economic policy.
Chapter 18: The Single Market
The SEA introduced two major legislative innovations for the single market: art. 26 and art.
114 TFEU:
Art. 26 defines the internal market. The formulation consisted of two parts: it was to be an
area without internal frontiers and there could be free movement of goods, persons, etc. Art.
27 qualifies art. 26.
Art. 114 facilitates the Passage of Harmonization Measures. ‘’The following provisions shall
apply for the achievement of the objectives set out in art. 26. The European Parliament and
the Council adopt the measures for the approximation of the provisions laid down by law in
Member States which have as their object the establishment and functioning of the internal
market’’. The limits of this article are confirmed by the ECJ in Tobacco Advertising.
The completion of the single market was dependent upon two conditions: (1) the reform of
the legislative procedure to facilitate legislation and (2) a new approach to harmonization
was needed. The Commission proposed a New Approach. The elements of the New
Approach were based on mutual recognition, according to the principle of Cassis de Dijon:
national rules that did not come within the mandatory requirements would be invalid,
legislative harmonization was to be restricted to laying down health and safety standards,
promotion of European standardization.
The New Approach is made for the national rules that survive the scrutiny of art. 36 and the
mandatory requirements of Cassis de Dijon. Standardization is a central factor in the New
Approach to harmonization, by reducing barriers to trade and increasing the competitiveness
of European industry.
,Chapter 23: The Freedom of Establishment and to Provide Services
According to early case law, Treaty provisions on persons had vertical effect and could be
invoked against the State only. However, Walvre and Korch showed that ‘the rule of non-
discrimination applies in judging all legal relationships, implying that free movement of
persons provisions had horizontal direct effect as well and could therefore be invoked
against ‘private’ i.e. non-State actors also. Yet, subsequent case law has narrowed this
approach. Yet, in Angonese the Court said that the prohibition of discrimination in art. 45
TFEU has both vertical and horizontal direct effect. In Viking and Laval it was considered
whether this extended to art. 49 and 56 TFEU as well. The Court held that these articles
applied to trade unions contemplating or taking strike actions - these are by definition
autonomous from the State.
Art. 49 TFEU: The Right of Establishment
Art. 49 TFEU states the freedom of establishment. The provisions have a vertical direct
effect: they apply to Member States and also to regulatory bodies. Less clear is the extent to
application to private bodies (whether they have horizontal effect).
Direct and indirect discrimination on the grounds of nationality are prohibited.
Direct discrimination → less favourable treatment on the grounds of origin. Can only
be saved by express derogation.
Indirect discrimination → concers a rule, such as a residence requirement of the
corporate headquarters, which applies to all companies but in fact
disadvanatages those with only a branch in the host State. Such a rule can be
justified on public interest grounds as well as saved by the express derogations.
Alpine Investments: concerned a Dutch rule prohibiting cold-calling by the Dutch financial
services industry both within and outside the Netherlands. It was argued that since this rule
was non-discriminatory, EU law would not apply. The Court disagreed and said the Dutch
rule breached art. 56 TFEU since although non-discriminatory, it ‘direclty affects access to
the markets in services in the other Member States and is thus capable of hindering intra-
Union trade in services’.
EU free movement law only applies where there is an interstate element, otherwise national
law only applies, this is called ‘the wholly internal rule’. An interstate element would be
present if an individual has moved, is in the course of moving or likely to move between one
Member State and another.
Some problems may arise concerning the ‘wholly internal rule’:
- Reverse discrimination, that is, EU citizens who migrate may be in a more favorable
position than those who stay home.
- With regard to art. 30 TFEU on customs duties, the CJEU clarified that internal
barriers within Member States should be removed. However, regarding the free
movement of persons, the wholly internal rule continues to apply (Walloon).
- Carpenter and Ruiz Zambrano suggest that it takes very little movement for EU law
to apply.
Art. 56: Free Movement of Services
, The difference between art. 49 and art. 56 is the fact that a degree of permanence is
required for the freedom of establishment which is not required for the free movement of
services. Art. 56 prohibits restrictions on the freedom of services and art. 57 defines the
concept of services. This provision, however, has been assessed by the Court’s case law:
the case law is leading, causing the content of art. 56 and 57 to be a bit outdated (e.g. the
idea that the provision on services has a residual character is not accurate since the
digitization of our economy has caused services to be of uppermost importance).
Three conditions must be satisfied for the engagement of the provision of the free movement
of services:
First, there must be a service. Art. 57 provides us with some examples, but there are more
examples where case law has gone beyond the traditional definition and has said that
‘services’ include:
- Medical services (Watts)
- Cold-calling (Alpine)
- Education
- Call services
- etc
Secondly, the service must normally be provided for remuneration (vergoeding). This
excludes voluntary services for the Treaty. There has to be compensation for the service in
question.
Thirdly, the freedom to provide services envisages a more temporary relationship between
the provider or receiver and the Host State. To assess whether activities are temporary or
continuous, according to Schnitzer, one needs to look at not only the duration but also the
regularity, periodicity and continuity of the economic activity in question.
In the van Binsbergen case it is ruled that art. 56 has a direct effect. The Treaty does not
apply to ‘wholly internal situations’. Art. 56 is also applicable to the freedom to receive
services, see Luisi and Carbone. This is confirmed in Cowan.
Four conditions that apply to justifications for restrictions on the freedom of establishment:
1. The restriction must be adopted in pursuit of a legitimate public interest compatible
with EU aims;
2. The restriction must be equally applicable to persons established within the state and
must be applied without discrimnation
3. The restriction imposed on the provider of services must be proportionate to the need
to observe the legitimate rules in question
4. The restricted measure should respect fundamental rights, see Carpenter.
Week 2 - Competition Law I
