Consolidation and Codification:Re-shaping the Internal Market

2Sigmar Stadlmeier

An introduction

In my opinion, a Community national who goes to another Member State as

a worker or self-employed person under Articles 48, 52 or 59 of the Treaty is

entitled not just to pursue his trade or profession and to enjoy the same

living and working conditions as nationals of the host State; he is in addition

entitled to assume that, wherever he goes to earn his living in the European

Community, he will be treated in accordance with a common code of

fundamental values, in particular those laid down in the European

Convention on Human Rights. In other words, he is entitled to say "civis

europeus sum" and to invoke that status in order to oppose any

violation of his fundamental rights.

AG Sir Francis Jacobs, Opinion in Case 168/91, Konstantinidis, ECR 1993 I-1191,

1213 (No. 46).

3Sigmar Stadlmeier

The Pre-Union phase…

Workers (Art 39)

Self-employed / Established (Art 43)

Providers / Receivers of services (Art 49)

Others???

— Students?

— Pensioners?

— Playboys?

4Sigmar Stadlmeier

Example: Workers Art 39 para 1: Free movement of workers

Art 39 para 2: meaning non-discriminatory treatment

Art 39 para 3: Included rights and limits

— To apply for jobs offered

— Mobility to that end

— Residence and work according to local rules

— Remain after termination of work ( secondary legislation)

— May be restricted on grounds of public policy / security / health

Art 39 para 4: Exclusion of public service

5Sigmar Stadlmeier

Secondary legislation

Reg 1612/68: Details on

— Non-discriminatory treatment with regard to access to jobs

— Non-discriminatory treatment with regard to social benefits, housing, trade unions

— Family and dependent persons: housing, work, education

Reg 68/360: Details on residence and permits

Reg 1251/70: Details on right to stay after termination of work

Dir 64/221: Details on restrictions on grounds of public policy, security or

health

Reg 1408/71: Provisions on Social Security

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Definition / Clarification needed „worker“? Levin, Kempf, Lawrie-Blum

Formalities for immigration/residence? Pieck, Watson & Belmann

Permit? Constitutive or merely declaratory? Royer, Antonissen

Equal treatment in access to jobs French Merchant Seamen, Teachers

Equal treatment with regard to benefits Marsman, Sotgiu, Ugliola, Cristini

Public policy

— Definition: Bouchereau

— Personal misconduct: Rutili, Bouchereau, Bonsignore

Public service Commission/Belgium 1+2

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A coherent system:Mobility rights due to economic activity

notion Art Secondary legislation on

Details Residence family; right

to stay

Restrictions

worker 39 R 1612/68 R 68/360 R 1251/70 D 64/221

established 43 (…..) D 73/148 D 75/34 D 64/221

services 49 (…..) D 73/148 n/a D 64/221

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The Union: Civis Europaeus Sum

Art 17: Union citizenship…

Art 18: … triggers right to move and reside freely within EU

Citizenship, rather than particular economic activity

Subject to limitations and conditions

D 2004/38 replaces nine (!) individual directives

(Almost) coherent mobility regime

Baumbast, Martinez Sala, Grzelczyk, Troiani,

9Sigmar Stadlmeier

The EU mobility regime

notion Basic provision Treaty exception Secondary

legislation

citizen Art 17 + 18 D 2004/38

worker Art 39 Art 39 para 3

established Art 43 Art 46 para 1

services Art 49 Art 55 (Art 46)

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D 2004/38: Overview

Family members

Status: EU citizens vs third country nationals

Residence and formalities

Permanent residence

Exceptions

Procedure and procedural standards

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Regulated professions

Established / self-employed (Art 43)

Providers of services (Art 49)

Prerequisites

Access to activity

Pursuit of activity

Exceptions, Limitations, Conditions

Example: Lawyers / Attorneys

Example: Health Practitioners („Heilpraktiker“)

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Secondary legislation

Sectoral liberalisation and coordination directives

— Sector-wise, e.g. medical professions, Attorneys

Recognition of Diplomas

— University degrees

— Professional qualifications

D 2005/36 on the recognition of professional qualifications

D 2006/123 on services in the internal market

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Directive on professional qualifications I

Definition of „regulated profession“

Establishment / Provision of services

— (mere) service: country-of-destination principle

— Establishment: country-of-origin principle

Incorporates existing sectoral directives

but not those on attorneys!

General system of recognition of qualifications

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Directive on professional qualifications II

Provider mobility: No restrictions on mere provision of services, if

— Provider is established as pursuing a regulated profession in the country of origin

— Or has been pursuing a profession which is not a regulated one in the country of

origin for two years

Country-of-destination principle

— „Provider mobility Recipient‘s Rules“= rules applicable where service is

being provided

— Standard proportionality test applies

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Directive on professional qualifications III

„First Move“ declarations

— Information and/or evidence on qualifications, insurance

— Information for consumers: competent authority, roll or registry etc.

Establishment-based provision of services: Country-of-origin principle

— „Recipient‘s mobility Provider‘s rules“; also applies to mere product

mobility

General recognition of qualifications

— Five steps, from general primary or secondary education to higher university

degrees

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Services Directive I

Applies to

— services

— establishment-based services

— provider mobility, recipient mobility, product mobility

Does not apply to

— „sensible“ services (health, social services, leasing of personnel)

Subsidiary nature

— other directives/regulations prevail (D 2005/36, R 1408/71, …)

Does not affect MS law

— Criminal law, labour law and industrial relations

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Services Directive II: Establishment-based

No authorisation scheme, unless

— Non-discriminatory, objective, transparent

— Justified by public interest (standard proportionality test applies!)

— „black list“ (prohibited requirements)

Exceptions for services in the general economic interest

— Territorial restriction, specific legal form of provider (e.g. type of company)

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Services Directive III: (mere) services

Limited catalogue of grounds in the public interest

— Public policy, security, health

— Environmental protection

Prohibited requirements

Safety / quality standards admissible

Prohibited restrictions on recipients

Services in the general economic interest not covered

19Sigmar Stadlmeier

I may not be able to pull you up,

But I won‘t let you down either…

Thank you for your attention!