eulaw29

EUROPEAN UNION LAW
W.B. Fisch, Winter 2006
Assignment #24

[Ch. 17. RIGHT OF ESTABLISHMENT AND RIGHT TO PROVIDE SERVICES]

[B. Case Law on Freedom to Provide Services].

4. Cross-Border Services Provided by Technological Means

Procureur du Roi v. DeBauve, p. 685 (1980). MS Prohibition against advertising on broadcast media, as applied to cable television provider transmitting programs from other MS.

is broadcasting a "service"?
is origin-neutral limitation on broadcast advertising, applied to domestic enterprises transmitting programs from other MS, inconsistent with ex art. 59?
allowing state-owned system to broadcast advertising from abroad, while forbidding private systems to do so: Bond van Adverteerders, p. 685 (1988)
requiring local-origin content: Commission v. Netherlands (1991)

Is a prohibition against misleading advertising by a receiving state inconsistent with the Directive?

Is a prohibition against advertising directed to children under 12 consistent with the Directive?

Should there be a general principle placing responsibility and power to regulate advertising to the MS from which the transmission emanates?

LeClerc-Siplec, n. 3 p. 691 (1995): is a total ban on advertising consistent with the Directive?

Dir. art. 3(1): "Member States shall remain free to require television broadcasters under their jurisdiction to lay down more detailed or stricter rules in the areas covered by this Directive."
Dir. arts. 19 (authorizing MS to lay down stricter rules on proportional time) and 20 (authorizing MS to lay down stricter rules on timing, for broadcasts limited to local transmission) - do they imply a limitation on the kind of restrictions MS may impose that are stricter than those of the Directive?

C. Case Law on the Right of Establishment for Business Firms

1. Application of Non-Discrimination Rules

COMMISSION V. ITALY, p. 692 (1988): does freedom of establishment include the right to non-discriminatory treatment in respect of access to (personal) housing, including financing?

Council "general programs" for implementation of the right of establishment and freedom to provide services include

right to purchase, exploit and transfer real estate and other property for business purposes
right to obtain loans for this purpose

can unavailability of housing constitute an obstacle to free movement of self-employed persons?

does the "official authority" exception of art. 45 (ex 55) apply to a nationality restriction on the operation of private music and dancing schools? Commission v. Greece, n. 3 p. 693 (1988)
does MS law which limits eligibility of elderly-care facilities for welfare subsidy to non-profit enterprises violate art. 43 (ex 52)? Sodemare, n. 4 p. 693 (1997)

2. Establishment Rights of Corporations and Shareholders

FACTORTAME II, p. 694 (1991): nationality restrictions on ownership of a UK-registered ship (UK national, or UK corp. 75% owned & controlled by UK nationals)

can a MS decide on the basis of nationality of origin, who can become a citizen?
can it also decide on the basis of the nationality of their owners what ships can acquire its nationality? What is the difference between the issues?
How does this case implicate the right of establishment under EC law?

LEWIS V. BT INVESTMENT MANAGERS, p. 697 (US 1980). Prohibition against out-of-state banking companies from providing investment banking services through a local branch or subsidiary.

CENTROS V. ERHVERVS-OG, p. 698 (1999). Where a Danish corporation requires minimum paid-in capitalization, can an other-MS corporation which doesn't satisfy that requirement just establish a branch rather than a subsidiary, and evade the requirement?

does it matter whether the corporation has ever done any business in its home country?
does it matter that the incorporators are themselves Danes intending only to do business in Denmark?
what would constitute abuse of the right of establishment, justifying its denial?

Daily Mail Plc, n. 2 p. 701 (1988): restrictions imposed by taxing authority on a UK company's right to transfer its registered head office to another MS without ceasing to be a UK company

are rules governing dis-establishment and re-establishment in another MS within the scope of art. 43 (ex 52)?
are conditions attached to maintaining UK-company status while moving operations to another MS covered?

are differences in MS requirements for obtaining domestic-company status inconsistent with ex art. 52? (registered office, operating head office)
are differences in MS requirements for maintaining that status inconsistent with ex art. 52?

KAMER VAN KOOPHANDEL V. INSPIRE ART LTD., Supp p 173 (2003) Dutch national as founder and sole managing director of UK LLC whose sole place of business is an art gallery in Amsterdam. Dutch law requires special registration of “formally foreign companies”, those incorporated abroad but lacking real connection with the country of incorporation.

D. Company Law Harmonization

Two principal forms of company, each with separate regulatory statutes, in MS law
Current EC directives