User:Kaihsu/IMlawA2

European internal market.

Section A: The scope of the four freedoms.

Chapter 2: Material scope of the four freedoms – introduction.

Notes by Kaihsu Tai, 2011-11-16.

Overview, principles, structure
The substantive Treaty provisions are mostly in Part Three, Titles I to IV TFEU. Article 26 TFEU describes the internal market as “an area without internal frontiers”. The structure of each freedom starts with a general prohibition, followed by exceptions.

However, some principles are in Part Two: Discrimiation on grounds of nationality is prohibited: Article 18 TFEU. This applies to victim compensation and to university entrance: Case 186/97 Cowan, Case C-147/03 Austrian university entrance rules. Article 19 TFEU deals with discrimination on some other grounds.

Free movement of goods
Goods are “products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions”: Case 7/68 Italian art treasures.

Article 30 (Part Three, Title II) TFEU prohibits customs duties between Member States. Articles 34 to 36 TFEU prohibits quantitative restrictions between Member States, with exceptions in Article 36. Article 110 TFEU prohibits discriminatory and protectionist taxes.

Free movement of persons, plus citizenship; workers
Part Three, Title IV TFEU deals with the movement of persons. In its first three chapters in turn: workers (Article 45 seq.), right of establishment (for self-employed persons), and freedom for service users and providers. These have spilled over to form citizenship rights: Articles 20 to 25 TFEU especially 21(1); Directive 2004/38; Case C-184/99 Grzelczyk. There has also been moves to remove obstacles against movement, even for third-country nationals: e.g. Schengen Agreement.

Definition of workers: “The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration”: Case 66/85 Lawrie-Blum. This has been extended to jobseekers: Article 7, Directive 2004/38.

Freedom of establishment, freedom to provide and receive services
Chapters 2 and 3 of Title IV are distinguished so: establishment covers permanent business in another Member State (Article 49 seq.); services involve temporary transactions (Article 56 seq.). Directive 2004/38 is relevant here. The “official authority” exception does not apply where the final discretion for decision making is elsewhere: Case 2/74 Reyners.

Freedom of establishment applies to a self-employed person, i.e. one who is “[1] outside any relationship of subordination concerning the choice of that activity, working conditions and conditions of remuneration; [2] under that person's own responsibility; and [3] in return for remuneration paid to that person directly and in full”: Case C-268/99 Jany. It applies for a company where there is “the actual pursuit of an economic activity through a fixed establishment in another Member State for an indefinite period”: Case C-221/89 Factortame II; “[1] actual establishment of the company concerned in the host Member State and [2] the pursuit of genuine economic activity there”: Case C-196/04 Cadbury Schweppes.

Freedom to provide or receive services includes the freedom to travel for such: Case 286/82 Luisi and Carbone. “Services” is defined residually: Article 57 TFEU. The freedom applies even where neither party travels: Case 352/85 Bond van Adverteerders. It can lead to third-country nationals being granted residence: Case C-60/00 Carpenter. It extends horizontally “to rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services”: Case 36/74 Walrave and Koch.

Free movement of capital and payments
Restriction of movement of capital and on payments are prohibited, with some exceptions: Chapter 4 (Article 63 to 66) plus Article 75 (freezing assets for security). This is the only freedom which deals with movement to and from third countries expressly. This has direct effect: Case C-163/94 Sanz de Lera. Double taxation is not contrary to free movement of capital: Case C-513/04 Kerckhaert and Morres v Belgium.