• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month
Page
  1. 1
    1
  2. 2
    2
  3. 3
    3
  4. 4
    4
  5. 5
    5
  6. 6
    6
  7. 7
    7
  8. 8
    8
  9. 9
    9
  10. 10
    10
  11. 11
    11

EU Freedom of Establishment. In this essay I will discuss the definition of establishment and consider the relevant case-law which has shaped this fundamental freedom.

Extracts from this document...

Introduction

David McCabe 11090596 Freedom of Establishment Essay 1 Introduction: 1.1 The freedom of establishment is one of the four fundamental freedoms of the European Union. It is governed by Articles 45-55 of the TFEU. In this essay I will discuss the definition of establishment and consider the relevant case-law which has shaped this fundamental freedom. 2 Definition of establishment: 2.1 Article 49 TFEU states: 'restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State'. It continues; 'Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.' 2.2 In Factortame II [1991] the ECJ defined establishment as "the actual pursuit of an economic activity through a fixed establishment in another MS for an indefinite period". It thus prohibits the restriction of the free movement of establishment of nationals of the MS. A national of another MS may not be restricted from setting up agencies, branches or subsidiaries 2.3 Self-employed is not defined in the Treaty, but the criteria was laid down in the case of Jany,1 The question before the courts was whether a woman working as window prostitutes in Amsterdam could claim the benefit of freedom of establishment. The ECJ held that there are four requirements for freedom of establishment: * The provision of a service * Outside any relationship of subordination concerning the choice of activity, working conditions and conditions of remuneration * Under the persons own responsibility * In return for remuneration ...read more.

Middle

In particular, these requirements must be objectively necessary in order to ensure compliance with professional rules and must not exceed what is necessary to attain those objectives' 5.6 The ECJ confirmed the applicability of those criteria in Gebhard10. Thus, for a national rule which restricts the freedom f establishment or the freedom to provide services to be compatible, a four part must be satisfied: * the rule must be non-discriminatory * it must be justified by imperative requirements in the general interest * it must be suitable for the attainment of the objective it pursues * it must not go beyond what is necessary in order to attain its objective (the proportionality doctrine) 5.7 Indirect discrimination may be objectively justified or saved by an express derogation for example a national law requiring professionals to hold a licence before they can practice and/or be registered with a professional body, usually after having passed the relevant examinations and holding certain qualifications. Individual has dual burden of satisfying home and then host MS of their suitability to practise, while nationals have only to satisfy only one authority-i.e. that of the home MS. Often the ECJ will allow such indirect discrimination if the requirements can be justified 5.8 In Klopp11 the court ruled that a ban on secondary establishment, used by the Paris Bar was contrary to Article 43 EC. This was a forward-looking judgement in that the Court held that while it was legitimate for the Paris Bar to want to exercise control over lawyers practising locally, a ban on secondary establishment, forcing lawyers to give up their primary establishment, was out of proportion given that lawyers were able to maintain contact with their clients and the French courts through modern methods of transport and tele-communications.12 Where there is indirect discrimination the State may be able to justify rules which are objective13. Other cases have involved more overt forms of discrimination based upon nationality which is contrary to Community law and cannot be justified under one of ...read more.

Conclusion

took 17 years to agree-the lawyers' services Directive was limited in that it only applied to services and not establishment (Directive 77/249 Lawyers' services) 6.10 Single market programme heralded a new approach in the form of horizontal harmonisation based on the principle of mutual recognition derived from ECJ's rulings in Cassis and Vlassopoulou. Instead of attempting to harmonise by profession, known as the sectoral or 'vertical' approach, the Commission adopted a general or 'horizontal' approach, based not on harmonisation but on mutual recognition of qualifications. This applied not just applied to individual professions but to all aeras of activity for which a higher education diploma was required. Directive 89/4823, based on these principles, was approved in December 1988. The Council then agreed a second directive, this time dealing with secondary education24. This directive was also based on the principle of mutual recognition. Both directives have been amended a number of times since they were first enacted, but the basic principles remain. 6.11 In 1999 with Directive 99/42, the Council introduced a directive which covered recognition of qualifications in various commercial and industrial sectors (agriculture, carpentry, hotels and restaurants and textiles). Up until 2007 there were three categories * Professions where specific harmonising directives existed-GPs, dentist, nurse, vets, midwife, pharmacist and architect * All other professions-Accountants, lawyers and bankers where one of the Mutual Recognition Directives applied * Commercial and industrial sectors However Directive 2005/36/EC repealed and replaced earlier directives and it also included the case law of the Court of Justice. This directive was subsequently amended by Directive 2006/100/EC following the accession of Romania and Bulgaria to the EU. The provisons of these directives had to be transposed by MS by the 20th October 2007. They Consolidated earlier professions (regulated professions) (consolidates the three categories above). It not only replaced the mutual recognition directives but also put in one text the following (thus repealed their specific directives): professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree European Union Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree European Union Law essays

  1. Marked by a teacher

    What is the meaning of the term 'measure equivalent to a quantitative restriction' for ...

    4 star(s)

    after cinema release, decided that although the case may fall under the area of Article 28, there was a defence of objective justification with regard to community law. In this case that was a defence of protection or enhancement of the arts.

  2. Marked by a teacher

    Council Directive 2004/707 on transporting retired people (fictitious), adopted on 1 November 2000, requires ...

    3 star(s)

    They are entitled to be treated no differently to the nationals of that state. The EU use regulations and directives to communicate any changes or supplements to its articles. Article 249 highlights the direct applicability of EU law; a regulation 'shall be binding in its entirety and directly applicable in

  1. The Luxembourg Compromise is, in fact, an agreement in case very important national interests ...

    At present, in the Council, non-ministers are allowed to vote but only under the 'cover' of another minister. The non-minister will be acting on instructions of their Government. However, if a very important national interest is at stake, it is likely that the relevant minister will attend the meeting.

  2. Free movement of capital and payments. Although the 1957 Treaty of Rome included ...

    The court thus applied a test known as the 'non-hindrance' test. The court concluded in this case that a national measure is subject of Article 56(1) EC- 'even though the rules in issue may not give rise to unequal treatment'-if it is capable of impeding capital movements and dissuading investors

  1. Critically discuss the proposition that the Treaty of Lisbon has completed the evolution of ...

    3 EU accession to the ECHR 3.1 The Lisbon treaty has introduced Article 6(2) TEU, which provides that the Union "shall accede" to the ECHR , which requires EU action rather than merely offering an option -,and that "such accession shall not affect the Union's competences as defined in the Treaties."

  2. With reference to the works of two or more comparative lawyers and other sources, ...

    York Convention" (Convention on the Recognition and Enforcement of Foreign Arbitral Awards) from 1958, initiated by the United Nations and the UNCITRAL (United Nations Commission in International Trade Law, founded by the General Assembly of the UN in 1996 to promote the progressive harmonization and unification of the law of international trade)

  1. Company Law and Corporate Governance

    Europe were as anxious as the United States to respond to the scandal as the Enron failings of corporate governance had affected their European markets similarly, and wanted to respond positively as their American counterparts had done. In September 2001, the Commission requested for a review in the modernisation of

  2. EU Law - age discrimination and market access case studies.

    Furthermore, C-188/89 Foster v British Gas presents a test as to whether the party can be classed as a 'public body', which is defined as one which has been delegated power by a state to carry out a public service.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work