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

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Presentation transcript:

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

R.Greaves 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.

R.Greaves 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.

R.Greaves Direct effect of Article 49 Van Binsbergen 33/74

R.Greaves 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.

R.Greaves Relevant case law Rush Portuguesa C-113/98 Schindler C-275/92 Alpine Investments C-384/93

R.Greaves 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.

R.Greaves Matters decided by ECJ Remuneration need not come from the recipient Service provided must have a profit motive Medical services Education services Financial services

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

R.Greaves 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.

R.Greaves Exclusions & reservations – Article 51 Transport services - excluded Banking services – free movement of capital

R.Greaves 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”

R.Greaves 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.

R.Greaves Article 55 The provisions of Articles 45 to 48 shall apply to the matters covered by this chapter.

R.Greaves Exceptions to the freedoms Art 39(3) + Art 45 +Art 55 2nd legislation No limitations for economic reasons Only invoked on basis of personal conduct Public service proviso – Art 39(4)