Ch. 15. 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)
• 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?