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Rights Of Establishment Notes

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Rights Of Establishment Revision

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Revision: EU

[RIGHTS OF ESTABLISHMENT - ARTICLE 49 TFEU]
A49 TFEU: abolishes restrictions on freedom of primary and secondary establishment - second paragraph provides for the right to pursue self-employed activities on an equal footing to HS nationals

Articles 50, 53 and 54 support A40 (54 - Freedom of Establishment to companies)

'Establishment' broadly covers professional/trade persons/self-employed - includes companies

Overlap btw the 4 freedoms - e.g. Commission v Italy (Re Freedom of Establishment) - Italian rules breached Freedom of Establishment, Freedom of Services and Free Movement of workers/persons

In Gebhard - CJ stated that its broad interpretative approach will be the same for all freedoms

Differences btw the four freedoms:

Gebhard: Right of establishment - right to install oneself in another MS - allows you to participate on a 'stable and continuous basis in the economic life of an MS other than state of origin' - Milano - 'with no foreseeable limit to its duration'

Freedom of services - more transient: difference btw the two not just an issue of duration - also regularity, periodicity, continuity : evidence of permanency for example buying licences/premises - Factortame (no 1)

Distinction btw establishmet/services in Directive 2005/36L but often still considered together Article 49 TFEU and Direct Effect

Initial problem giving DE to FE: Because 49 was dependent on A50 it couldn't fulfil VGL criteria of unconditionality - but due to the slow process of rolling programme under A50 - gave DE to 49

Reyners v Belgium - 'A49 imposes an obligation to attain a precise result, the fulfilment of which had to be made easier by, but not dependent on, the implementation of a programme of progressive measures'

Uncertainty as to horizontal application - Wouters JW and The International Transport Workers' Fed

Application of A49 TFEU to qualifications where there is no unifying EU legislation EU qualifications: Where there is no EU rules - MS can regulate access - no direct/indirect discrimination

Directly discriminatory - will only be saved by express treaty derogations under A51/52 - Reyners

Indirectly discriminatory: Ordre des Avocats v Klopp: rule applied to all Bar members vs. maintaining offices in other MS - indirectly discriminatory to German lawyers' applications for membership

The Mutual recognition of the equivalence of qualifications - to balance anti-discrimination with need for adequate qualifications (Thieffry): Satisfying French requirements (both academic +
professional) for equivalent qualification should have allowed entry to French bar - CJ expanded focus from non-discrimination to one of mutual recognition of the equivalence of qualifications
-

Any decision must be reached on objective basis - person concerned should be fully informed of reasons

UNECTEF v Heylens: Belgian football trainer's qualification refused by French ministry of Sport

1

Revision: EU

[RIGHTS OF ESTABLISHMENT - ARTICLE 49 TFEU]
Where the CJ determined there is an obstacle to A49: must examine arguments of objective justification - balance btw equal treatment and legitimate MS requirements :

Vlassopoulou: If education, training, knowledge, acquired skills required for national qualification are equivalent to those in the HS then qualification should be recognised - Where MS has already allowed someone to practice then it is too late to quibble about qualification: practical experience must be taken into account - might make up for original diff in training

Fernandez de Bobadilla: practical experience: partial equivalence entitles MS to require full qualifications if no harmonising legislation - but this can be made up for by acquired skills:

So MS allowed to require missing qualification/knowledge but must take into account any knowledge gained by a course of study/practical experience

Hugo Fernando Hoscman: extended the Bobadilla approach even where there is a harmonising directive
- can still rely on A49 and case law and so ensure that acquisition of skills is taken into account Non-EU Qualifications - no right to acceptance in MS

If initial qualification earned outside EU but experience in EU - only the latter is credited

Halm: Dentistry qualification earned in Turkey - but period of training made up for lack of min requirement

Where an EU national obtains non-EU qualification which is recognised in some MS - doesn't mean it should be recognised in all (Tawil Albertini)

How much impediment is needed to breach A49?: very little needs to be shown to establish breach

Removal of obstacles approach - Gebhard: CJ said that MS rules for self-employed must be subject to standards: must be justified by an imperative requirement which is applied in a nondiscriminatory and proportionate manner

Caixa Bank France: tests of an obstacle widened - anything which could 'prohibit, impede or render less attractive' the pursuit of an occupation in >1 MS would be enough to amount to a restriction

Can A49 can be applied within the home state:

Asscher: Dutch national resided in Belgium: unjustified differentiated taxes for residents and nonresidents

Knoors: Dutch national obtained qualification in Belgium and returned home to practice trade: so long as there is a Directive in the area - then it must be allowed - unlike in Ministere Public v Auer
- no Directive

But A49 cannot apply to purely internal situations - EU element in Knoors

Community Legislation

Professional standards: must follow any Directive and ignore their own (Broekmuellen v Huisarts)

If no Directive: MS must follow case law and take into account qualifications/experience (Vlassopoulou) 2

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