EU Substantive Law

Freedom of Establishment
By DR. V. Kosta
Third Lecture, 10-02-2015
Internal Market

Article 49 TFEU
Definiton:
a. Paragraph 1:
b. Pragraph 2:
Treaty Provisions (Substantive)
Art. 49 TFEU : Freedom of Establishment
Art. 52 (1) TFEU:
Art. 54 TFEU:
Art. 58 TFEU:

Treaty provisions (Legal Basis)

Art. 50 TFEU:
Art. 51 (2) TFEU:
Art. 52 (2) TFEU:
Art. 53 TFEU:

Secondary Legislation
Replaced / codified
Directive 2004/38/EC
Diplomas and professional rules: Directive 2005/36/EC
Other specific measures, e.g. :
Directive 98/5/EC (Lawyers under home title)

Scope Establishment
Permanent economic activity:
To participate, on a stable and continuous basis, in the economic life of
another MS (Gebhard) Having a premises (is that mean established)
Outside a relationship of subordination (Jany) Several sex worker without
pimp

EU Substantive Law
Freedom of Establishment
By DR. V. Kosta
Third Lecture, 10-02-2015
Establishment
For natural persons : self-employment

For legal person:

Art. 49 TFEU covers:

a). Primary establishment

Natural persons (Reynars)

b). Secondary establishment

Setting up agencies, branches or subsidiaries

Natural Person (Klopp)

Companies (Centros)

Note:
1). Actual establishment in host state
2). Pursuit of genuine economic activity

Art. 49 TFEU does not cover:

1) Art. 51(1) TFEU:
2) Purely internal situations (in the territory of another MS)
However: any cross border element may bring situation under freedom of
establishment (Knoors)
Art. 52 : derogations
Public policy, public security and a public health

Jany

Konstantinidis removing
Obstacles/restriction
Name transcription in another language

EU Substantive Law
Freedom of Establishment
By DR. V. Kosta
Third Lecture, 10-02-2015
Restrictions- justifications
Gebhard:
National measures liable to hinder or make less attractive the exercise of
fundamental freedoms guaranteed by the treaties have to fulfill four conditions
in order not to breach Art. 49 TFEU:
1)
2)
3)
4)

Be applied
D
D
Not

Vlassopulou
Note: Case predates adoption of secondary legislation on mutual recognition
diplomas
Mrs. Vlassopoulou, Greek lawyer with a doctorate from a German university not
admitted as a Rechtsanwaltin
Organisation of the profession

Diplomas
From vertical to horizontal approach:
Directive 2005/36/EC About the professional job such as: lawyers, nurses.

Viking Line cases

Free movement of companies

-

Starting point:

Article 54 TFEU
-

Companies or firms formed in accordance with the law of a Member State

H

Legal persons
A Story of tension:

Daily mail

EU Substantive Law
Freedom of Establishment
By DR. V. Kosta
Third Lecture, 10-02-2015
Centros

Uberseering

Cartesio

Vale
Equivalent and effectiveness is important