#2521 - Persons Revision - European Law

EU LAW: PERSONS 1. ISSUE OF SCOPE: Does EU Law apply? 2. ISSUE OF SUBSTANCE: Is there an obstacle to cross border provisions of the service?: 3. ISSUE OF JUSTIFICATION: Is that obstacle justified by some legitimate goal + proportionate? SCOPE To benefit from Art 45 (Worker), 49 (Est of Natural Persons ), 56 (services), must be... 1. A national of MS (Art 20): * * Kaur 2001: Allocation of nationality is domain of MS ICI : Test for companies is looking at their corporate seat. 2. Engaged in Economic Activity * Not purely sporting interests (Mecca-Medina para 41) * As a worker? (Art 45) Hoeksta case stresses three features * * * Formal Element # Laurie Blum: "certain time a person performs services for under direction of another in return for remuneration." Thus, trainee teacher = worker # Steynman: 'Being paid in return services is work' Substantive Element: # Levin: Work must be "genuine and effective" not "marginal/ancillary". In this case being a part time chamber maid was work. # Kempf: 12 hours piano lessons a week was work # Betrray: working as part of drug rehab program not real work, "not part of labor market". Retention of Status: # Art 7(3) CRD: status of worker can be maintained if ceased to be worker if * a) illness * b) fired after 1 year and registered as job seeker * c) where individual fired in first 12 months or completed fixed term contract. * d) individual embarks on vocational training. * As an Employer # Clean-Car Autoservice: "there is a corollary right for employers" # Innovative Technology: "Private recruitment agency are workers" * As a Job Seeker # Antonissen: "Job seekers get rights so long as genuine chance of employment" (now * * enshrined in 14(4)(b) CRD As Self-Employed # Must be * (a) engaged in econ activity: * Jany: Prostitute without pimp is self employed * Art 57: 'services must be accompanied by remuneration' * (b) Autonomy over their work (distinguishes Art 49 from Art 45) * Jany: "outside relationship of subjugation" * (c) Stable and continuos basis * The right of establishment (Art 49 TFEU) implies a permanent link with the host MS whilst the freedom to provide services (Art 56 TFEU) envisages a much more temporary relationship. * Gebhard: "...on a stable and continuous basis, in the econ life of a MS other than his state of origin to profit therefrom, so contributing to social and economic penetration within the community in the sphere of activity as self employed persons." * Fitzwilliam: "List cannot be exhaustive, and choice of criteria must be adapted to each specific case." # Art 7(3) CRD: Once gained status, will maintain status for reasonable period of time. As Service Provider/recipient (Art 57) 'Services shall be considered to be 'services' within the meaning of this Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons. Services shall in particular include: (a) activities of an industrial character; (b) activities of a commercial character; (c) activities of craftsmen; activities of the (d) professions.' * * * Service provider # Carpenter: Husband travels around EU to provide services, bestows right on wife to not to be deported # SPUC v Grogan: (Claimed because abortion immoral, not a service) Held: Immorality is irrelevant, is it legal? # Service recipient # *Luisi & Carbone: (wanted to travel with lots of money to germany to receive medical services) The right to provide services is express, the necessary corollary is that the right to travel to receive services is also there. services has a # Salah Oulane: (guy arrested in railway station, no documents, but turns out he is french). Question: since simply by being in another MS you are receiving some form of service, is the right engaged? Held: No, general presumption, but the threshold is very low. # Joseman 2010: (Only dutch nationals allowed in coffee-shops in Holland) Held: This is not a restriction of right to receive services because only legal for dutch. Remuneration for intangible Activity # Humbel: It is a question of the economic link, money must be paid from recipient to provider (Note how Grogan there was no paying of money from clinic to leafers) # Bond van Adverteerders v Netherlands : (Advertising --> Cable Companies --> Broadcasters): Held, doesn't matter that there is one step removed, this is still remunerated service. "Art 57 does not require service to be paid for by those for whom it is performed (para 16)."