Eu Economic Law, Freedom of Establishment
Art 49 is the base. In the handout.
It talks about nationals of a MS, if you are a national of a non MS, you can’t rely on this provision. This applies to nationals of a MS or companies that are established in MS. We can’t deal with freedom of movement of companies, as that’s a highly complicated area and beyond our scope.
There are a couple of logical steps in order to deduce whether there is a breach by a member state in your particular case.
1. Is the situation really one where establishment is at issue?
2. Is there a cross-border issue involved, you can only rely on the internal market rules only if you’re moving into another MS, there must be some element of moving or trying to move? This can lead to anomalies for an example for a non national you could rely on EU law, but as an Irish person, you can’t. ECJ cannot go beyond what is stated in the treaty.
3. Have the rights afforded by article 49 being breached?
4. Is there a possible justification or a derogation that a MS could argue?
What is meant by establishment?
The starting point has to be the ECJ case law. It is solely for the ECJ to interpret the concept of establishment. Leading Case:
Gebhard: German lawyer. Qualified at the German Bar and he wanted to move to Milan and practise as a lawyer there. He tried to say he was an avocado in Italy. The Milan Bar Council was not happy, they said that he couldn’t do that unless he passed the Italian Bar exam.
In this case, this falls within the establishment part of the treaty. The distinction between establishment and workers on the other hand is all about whether you are self employed or not. If you are employed, you should be relying on the free movement of workers. You should be relying on freedom of establishment if you are self employed.
How do you distinguish between freedom of establishment and freedom of services? It was all about how long you were going to be in the MS. Permanent (establishment) and Temporary (freedom of services).
It talks about nationals of a MS, if you are a national of a non MS, you can’t rely on this provision. This applies to nationals of a MS or companies that are established in MS. We can’t deal with freedom of movement of companies, as that’s a highly complicated area and beyond our scope.
There are a couple of logical steps in order to deduce whether there is a breach by a member state in your particular case.
1. Is the situation really one where establishment is at issue?
2. Is there a cross-border issue involved, you can only rely on the internal market rules only if you’re moving into another MS, there must be some element of moving or trying to move? This can lead to anomalies for an example for a non national you could rely on EU law, but as an Irish person, you can’t. ECJ cannot go beyond what is stated in the treaty.
3. Have the rights afforded by article 49 being breached?
4. Is there a possible justification or a derogation that a MS could argue?
What is meant by establishment?
The starting point has to be the ECJ case law. It is solely for the ECJ to interpret the concept of establishment. Leading Case:
Gebhard: German lawyer. Qualified at the German Bar and he wanted to move to Milan and practise as a lawyer there. He tried to say he was an avocado in Italy. The Milan Bar Council was not happy, they said that he couldn’t do that unless he passed the Italian Bar exam.
In this case, this falls within the establishment part of the treaty. The distinction between establishment and workers on the other hand is all about whether you are self employed or not. If you are employed, you should be relying on the free movement of workers. You should be relying on freedom of establishment if you are self employed.
How do you distinguish between freedom of establishment and freedom of services? It was all about how long you were going to be in the MS. Permanent (establishment) and Temporary (freedom of services).