4 questions on free movement

1
4 questions on free movement

• Does the rules on free movement apply?
• Inter-state element
• State measure?
• What rules are applicable?
• Secondary legislation or primary law
• Is the measure a trade barrier?
• Discriminatory
• Non-discriminatory
• Is their a relevant exception?
• Treaty based exceptions
• Rule of reason
• Proportionality

2
Service or establishment?

• C-55/94 Gebhard, para 27 och 28
• Service
• the temporary nature of the activities, in the
  light of
• duration of the provision of the service,
• regularity
• periodicity
• continuity
• - some form of infrastructure, office, chambers
  or consulting rooms, may be included
• Establishment
• - stable and continuous basis

3
Establishment or worker?

• C-268/99 Jany, para 71
• Establishment
• Provide for a services
• outside any relationship of subordination
  concerning the choice of that activity, working
  conditions and conditions of remuneration
• under that person's own responsibility and
• in return for remuneration paid to that person
  directly and in full.

4
Right to free movement of establisment and
services includes

• Right to leave of entry and to reside
  (establishment) in other Member States in order
  to engage in an economic activity
• Right to access to market under equal conditions
• Some social and other affiliated rights

5
Barriers to trade

• Discriminatory/distinctly applicable
• Non-discriminatory/indistinctly applicable
• National measures liable to hinder or make less
  attractive the exercise of fundamental freedoms
  (Gebhard, para 37)
• A right to receive or to benefit as recipient
  from the services without being hampered by
  restrictions (Gambelli, para 55)
• All measures which prohibit, impede or render
  less attractive the exercise of freedom of
  establishment (Caixa-Bank France, grund 11)
• No Keck-exception!

6
C-288/89 Gouda, para 14

• Professional rules intended to protect the
  recipients of a service
• Protection of intellectual property
• Protection of workers
• Consumer protection
• Conservation of the national historic and
  artistic heritage
• Turning to account the archaeological,
  historical, and artistic heritage of a country
  and the widest possible dissemination of
  knowledge of the artistic and cultural heritage
  of a county and
• Cultural policy

7
The Gebhard-test

• National measures liable to hinder or make less
  attractive the exercise of fundamental freedoms
  guaranteed by the Treaty must fulfil four
  conditions
• they must be applied in a non-discriminatory
  manner
• they must be justified by imperative requirements
  in the general interest
• they must be suitable for securing the attainment
  of the objective which they pursue
• and they must not go beyond what is necessary in
  order to attain it.