Freedom Of Services Notes

• A56 only makes reference to provision but CJ has made it clear that it applies to receiving services as well as provision of services

• Freedom of establishment (a physical presence in another MS) is not required for A56 to be activated

• Covers individuals and companies providing services

• Van Binsbergen v Bestuur: confirms that A56 is directly effective: horizontally and vertically

• Limitations on freedom to provide services are the same as on establishment – Article 62 TFEU

• A57 says that A56 will apply where none of the other freedoms apply – ‘catch all’ freedom

“Services”

• A57 – services – ‘normally provided for remuneration’ : industrial, commercial, activities of craftsmen, activities of the professions: e.g. legal service, insurance + other financial services

• Prostitution recognised as service in Jany and the provision of abortion in Society for the Protection of Unborn Children v Grogan – but doesn’t stop MS from prohibiting the services e.g. abortion – Ireland

“Genuine and effective economic activity”

• Widely interpreted:

  • Deliege v Ligue Francophone: Sporting activity (Judo) at amateur level was an economic activity for purpose of A56

  • Her Majesty’s Customs and Excise v Schindler: lotteries = an economic activity: services provided for remuneration

• Provision of information will fall outside A56 unless there is a connection between the persons distributing and the provider of the services

  • Grogan – distribution of information about abortion not protected as it was provided not by the clinic themselves but by students as an exercise in freedom of expression

Cross border element

• Must be some cross border element – Procureur du Roi v Debauve: A56 won’t apply to ‘activities whose relvent elements are confined within a single MS’ – but CJ has become more flexible – Deliege – sufficient that she participated in competitions in other MS 0 in de Coster v College des bourgmestre – local tax on ownership of satellite dishes breached A56 because would dissuade people from receiving programmes broadcast in other MS

• Provider/Recipient of the service don’t have to be in different MS: Hubbard v Hamburger: both recipient and provider in UK: but had to make claim in German court – German law was discriminatory

Rights granted

• Right to move and reside to provide services: same as for workers – Directive 2004/38 (can move/reside)

• Right to move and reside to receive services: temporary right of residence during stay

  • Luisi: CJ recognised that in order to facilitate the provision of services, it might be necessary for people to move to receive services

• Right to operate as a business: right to equality of access to the market – Collective Antennevoorziening Gouda – direct/indirect discrimination both covered – directly only justified on grounds of policy, security or health

  • Nationality/residency requirements

    • Discriminatory residency requirements are indirectly applicable measures and so can be justified – Van Binsbergen – Dutch non-resident lawyer challenged on the basis that only Dutch-resident lawyers can represent clients in court – prohibited unless rule applied to all individuals within a Member State and can be justified to enforce rules of professional conduct

• Social rights: Not the same as received by workers but receive some social rights

  • CJ uses broad interpretation of TFEU Articles 49, 56 and 18 – Commission v Italy (Italian Housing): Italian provisions only allowing Italians to have access to social housing – A49 and 56 were an extension of Article 18 – prohibited national measures creating obstacle to pursuit of activity as self-employed person

  • Similar conclusion in Cowan v Tresor: Cowan mugged while on holiday in Paris – asked for compensation from public funds: only available to French nationals – compensation itself not a service but other things that he received as a tourist (accommodation etc.) were, and refusal to compensation = barrier to pursuit

Discrimination under A56 TFEU

• Indistinctly applicable rules: Initially not protected by A56: Koestleri: thought that EU would take further steps to harmonise national rules – but legislation about provision of services slow to appeal so left to individuals

  • Commission v Germany (Insurance Services): national rules which...

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