All seminars week 1-8
Week 1; the freedom of establishment and to provide services
The four freedoms: goods, persons (establishment), services and capital.
Question 1
which freedom is exercised by John? Services or establishment?
First; determine which freedom it is, also argument why the others are
NOT.
The difference between establishment and services can be found in the
Gebhard case para. 27. It is services when it is temporary and
establishment when it is on a stable and continuous basis.
This would be the freedom of services art. 56-57 TFEU:
- Cross boarder: yes John is from Dublin and provides services in
Milano
- Economic activity: yes, het gets paid per service (indication for
services) he delivers so there is a form of;
- Remuneration
- Self-employed/independent: yes, he does not work under the
supervision of someone else argue why it is not a worker.
- Temporary: yes he is quite often in Milano, but not on a permanent
basis look to regularity, periodicity and continuity (par. 27
Gebhard)
So the requirements of art. 56 TFEU services are met. By the way it is not
decisive that he receives equipment in order to deliver his services like
mentioned in the case.
Question 2A
establishment and a restriction?
1. First argue which freedom it is, why not services? Use Gebhard.
2. This is about the freedom of establishment: art. 49 TFEU. The
requirements:
- Cross boarder: Yes, mason betting is from the UK and Petroni is in
Italy.
- Economic activity Yes it is about a betting service and Petroni
works on behalve of UK betting. He seems to be an agent
indication for establishment.
- Permanent and continuous basis: regularity, permanency, continuity,
periodicity par. 27 (gebhard). Petroni established an agency on
behalf of Mason, petroni is physical present.
,This seems to be a case of secondary establishment: Petroni forms a
secondary establishment of this company he collects beets on behalf of
Mason betting UK, this could be an indication for him being an agent and
therefore establishment.
3. Is there a restriction in this case?
This is not a rule who discriminates between members of MS, not
indirect and not direct. However a non-discriminatory restriction of the
internal market can also be prohibited according to the CJEU (Gebhard).
Gebhard: national measures liable to hinder or make less attractive the
exercise of fundamental freedoms. This is the case: the requirements
make it less attractive to use the freedom of establishment. Because of
the requirements Mason cannot deliver its services. So: the Italian
legislation forms a restriction of art. 49 TFEU.
Question 2B
Same question as 2A, but then with regard to the freedom of services art.
56 TFEU. In this case the Italian legislation can directly affect the access to
the markets in services in other MS and is thus capable of hindering intra-
union trade para 38 Alpine investments.
In this case the work of Petroni would probably not fall within the scope of
the freedom of services art. 56 TFEU, because it is not on a temporary
basis. An is he probably also not completely independent, self-employed,
because he works on behalf of Mason?
Possible to argue that it is temporary: Petroni is just facilitating for Mason,
the role of Petroni is very small from seminar question (I don’t think this
is a good answer).
Question 3
About art. 56 TFEU (services), restriction and justification and the Watts
case.
In this case, Mr Lampionosi had received a service in another member
state, Italy, than the state of his insurance company. The fact that the
Dutch legal rule refuses the reimbursement of medical services received in
other member states, might violate article 56 TFEU, because it could be
discriminatory and form a restriction to the market access in general.
1. Does art. 56 TFEU apply?
- Cross boarder: yes
- Economic activity: yes he pays for the surgery (remuneration)
- Temporary: yes it is one time it cannot be establishment because
the recipient crosses the boarder, this is the same when the service
itself crosses the boarder.
,2. Rules of free movement have horizontal and direct effect: so it can
be relied upon against a private insurance company.
3. Is there a restriction on art. 56 TFEU? Use the Watts case for this
question!
In this case reimbursement is also rejected because of the service is
received in another MS. Medical services are also services par. 87
Watts.
The Dutch rule forms a restriction to the market access, because this
makes it less easy or attractive for citizens of other member states
then Italy, to receive medical services in Italy. This means that the
Dutch rule prohibiting the reimbursement is incompatible with article
56 TFEU.
4. Determine what kind of restriction it is? Non, direct or indirect
discriminatory.
Direct: only treaty justification: public policy, health and security.
Indirect and non: rule of reason: legitimate aim and proportionality
test, also in line with fundamental rights.
5. Apply the justification
Argument from the health insurance can be: protection of the
financial balance of the social security system (Watts 103).
Watts par. 89 and 90 important.
Watts par. 114 the exception should be necessary and
proportional.
They may have a legitimate goal, but it is probably not proportional.
Appropriate: yes because it preserves financial stability; because
otherwise everybody would go to the MS with the most cheap
option.
Is it necessary: no, it can be done with less restrictive measures: like
only reimburse the amount of your own state and not higher.
, Week 2; free movement of workers and persons & posting of workers
Question 1
is about workers
A) By the concept of a worker is meant; Blum case para 17 a person
who performs economic activity for remuneration/wage under
supervision of someone else. It has to be genuine and real work of
economic value (para 20), which is genuine and effective and not
merely marginal an ancillary (para 21).
B) The protection given to a worker by art. 45 TFEU It gives the right to
equal treatment with regard to the conditions of employment.
Direct, indirect discrimination (based only on nationality) and
obstacles for free movement are prohibited.
Only with non-discriminatory restrictions an objective justification is
possible!
C) You can invoke art. 45 TFEU in a relationship between employee and
employer it has direct effect (Bosman para 93), and also
horizontal effect (Bosman para 82,83). It has to have horizontal
effect, otherwise an employee could not rely on the provision in
respect of the relation with their employer.
Question 2A
freedom of workers, discrimination.
1. This is about the freedom of workers art. 45 TFEU
- Cross boarder yes he is Italian and wants to work in NL
- Definition is in the Blum case
- Economic activity yes he will receive remuneration for the job
- Wage he would receive payment for the job, it is not voluntary.
- Under supervision yes he will not be self-employed and
independent
- Genuine and real work of economic value yes, the job he is
applying for falls under the term work
