#5761 - Freedom Of Services - GDL EU Law

• 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 restricted provision of services only allowed if they were indistinctly applicable and justified by the general good (proportionality)

  • CJ took wide view of rules which breach A56: not just restrictions based on nationality

• Sager v Dennemeyer (patent license required by Germany law): test to assess whether there is a breach of A46: (1) justified by imperative reasons relating to public interest (2) Indirectly applicable (3)Objectively necessary to ensure compliance with professional rules and protect recipients of services (4) no more than is necessary for objective

  • On the facts Sayer did breach A46: developed principle akin to the rule of reason in FMG

  • Commission v France (Tourist Guides): CJ found national rules to be disproportionate (tourist guide license)

• Justification for restriction provision of services: Schindler (UK allowed to restrict lotteries) = e.g. of when MS has successfully justified a national rule – CJ used test from Sager

Freedom to receive services – additional rights

• Education: Belgium v Humbel: CJ held that courses provided within national education system = NOT A SERVICE – as state provides education as part of general duty towards its citizens – education systems are generally state-funded, not privately funded – distinction btw vocational and university courses where EU citizens have the right to be charged the same fees as nationals of the relevant MS – Gravier v City of Liege – and secondary education which don’t constitute a service

  • Humbel hasn’t been departed from – but court may change positions in light of decisions in other areas

• Other public services

  • Commission v Spain (Museum Entrance Fees): CJ held that Spain was in breach of A18 TFEU and 56 – the fact that museums usually public was not mentioned by the court: all EU citizens meant to get same treatment as nationals: also that they should benefit from ancillary rights (not just access) - here free admission

  • Seems difficult to reconcile with Humbel – one way they can be distinguished is that Spain was four tourists

• Health Care

  • A56 is engaged: Kohll v Union des Caisses de Maladie – A56 applied because...