Business Mobility: Establishment

[Flash Card 1 of 2]

Treaty on the Functioning of the European Union (TFEU)

• Article 26 TFEU: free movement of goods, services and capital essential for business mobility / creating internal market

Article 49 TFEU

• prohibits: restrictions on freedom of establishment / nationals of a Member State / in another Member State
• freedom of establishment: businesses / self employed (permanent)
• direct effect: vertical (Reyners v Belgium) / horizontal (Finnish Seamen's Union v Viking Line)
• business organisation: agency / branch / subsidiary / self-employed / firms / partnership

Article 54 TFEU

• company set up in accordance with laws of its own Member State / treated as natural persons who are nationals of Member States

Directive 2004/38

Article 2: family members

• Article 2(1): union citizen / nationality Member State / Article 20 TFEU
• Article 2(2): (a) spouse / (b) registered partnership / (c) direct descendants u21 or dependants / (d) dependant ascending line

Article 6: initial right to reside

• Article 6:3 months right of residence / EU citizens & family members

bits of law

Business Mobility: Establishment

[Flash Card 2 of 2]

Directive 2004/38

Article 7: right residence more than 3 months

• Article 7(1)(a): worker or self employed
• Article 7(1)(b): sufficient resources not to be burden / & comprehensive sickness cover
• Article 7(1)(d): family members accompanying EU citizen
• Article 7(2): non EU national family members
• Article 7(3): workers & self-employed / retained after retirement or incapacity

Application:

• direct discrimination (Reyners v Belgium )/ indirect discrimination (Commission v Italy) / non-discriminatory restrictive effect (Sodemare)

Derogations:

• Article 51 TFEU: not apply / activities connected exercise of official authority
• Article 52 TFEU: public policy / public security / public health
• Directive 2004/38 Article 27(1): general derogations / Article 52 TFEU / not economic

Objective justification:

• applies: discrimination / non-discriminatory restrictions
• non-discriminatory manner / imperative reasons in general interest / not beyond what is reasonably necessary to attain objective (Gebhard)
• unjustifiably restricted / equivalent professional qualification not recognised (Thieffry)

bits of law