European Law
Hoorcollege 1 European Law 31/08/2020 introduction
Introduction, the EU internal market & Recap
Sources of EU Law
Primary sources
Treaties
Protocols & annexes
EU Charter of Fundamental Rights
Secundary sources
Legislative and non-legislative acts, including Regulations, Directives, Decisions
Unwritten general principles of EU Law
Case Law of the CJEU
Article 26 TFEU: internal market
Common characteristics free movement rules
Part of the internal market
Direct effect
Economic activity
Prohibited: with and without distinction; development of the criteria of ‘market access’
Treaty exceptions and ‘rule of reason’ exceptions
No internal situations
Free movements of goods
Article 28 TFEU: customs Union
Case law on Article 34 TFEU (Dassonville, Cassis de Dijon) has been pivotal
CJEU developed important principles and provided for important definitons and
interpretations
Harmonisation? WHy, what and effects
Why?: negative and positive integration
o Removing barriers to trade and free movement
o Creating level playing field
o Protecting public interests
What?: approximaiton of national laws
Effects:
o Before harmonisation treaty provisions on free movement
o After harmonisation EU measures (legislative acts) become framework of review
o BUT different techniques of harmonisation
, European Law
Hoorcollege 1 European Law 1/09/2020
Articles 49 and 56 TFEU
What is the scope of these articles?
Economic connotation
o Services: art. 57 TFEU – remuneration
Medical services are included in this article Watts case paragraph 91
Including services that are paid by third parties (advertising), where services
may be free for users and money is made from users’ data
Lawful activities (Josemans case, paragraph 42)
o When were talking about selling softdrugs, are we talking about lawful activities?
Eventhough we have in the Netherlands a policy of toleration, in other member
states of the EU selling softdrugs is criminalised. So when were talking about selling
softdrugs, the free movement rules do not apply!!
o But Josemans was also selling soft drinks and coffee and his laywer said; these are
lawful activities. The court said that this was right and this falls under the scope of
lawful activities of the free movement rules
Personal scope
(limited) horzontal direct effect
Even small restrictions are prohibited no ‘de minimis’
Josemans case paragraph 45 & 46
Freedom of establishment
Establishment – natural persons
Partcipation on a stable and continous basis in economic life of MS Gebhard, paragraph 25
Gebhard case: its about a German lawyer and he wants to start his own law firm in Italy. He only has
a diploma from Germany, not from Italy. It is not allowed to start your own law firm in Italy without a
document from this country.
What is prohibited by Artcile 49 TFEU?
Natural persons
o Market access rights
Discrimination prohibited
All restrictions on market access are prohibited, UNLESS THEY CAN BE
JUSTIFIED, and they can be justified when they are proportionate and in the
public interests.
Gebhard case, paragraph 37
o Migration rights if you think clear you understand that you need the right to
migrate to start a market in a member state. Otherwise you cant do anything with
your market
How could national measures be justified?
Treaty exceptions: articles 51 and 52 TFEU
Rule of reason-exception (mandatoyr requirements) (Gebhard)
o Conditions
Public, non-economic interest
Suitable
Proportionate no less restrictive measure available
No harmonisation
Free movement of services – concept
, European Law
The concept of ‘service’
Article 57 TFEU
Different kinds of cross-border provision of services
Non-tangible (as compared to goods)
Remuneraton
Temporary character (Gebhard)
Residual character (Art. 57 TFEU) NO!!
Free movement of services - content
What is prohibited by Article 56 TFEU?
Prohibited is each measure that directly affects access to the market in services in other
Member States (Alpine Investments, paragrpah 38)
Free movement of services – exceptions
How could national measures be justified?
Treaty exceptons: article 62 TFEU jo artt. 51 and 52 TFEU
Rule of reason-exceptions (mandatory requirements)
o Conditions!
Alpine Investments paragraph 45 proportionality
Watss paragraph 116 principles of good governance
Servicde Directive in short
Chapter III: establishment
o Article 9 SD codification of case law: market access
Chapter IV: services
o Article 16 SD codification of case law (Alpine investments): market access, but
more limited pssibilities for Member States to restrict free movement of servies
Hoorcollege 1 European Law 31/08/2020 introduction
Introduction, the EU internal market & Recap
Sources of EU Law
Primary sources
Treaties
Protocols & annexes
EU Charter of Fundamental Rights
Secundary sources
Legislative and non-legislative acts, including Regulations, Directives, Decisions
Unwritten general principles of EU Law
Case Law of the CJEU
Article 26 TFEU: internal market
Common characteristics free movement rules
Part of the internal market
Direct effect
Economic activity
Prohibited: with and without distinction; development of the criteria of ‘market access’
Treaty exceptions and ‘rule of reason’ exceptions
No internal situations
Free movements of goods
Article 28 TFEU: customs Union
Case law on Article 34 TFEU (Dassonville, Cassis de Dijon) has been pivotal
CJEU developed important principles and provided for important definitons and
interpretations
Harmonisation? WHy, what and effects
Why?: negative and positive integration
o Removing barriers to trade and free movement
o Creating level playing field
o Protecting public interests
What?: approximaiton of national laws
Effects:
o Before harmonisation treaty provisions on free movement
o After harmonisation EU measures (legislative acts) become framework of review
o BUT different techniques of harmonisation
, European Law
Hoorcollege 1 European Law 1/09/2020
Articles 49 and 56 TFEU
What is the scope of these articles?
Economic connotation
o Services: art. 57 TFEU – remuneration
Medical services are included in this article Watts case paragraph 91
Including services that are paid by third parties (advertising), where services
may be free for users and money is made from users’ data
Lawful activities (Josemans case, paragraph 42)
o When were talking about selling softdrugs, are we talking about lawful activities?
Eventhough we have in the Netherlands a policy of toleration, in other member
states of the EU selling softdrugs is criminalised. So when were talking about selling
softdrugs, the free movement rules do not apply!!
o But Josemans was also selling soft drinks and coffee and his laywer said; these are
lawful activities. The court said that this was right and this falls under the scope of
lawful activities of the free movement rules
Personal scope
(limited) horzontal direct effect
Even small restrictions are prohibited no ‘de minimis’
Josemans case paragraph 45 & 46
Freedom of establishment
Establishment – natural persons
Partcipation on a stable and continous basis in economic life of MS Gebhard, paragraph 25
Gebhard case: its about a German lawyer and he wants to start his own law firm in Italy. He only has
a diploma from Germany, not from Italy. It is not allowed to start your own law firm in Italy without a
document from this country.
What is prohibited by Artcile 49 TFEU?
Natural persons
o Market access rights
Discrimination prohibited
All restrictions on market access are prohibited, UNLESS THEY CAN BE
JUSTIFIED, and they can be justified when they are proportionate and in the
public interests.
Gebhard case, paragraph 37
o Migration rights if you think clear you understand that you need the right to
migrate to start a market in a member state. Otherwise you cant do anything with
your market
How could national measures be justified?
Treaty exceptions: articles 51 and 52 TFEU
Rule of reason-exception (mandatoyr requirements) (Gebhard)
o Conditions
Public, non-economic interest
Suitable
Proportionate no less restrictive measure available
No harmonisation
Free movement of services – concept
, European Law
The concept of ‘service’
Article 57 TFEU
Different kinds of cross-border provision of services
Non-tangible (as compared to goods)
Remuneraton
Temporary character (Gebhard)
Residual character (Art. 57 TFEU) NO!!
Free movement of services - content
What is prohibited by Article 56 TFEU?
Prohibited is each measure that directly affects access to the market in services in other
Member States (Alpine Investments, paragrpah 38)
Free movement of services – exceptions
How could national measures be justified?
Treaty exceptons: article 62 TFEU jo artt. 51 and 52 TFEU
Rule of reason-exceptions (mandatory requirements)
o Conditions!
Alpine Investments paragraph 45 proportionality
Watss paragraph 116 principles of good governance
Servicde Directive in short
Chapter III: establishment
o Article 9 SD codification of case law: market access
Chapter IV: services
o Article 16 SD codification of case law (Alpine investments): market access, but
more limited pssibilities for Member States to restrict free movement of servies
