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GUIDE to the CASE LAW of the European Court of Justice on Articles 56 Et Seq

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GUIDE to the CASE LAW of the European Court of Justice on Articles 56 Et Seq 1 GUIDE TO THE CASE LAW Of the European Court of Justice on Articles 56 et seq. TFEU FREEDOM TO PROVIDE SERVICES European Commission 2 PREFACE The present guide forms part of a series of guides concerning the case law of the European Court of Justice. To date this series includes publications concerning Article 49 TFEU et seq. (Freedom of Establishment) and Article 56 TFEU et seq. (Freedom to Provide Services). A separate chapter in the guide concerning Article 56 TFEU is dedicated to the case law on Directive 2006/123/EC on services in the internal market (Services Directive). The guides are produced and updated by the European Commission, Internal Market, Industry, Entrepreneurship and SMEs Directorate-General. This guide, which concerns Article 56 TFEU, aims to present the cases in a practical way by gathering together the essential passages of the cases, thus making it possible to find all the relevant parts of the judgement without having to consult the complete text of the case. The structure of the guide, following recent case law, provides an approach to Article 56 intended to help not only academics, but also practitioners directly involved in dealing with infringements. In the 2015 Single Market Strategy1 and the accompanying Staff Working Document2, the Commission states the intention to engage in a more active enforcement policy. In this respect, the guides, by presenting the relevant case law in an organised way, aim to provide clarity on the legal interpretations given by the Court of fundamental notions, on the proportionality analysis and on the correct application of fundamental freedoms of the Treaty. To highlight the essential passages, without ignoring their context, the reasoning of the Court is given without alteration, but the key words are shown in bold and italics. It must be noted that this method of presentation does not commit the Court, only the editors. Within each chapter, cases are cited in reverse chronological order starting with the most recent. The dynamic development of the interpretation by the Court of the concept of "restriction" on the freedom to provide services can thus be followed. For further information concerning the Guides to the Case Law please contact the following Unit: Unit E1 Service policy for Consumers [email protected] 1 http://ec.europa.eu/DocsRoom/documents/14007?locale=en 2 http://ec.europa.eu/DocsRoom/documents/14012 3 CONTENTS TABLE OF EQUIVALENCES OF TREATY ARTICLES ............................ 7 1. DEFINITION OF "SERVICES" .............................................................. 8 1.1 THE SERVICE PROVIDER ............................................................................................. 8 1.1.1 Economic Activities .............................................................................................. 8 1.1.2 Cross-border character ...................................................................................... 15 1.1.3 Temporary character ......................................................................................... 19 1.1.4 Independent nature .......................................................................................... 22 1.1.5 Residual Application .......................................................................................... 22 1.2 THE RECIPIENT OF SERVICES ..................................................................................... 24 1.2.1 General principles .............................................................................................. 24 1.2.2 Patients .............................................................................................................. 27 1.2.3 Tourists .............................................................................................................. 32 1.2.4 Television transmission and television advertising ........................................... 32 1.2.5 Job seekers ........................................................................................................ 33 1.2.6 Taxation ............................................................................................................. 33 1.2.7 National measures for services provided within the territory of this Member State................................................................................................................... 35 2. RESTRICTIONS OF FREEDOM TO PROVIDE SERVICES ........... 37 2.1 GENERAL PRINCIPLES ............................................................................................... 37 2.2 DISCRIMINATORY MEASURES .................................................................................. 41 2.3 NON-DISCRIMINATORY MEASURES .......................................................................... 45 2.4 RESTRICTIONS IMPOSED BY THE STATE OF DESTINATION ......................................... 49 2.4.1 Non-recognition of the rules of the state of origin ........................................... 49 2.4.2 Application of the rules of the state of destination .......................................... 51 2.5 RESTRICTIONS IMPOSED BY THE STATE OF ORIGIN ................................................... 55 2.6 RESTRICTIONS IMPOSED BY NON-PUBLIC BODIES ..................................................... 56 3. EXAMPLES OF RESTRICTIONS ............................................................. 58 3.1 NATIONALITY .......................................................................................................... 58 4 3.2 RESIDENCE/ESTABLISHMENT REQUIREMENT IN THE MEMBER STATE IN WHICH THE SERVICE IS PROVIDED .............................................................................................. 59 3.2.1 Establishment requirement ............................................................................... 59 3.2.2 Requirement of residence or domicile .............................................................. 66 3.3 PROFESSIONAL QUALIFICATIONS REQUIREMENTS .................................................... 68 3.3.1 Diplomas ............................................................................................................ 68 3.3.2 Other professional qualifications ...................................................................... 70 3.3.3 Registration with professional bodies ............................................................... 71 3.3.4 General system of mutual recognition of diplomas .......................................... 73 3.3.5 Obligation to provide the original diploma ....................................................... 73 3.4 LICENCES, APPROVALS, AUTHORISATIONS (AND RELATED FEES) ............................... 74 3.5 LEGAL FORM OF THE PROVIDER AND OTHER OBLIGATIONS ...................................... 86 3.6 PURSUIT OF AN ECONOMIC ACTIVITY....................................................................... 89 3.6.1 Restrictions on the conditions of this pursuit ................................................... 89 3.6.2 Useful facilities for the pursuit of this activity .................................................. 90 3.6.3 Involvement of competing operators ............................................................... 92 3.6.4 Special card for the firm's workers (members of the staff) .............................. 92 3.6.5 Professional Fees ............................................................................................... 92 3.6.6 Canvassing ......................................................................................................... 93 3.7 SOCIAL SECURITY ..................................................................................................... 93 3.7.1 Social security contributions ............................................................................. 93 3.7.2 Other social security considerations ................................................................. 96 3.7.3 Collective agreements and actions ................................................................... 97 3.8 EXCLUSIVE RIGHTS AND MONOPOLIES ..................................................................... 99 3.9 MANDATORY LEGAL FORM OF EMPLOYMENT RELATIONSHIP .................................. 101 3.10 GUARANTEES ......................................................................................................... 102 3.11 VEHICLE REGISTRATION .......................................................................................... 103 3.12 RESTRICTIONS ON TRADE IN SERVICES .................................................................... 105 4. JUSTIFICATION OF RESTRICTIONS.............................................. 107 4.1 JUSTIFICATION OF RESTRICTIONS ON GENERAL INTEREST GROUNDS ....................... 107 4.1.1 Admissible Justifications .................................................................................. 110 4.1.2 Examples of admissible justification ............................................................... 114 4.1.3 Examples of non-admissible justifications ...................................................... 150 5 4.2 NON CONSIDERATION OF REQUIREMENTS IMPOSED BY THE PROVIDER’S STATE OF ESTABLISHMENT ..................................................................................................... 156 4.3 CONDITIONS OF JUSTIFIED RESTRICTIONS ............................................................... 159 4.3.1 Appropriateness of measure ........................................................................... 159 4.3.2 Necessity of measure .....................................................................................
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