R.Greaves Cross-border provision of services Art 49 EC Treaty within the context of the provisions...

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R.Greaves Cross-border provision of services Art 49 EC Treaty within the context of the provisions on Establishment

Transcript of R.Greaves Cross-border provision of services Art 49 EC Treaty within the context of the provisions...

Page 1: R.Greaves Cross-border provision of services Art 49 EC Treaty within the context of the provisions on Establishment.

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Cross-border provision of services

Art 49 EC Treaty within the context of the provisions on Establishment

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Article 49 1st paragraph

Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.

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Article 49 2nd paragraph

The Council may, acting by a qualified majority on a proposal from the Commission, extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Community.

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Direct effect of Article 49

Van Binsbergen 33/74

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Meaning of services-Article 50

Services shall be considered to be "services" within the meaning of this Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.

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Relevant case law

Rush Portuguesa C-113/98

Schindler C-275/92

Alpine Investments C-384/93

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Examples

"Services" shall in particular include:(a)  activities of an industrial character;(b)  activities of a commercial

character;(c)  activities of craftsmen;(d)  activities of the professions.

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Matters decided by ECJ

Remuneration need not come from the recipientService provided must have a profit motiveMedical servicesEducation servicesFinancial services

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Medical services

Luisi & Carbonne 286/82 & 26/83SPUC v Grogan C-159/90Geraets-Smits & Peerbooms C-157/99Vanbrackel v ANMC C-368/98IKA v Vasileios Ioannides C-326/00

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Article 50 3rd paragraph

Without prejudice to the provisions of the chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the State where the service is provided, under the same conditions as are imposed by that State on its own nationals.

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Exclusions & reservations – Article 51

Transport services - excluded

Banking services – free movement of capital

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Article 52 – legislative competence

  In order to achieve the liberalisation of a specific service, the Council shall, on a proposal from the Commission and after consulting the Economic and Social Committee and the European Parliament, issue directives acting by a qualified majority. NB Directive 2006/13 “The Services Directive”

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Article 54 MS obligation

As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49.

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Article 55

The provisions of Articles 45 to 48 shall apply to the matters covered by this chapter.

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Exceptions to the freedoms

Art 39(3) + Art 45 +Art 552nd legislation No limitations for economic reasons Only invoked on basis of personal

conduct

Public service proviso – Art 39(4)


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