Summary: 5. Free Movement Of Services

Read the summary and the most important questions on 5. Free movement of services

• 1 Subject of the freedom of services (fos)

• What does the freedom of services protects?

  • The cross-border provision / receipt of a service, that means
    
  • self-employed and
  • temporary activity
  • for a remuneration
  • which is not covered by one of the other fundamental freedoms (catchall provision art. 57 TFEU)

• What are some variants of crossing the border regarding freedom of services?

  • Provider goes to MS recipient
    
  • Recipient goes to MS of provider
  • Provider and recipient go to another MS
  • Service itself crosses the border

• ECJ case C-33/74, judgement of 3 Dec 1975, van Binsbergen. What are the facts of the case?

  
  

  • During legal proceedings of the Dutch Mr van Binsbergen, his Dutch lawyer moved his place of residence to Belgium.
    
  • He was no longer allowed to be a legal representative in the proceedings at issue because Dutch law required residence in the NL.
    

• ECJ case C-33/74, judgement of 3 Dec 1975, van Binsbergen. What was the decision of the ECJ?

  • prohibition of discrimination on grounds of nationality of / residence in another MS
  • may be justified only by the need to ensure observance of professional rules of conduct connected, in particular, to the administration of justice and to respect for professional ethics

• 3 Rights flowing from the fos

• What are the rights flowing from the fos?

  • Prohibition of (open/disguides) discrimination on grounds of nationality
    
  • Prohibition of restriction - as with other fundamental freedoms
  • non-discriminatory application
  • objective: overriding reason relating to general interest
  • must not go beyond what is necessary to attain objective

• What are some examples for restrictions subject to proportionality test which partly have turned out to be disproportionate:

  • Requirement of establishment
    
  • sales ban (ban on import) for services
  • Service monopoly (in the field of gambling relevant)
  • Quantitative restrictions (quota, needs test)
  • Legal form, liability
  • authorisation, registration or notification requirement
  • Refusal of recognition of education and diplomas

• ECJ case C-137/09,  judgement of 16 Dec 2010, Josemans "Coffeeshop". What were the facts of the case?

  • Impunity for possession of soft drugs for personal use in the NL
    
  • In spite of prohibitions, policy of tolerance with regard to sale in coffeeshops under certain conditions
  • Maastricht City Council prohibited access to coffeeshops for persons not actually living in NL -> measure against drug-tourism
  • Mayor of Maastricht temporarily closed coffeeshop "Easy Going" of Mr josemans after two recorded violations of prohibition

• ECJ case C-137/09,  judgement of 16 Dec 2010, Josemans "Coffeeshop". What was the decision of the ECJ?

  • selling cannabis / selling of food and beverages
    
  • trade in narcotic drugs is not covered by EU Treaties / fos
    
  • delimitation of fundamental freedoms: emphasis
  • indirect/disguised discrimination
  • justification by legitimate interests (eg fight against drug tourism)

• 4 Health services

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• Regarding health services, there are two reasons in case of cross-border where fos is passive. Which two are this?

  A. Ensuring financial balance of social security system
  B. Maintaining a balanced medical and hospital service open to all

• ECJ case C-158/96, judgement of 28 April 1998, Kohll. What were the facts of the case?

  • Luxembourger Mr Kohll: dental treatment of his daughter in Germany -> Kohll applied – via his Luxembourgish dentist – for reimbursement from his LUX health insurance
    
  • refused for lack of urgency of the treatment; treatment could also have been received in Luxembourg