#5762 - Rights Of Establishment - GDL EU Law

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

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 non-discriminatory 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 non-residents

• 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)

• Slow process of sectoral harmonisation: wish to protect public from under-qualified professionals - medical fields, architecture and lawyers (1977) – but slow progress elsewhere so turn to mutual recognition

• Various mutual recognition Directives – now all of them replaced by Directive 2005/36 – Estab/Services

Directive 2005/36

• Same recognition for migrant EU citizen and national EU citizen

• If no professional qualification is required in home state – then must show 2 years full-time experience

• Directive = fall back for professions that are not covered by specific rules – ensures mutual recognition – doesn’t absorb other directives (e.g. legal – Directives 77/249 and 98/5)

• Backed up by Decision 2241/2004 on the Transparency of Qualifications and Competences (Europass) – European Qualification Framework – intended as a neutral reference point for comparing qualifications

• In all situations not covered by the legislation – case law of Haylens and Vlassopoulou will still apply

• A10-15 of directive: 5 levels of professional qualification: 5 levels of professional qualification on an ascending scale and allows for compensatory measures where there is no equivalence

Compensatory measures

• Allows HS to make recognition subject to completion of aptitude test or adaptation period of max 3 years if:

  • The training is one year shorter than in HS

  • The training covers substantially different matters than required by HS

  • Profession in HS comprises one or more regulated professional activities – specific training

• Must offer migrant choice of adaption period or test

Common platforms: Defined in A15 s set of criteria which make It possible to compensate for differences btw training requirements in at least 2/3 of the MS including all states which regulate the progression – once imposed MS will be unable to impose compensatory measures on applicants who meet platform conditions

Qualifications obtained outside EU: covered by Directive 2005/36 – holder must have at least 3 years’ experience in MS – however treaty nor legislation recognises non-EU nationals apart from Swiss or EEA

• Recital 10 of Directive 2005/36: doesn’t place an obstacle on recognition but doesn’t guarantee other MS will agree with the first – Tawil-Albertini: Lebanon qualification – CJ held that just because one MS accepted equivalence didn’t bind another – but following Hoscman – had he worked in Belgium this period would have to be considered

• Qualification will be recognised even if part of training done outside EU as long as MS awarding qualification recognises it (Tennaf-Durez)

Directive 2006/123 – ‘The Services Directive’

• Also confers right to Freedom of Establishment – ‘Bolkestein’ Directive - mainly administrative

The establishment of lawyers

The Lawyers Services Directive (Directive 77/249)

• Doesn’t deal with establishment/qualifications – allows layers to follow clients around EU – conjunction rule existis – but proportionality emphasised (C v Germany (Re lawyers services) – German rules seen as too restrictive

• Cannot be abused – e.g. trying to use dual nationality to override decision not to admit to the bar (Gullung)

The Lawyers Establishment Directive (98/5)

• Makes it easier to practice in other MS: some states reserve probate and conveyancing, representation in criminal proceedings

• Still have to register with local bar

• Right to representation within host regulatory body, subject to rules of HS, fast track to re-qualification in HS

• Allowed to practice local law – if does this for 2 years he may acquire local title without test

• Wilson v Ordre des Avocats: CJ – prior test of linguistic knowledge was precluded – effective/regular activity for at least 3 years was all that he needed to prove

• Implemented in the UK with the European Community (Lawyers Practise) Regulations 2000

The Recognition of Professional Qualifications (2005/36) (replacing 89/49 – Mutual Recognition of Diplomas)

• Aptitude test to re-qualify in HS – written and/or oral examination in the host state’s law so far as there is a difference

The...