Summary: 5. Free Movement Of Services

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  • 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
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