Week 1 – Services and establishment
What is prohibited by art.49 TFEU?
Market access rights may not be restricted
- Discrimination on grounds of nationality prohibited
- Restrictions on market access (Gebhard, para 37)
Migration rights may not be restricted
- Directive 2004/38
What is prohibited by Article 56 TFEU?
Market access rights may not be restricted
- Discrimination on grounds of nationality prohibited
- Restrictions: Schindler, para 43: “national legislation may fall within the ambit of
Article 59 (now 65) of the Treaty, even if it is applicable without distinction, when it is
liable to prohibit or otherwise impede the activities of a provider of services
established in another Member State where he lawfully provides similar services.”
Migration rights may not be restricted
- Directive 2004/38
,1. Pre test
Is EU Law applicable?
- Does the person/ company have the nationality of a member state?
- Cross border situation?
- Economic activity? for remuneration’
Economic, lawful activities
- which freedom? -> services, establishment
If those are met? EU law is applicable
2. Applicable law
- Establishment
Definition: participation on a stable and continuous basis in economic life of MS
Gebhard para 25
Art. 49 TFEU Or service directive
- Services
Difference between Establishment: services is on a temporary basis
Article 56 57 TFEU
Service Directive
Always look at the SD, this is the lex specialis. If it falls within the scope of the SD (article 1-2-
3 SD), you look at the SD.
3. Wat kind of restriction?
Direct discrimination: directly about nationality
Indirect discrimination: when your nationality is indirect disadvantaged
Non-discriminatory measures -> market access: obstacles to access the market, just less
interesting for foreign companies
4. Sub conclusion
, 5. Justification / expectations
- Treaty exceptions:
article 51/52 and 62 TFEU
direct discrimination
- Rule of reason
why is the distinction between direct / indirect discrimination important?
Direct can only be justified by the treaty exceptions, never the rule of reason
Freedom of movement of goods -> Gebhard para 37 also for services and establishment
- Nondiscriminatory in the sentence of no direct discriminatory
- Public interest which is not economic in nature (open list in contrary to art.52)
- Suitable to achieve the public interest that is being pursued
- Necessary (to achieve that goal, least intrusive) and proportionate
In both ways, the justification must be necessary and proportional
Service directive justifications
Art.16 -> services
Art.(9) 14/15 -> establishment
6. Conclusion
What is prohibited by art.49 TFEU?
Market access rights may not be restricted
- Discrimination on grounds of nationality prohibited
- Restrictions on market access (Gebhard, para 37)
Migration rights may not be restricted
- Directive 2004/38
What is prohibited by Article 56 TFEU?
Market access rights may not be restricted
- Discrimination on grounds of nationality prohibited
- Restrictions: Schindler, para 43: “national legislation may fall within the ambit of
Article 59 (now 65) of the Treaty, even if it is applicable without distinction, when it is
liable to prohibit or otherwise impede the activities of a provider of services
established in another Member State where he lawfully provides similar services.”
Migration rights may not be restricted
- Directive 2004/38
,1. Pre test
Is EU Law applicable?
- Does the person/ company have the nationality of a member state?
- Cross border situation?
- Economic activity? for remuneration’
Economic, lawful activities
- which freedom? -> services, establishment
If those are met? EU law is applicable
2. Applicable law
- Establishment
Definition: participation on a stable and continuous basis in economic life of MS
Gebhard para 25
Art. 49 TFEU Or service directive
- Services
Difference between Establishment: services is on a temporary basis
Article 56 57 TFEU
Service Directive
Always look at the SD, this is the lex specialis. If it falls within the scope of the SD (article 1-2-
3 SD), you look at the SD.
3. Wat kind of restriction?
Direct discrimination: directly about nationality
Indirect discrimination: when your nationality is indirect disadvantaged
Non-discriminatory measures -> market access: obstacles to access the market, just less
interesting for foreign companies
4. Sub conclusion
, 5. Justification / expectations
- Treaty exceptions:
article 51/52 and 62 TFEU
direct discrimination
- Rule of reason
why is the distinction between direct / indirect discrimination important?
Direct can only be justified by the treaty exceptions, never the rule of reason
Freedom of movement of goods -> Gebhard para 37 also for services and establishment
- Nondiscriminatory in the sentence of no direct discriminatory
- Public interest which is not economic in nature (open list in contrary to art.52)
- Suitable to achieve the public interest that is being pursued
- Necessary (to achieve that goal, least intrusive) and proportionate
In both ways, the justification must be necessary and proportional
Service directive justifications
Art.16 -> services
Art.(9) 14/15 -> establishment
6. Conclusion
