EUROPEAN UNION LAW
W.B. Fisch, Winter
2006
Assignment #23
Ch.
17. RIGHT OF ESTABLISHMENT AND RIGHT TO PROVIDE SERVICES
A. Treaty Provisions and Legislative Programs
1.
The Nature of the Treaty Rights
- The scope of the right of
establishment (art. 43 (ex 52)):
- Establishment of
nationals
- Taking up and
pursuing activities as self-employed persons
- Setting up and
managing undertakings, in particular companies or firms
- Setting up of
agencies, branches or subsidiaries
- National treatment is
the basic right, para. 2
- Exceptions
- Activities connected
with the exercise of public authority
- Restrictions on
grounds of public policy, public security, or public health
- The scope of the right to
provide services (arts. 49 and 50 (ex 59 and 60))
- Provider established
in an MS other than that of the intended recipient
- "Services"
-- how are they defined?
- what
must the host MS allow the foreign provider to do, short of
"establishment"?
2. Legislation to Implement Articles 43 and 49
- How does EU
"harmonization" differ from "uniform laws" in the U.S.?
3. The Commercial Agents
Directive
- civil
law MS vs. common law MS on special statutory protections for commercial
agents - why the differences?
- EU harmonization directive
86/653 favors the broadest protections
- are
they necessary for a level competitive playing field in the Community?
- INGMAR GB V. EATON LEONARD
TECHNOLOGIES, p. 659 (2000)
- BELLONE V. YOKOHAMA, p. 661
(1998)
B. Case Law on Freedom to
Provide Service
1. The Right to Provide
Cross-Border Services
- VAN BINSBERGEN V. BESTUUR VAN
DE BEDRIJFSVERENIGING, p. 662 (1974)
- do
arts. 59 and 60, at the end of the transitional period, have direct
effect?
- is
a residence requirement for lawyers incompatible with art. 59?
- cf. Supreme
Court of New Hampshire v. Piper, p.
664 (U.S. 1985)- Art. IV P&I!
- CRIMINAL PROCEEDINGS AGAINST
WEBB, p. 667 (1981).
- Is a license
requirement for supplying temps justified in terms of public policy?
- what
if the provider's home MS the same requirements with which the provider
has complied?
- PROCEEDINGS AGAINST CORSTEN,
p. 668 (2000). Can a MS require enrollment
in a register for skilled trades, as a condition of the right to provide
services of that character with the state, even when the provider is not
established in the state and works there only on an occasional or one-time
basis?
- COMMISSION V. FRANCE,
p. 670 (1991). Is a license requirement for tour guides justified by
a need for supervision in the public interest? By any other public
interest?
- CARPENTER V. SECRETARY OF
STATE FOR THE HOME DEPARTMENT, Supp. p. 167 (2002): does the right to
provide cross-border services include the right to have one’s
otherwise deportable spouse remain resident in the MS of which he is
resident? Is it guaranteed by the
European Convention on Human Rights?
2. Appropriate
Public Interest Limits on Cross-Border Services
ˇ
COMMISSION V. GERMANY, p. 672 (1986). Is a
license and permanent establishment requirement for insurance providers
justified by a need for supervision in the public interest? By any other public
interest?
ˇ
HER MAJESTY'S CUSTOMS AND EXCISE V. SCHINDLER,
p. 676 (1994). UK
limits lotteries to small charitable activities
o does sale of lottery tickets fall under services within art.
49 (ex 59)?
o are lotteries so harmful that they can be prohibited
altogether?
o is the UK
restriction justified in terms of public policy?
3. Right to
Receive Services in Other States
ˇ
COWAN V. TRÉSOR PUBLIC, p. 680 (1989)
o
is the right to go to
another MS to receive services implicit in the right to provide services
in another MS?
o
is a tourist a receiver
of services?
o
is a tourist injured by
a crime entitled to national treatment in respect of state compensation for
crime victims?
§
the status of tourist is protected by Community
law
§
art. 12 (ex 6, orig. 7)
forbids discrimination based on nationality, w/n scope of Treaty
ˇ
MULLER-FAURE V. ONDERLINGE WAARBORG-MAATSCHAPPIJ
OZ, Supp p 168 (2003)
o
Can a prior authorization requirement for
reimbursement be justified in terms of public health, based on the need of the
domestic healthcare professions for a steady and sufficient patient load? If so, under what conditions?
ˇ
S.P.U.C. IRELAND V. GROGAN, p. 682 (1991)
o
is the provision of an
abortion a service?
o
does the distribution
by third persons, gratis, of information concerning the availability of
abortions, constitute a service within the meaning of ex art. 59?
o
does prohibition of the
latter constitution a restriction on the former?
o
if Ireland banned advertising by the UK
abortion provider, would that violate ex art. 59? Cf. art. 46 (ex
art. 56), "public policy" exception
o
if Ireland sought to forbid an Irish national to go
to the UK
for an abortion, would that violate ex art. 59?
ˇ