Freedom Of Establishment Notes

EU Law: Freedom of Establishment

Understand when Article 49 TFEU is applicable

• Article 49: ‘restrictions on the freedom of establishment of nationals of a MS in the territory of another MS shall be prohibited’. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any MS established in the territory of any MS.

• Applies to:

  • Self-employed persons (Art 49, defined in Jany, see below).

  • Companies and firms (Art 54).

• And, Art 49, applies to secondary forms of establishment, i.e. agencies, branches and subsidiaries

• Prohibits:

  • Restrictions on Freedom of Establishments.

• Rights include:

  • Setting up and managing undertakings such as:

    • Companies & firms

    • Agencies, branches and subsidiaries

• Articles 50-53: complement Art 49 by respectively providing for the issuing of directives for the purpose of attaining the free movement of establishment; and for the mutual recognition of professional qualifications.

The distinction between establishment and services

• Concept of establishment under Art 49, CF concept of a service under Art 56 TFEU.

• Establishment = a permanent presence by a person, firm or company in a MS for economic purposes. Eg a company/person relocating to another MS on a permanent basis, or setting up a permanent branch there.

• CF a service, Art 56: does not entail any physical presence by provider in the MS, or only a temporary presence. Art 47: ‘the person providing a service may ... temporarily pursue his activity in the MS’.

• What constitutes establishment:

  • (1) Permanent basis (Steymann; Insurance Services; Factortame II).

  • Steymann v Staatssecretaris (1988), Permanent basis in MS; OR without foreseeable limit to duration. In this case, ECJ held: activities on permanent basis/without foreseeable limit did not come under ‘services’—they either came under free movement of workers, or freedom of establishment, depending on the case.

  • Echoed by ECJ in Commission v Germany (‘Insurance Services’): what comes under right of establishment? ‘an insurance undertaking of another MS which maintains a permanent residence in the MS in question..’, even if merely an office managed by undertaking’s own staff or by an authorised agent/agency authorised to act on permanent basis.

  • R v Sec of State for Transport, ex parte Factortame (‘Factortame II’): concept of establishment = actual pursuit of an economic activity through a fixed establishment for an indefinite period in another MS.

  • (2) ‘Stable and continuous’ (Gebhard).

  • Gebhard v Consiglio (1995), ‘Stable & continuous basis in the economic life of the MS.’ [re German lawyer, setting up a chambers in Italy].

    • ECJ contrasted this with a person moved to another MS to provide services on a temporary basis, which would not fall under freedom of establishment.

    • ECJ held, you determine whether it is permanent, not only by looking at the permanency, but by looking at:

    • Gebhard, temporary v permanent nature of activities determined in light of:

    • Duration

    • Regularity

    • Periodicity;

    • Continuity

  • In this case, ECJ held that the activities of a German national who had practiced as a lawyer from chambers in Italy for several years, then set up his own chambers in Italy, fell within freedom of establishment. He was pursuing a professional activity on a stable & continuous basis in another MS, where he held himself out to, amongst others, nationals of that State from an established professional base.

Art 49 can have direct effect

• Initially, seemed Art 49 would fail ‘unconditional; Van Gend test for DE: Note a foregone conclusion it would have direct effect: Art 49 TFEU began with the words ‘within the framework of the provisions set out below’. These words have been included since article first appeared in Treaty of Rome 1957. This placed an obligation on the Council, acting on proposals from Commission, to draw up a general programme for the abolition of restrictions on freedom of establishment, which the Council did in 1961, and to issue directives to implement that programme. All of this appeared to make the freedom of establishment conditional upon the enactment of positive legislative measures; and thus incapable of satisfying Van Gend en Loos criterion of unconditionality for a treaty article to have direct effect.

• However, implementation proved to be an extremely slow process. Original EEC treaty had provided for restrictions on freedom of establishment to be abolished by the end of the transition period, but this objective had not been achieved when the transition period expired.

• This was not a foregone conclusion: because of way freedom of establishment was framed. The idea is that freedom of establishment is not available immediately, but instead EU would enact directives and other legislation to provide for the right of freedom of establishment. These weren’t put in place.

• Under Van Gen den Loos, it shouldn’t have been unconditional, because it was dependent on directives being enacted, which they weren’t.

• Reyners v The Belgian State (1974): vertical direct effect (re case against Belgian state (the Belgian Bar), re a Dutch national refused admission by Belgian Bar).

  • Nonetheless, in Reyners, ECJ said: Art 49 became directly effective.

  • ECJ: Art 49 TFEU had been capable of having direct effect since the end of the transition period: ‘in laying down that FoE shall be attained at the end of the transitional period, [Art 49 TFEU] imposes an obligation to attain a precise result’—the progressive measures would have been the fulfilment easier, but it was not dependent on them.

  • So held, rationale for DE: Art 49 laid down a clear and precise obligation, that should have been achieved by end of the transition period—fulfilment of obligation not dependent on the implementation of a programme of positive measures, that programme was only to make that easier, not dependent on it.

  • In this case, held that a Dutch national, who had obtained his legal education in Belgium, was...

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