User:Kaihsu/IMlawA5

European internal market.

Section A: The scope of the four freedoms.

Chapter 5: Personal scope – public and private parties.

Notes by Kaihsu Tai, 2012-02-15.

Goods
Article 30 TFEU applies to “a transit charge designed to compensate a private undertaking for bearing costs arising from the performance by the customs and veterinary services of their tasks as providers of services in the public interest even if it has not been imposed by the State but arises from an agreement concluded by that undertaking with its customers”: Case C-16/94 Dubois.

The “State” within the meaning of Articles 34 to 36 TFEU cover not only the central government, but also local authorities (Case 45/87 Commission v Ireland (Dundalk water pipes)), the legislature and the judiciary (Case 58/80 Dansk Supermarked), public undertakings and semi-public bodies (Case 249/81 Buy Irish, where the body is financed by the State, and a Minister has the power of final decision). Bodies with statutory powers are part of the State: Case 222/82 Apple and Pear Development Council, Case 266/87 The Queen v Royal Pharmaceutical Society of Great Britain, ex parte Association of Pharmaceutical Importers.

“Statements which, by reason of their form and circumstances, give the persons to whom they are addressed the impression that they are official positions taken by the State, not personal opinions of the official, are attributable to the State”: Case C-470/03 AGM.

Failure to curb privately-created obstacles is a restriction of intra-EU trade within the meaning of Article 34 TFEU: Case C-265/95 Commission v France (Spanish strawberries), strengthened by Regulation 2679/98, confirmed in Case C-112/00 Schmidberger.

Article 34 TFEU does not have horizontal direct effect; “a contractual provision cannot be regarded as a barrier to trade [...] since it was not imposed by a Member State but agreed between individuals”: Case C-159/00 Sapod Audic, overturning Dansk Supermarked; but see Case C‑171/11 Fra.bo concerning a private-law certification body. Horizontal relations are governed by competition rules in Articles 101 and 102 TFEU.

EU institutions cannot derogate from the rules of free movement of goods, save as permitted by the Treaties: Joined Cases 80/77 and 81/77 Commissionnaires Réunis.

Natural persons
Freedom of movement of persons are provided in Articles 45 (workers), 49 (self-employed persons), and 56 (service providers and recipients) TFEU.

Relationship with citizenship rules
“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect”: Article 21(1) TFEU; see Directive 2004/38.

Workers
The terms ‘worker’ and ‘activity as an employed person’ define the sphere of application of one of the fundamental freedoms guaranteed by the Treaty and for that reason must be given a broad interpretation: Case 139/85 Kempf, confirmed in Joined Cases C-22/08 and C-23/08 Vatsouras. These are determined by EU law, not national law: Case 53/81 Levin.

A worker is “a person performs services of some economic value [for a certain period of time] for and under the direction of another person in return for which he receives remuneration”: Case 66/85 Lawrie-Blum, confirmed in Case C-94/07 Raccanelli. It is irrelevant that the worker is employed on a part-time basis (Levin); unable to support him or herself by his or her work without social security assistance (Kempf); or in receipt of remuneration in kind (Case 196/87 Steymann, Case C-3/87 Agegate). The motive (Levin, Steymann) and the nature of the activity (Lawrie-Blum, Case 197/86 Brown) of the worker are also irrelevant. “It is for the national court to carry out the examinations of fact necessary to determine whether that is so in the case pending before it”: Case C-456/02 Trojani.

One is not a worker if his activity “constitutes merely a means of rehabilitation or reintegration” for him: Case 344/87 Bettray. “A national of a Member State who has worked in another Member State in the context of occupational training must be regarded as a worker [...] if he has performed services in return for remuneration, provided that his activities are genuine and effective” (Case C-3/90 Bernini), rather than “on such a small scale as to be purely marginal and ancillary” (Case C-357/89 Raulin).

Status before and after employment
The freedom in Article 45 TFEU “entails the right for nationals of Member States to move freely within the territory of the other Member States and to stay there for the purposes of seeking employment”: Case C-292/89 Antonissen. Refusal “to grant a tideover allowance to a national of another Member State seeking his first employment [...] on the sole ground that he completed his secondary education in another Member State” is contrary to Article 45 TFEU: Case C-258/04 Ioannidis.

Though a jobseeker is not a worker, a Member State cannot exclude a jobseeker who have established real links with the labour market there from a jobseeker’s allowance on the basis of discriminatory criteria: Case C-138/02 Collins overruling Case 316/85 Lebon, confirmed in Vatsouras.

Former workers, who have undertaken work in another Member State and have ceased to be employed, continue to hold the status of “worker”: Case C-413/01 Ninni-Orasche. A former worker has the right “to remain in the territory of a Member State after having been employed in that State”: Article 45(3)(d) TFEU.

“A national of another Member State who undertakes university studies in the host State leading to a professional qualification, after having engaged in occupational activity in that State” has the status of “worker”: Case 39/86 Lair. A national of a Member State seeking paid employment in the territory of another Member State having worked there 17 years earlier does not have the status of “worker”: Collins.

Employers
Employers (Case C-350/96 Clean Car Autoservice) and private-sector recruiters (Case C-208/05 ITC) can invoke the rights under Article 45 TFEU “to employ [...] workers who are nationals of another Member State”, as well as invoking the limitations therein (Case C-415/93 Bosman).

Who can invoke Article 49 TFEU?: self-employed persons
The rule on equal treatment with nationals is “capable of being directly invoked by nationals of all the other member states” in matters of establishment, without further implementing measures: Case 2/74 Reyners.

Who can invoke Article 56 TFEU?: service providers and recipients
The first paragraph of Article 56 TFEU and the third paragraph of Article 57 TFEU “have direct effect and may therefore be relied on before national courts, at least in so far as they seek to abolish any discrimination against a person providing a service by reason of his nationality or of the fact that he resides in a member state other than that in which the service is to be provided”: Case 33/74 van Binsbergen.

Family members
Directive 2004/38 provides for the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. (Regulation 492/2011 provides for the freedom of movement for workers within the Union.)

“Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there”: Article 23 of Directive 2004/38. In contrast, Article 11 of Regulation 1612/68 (now repealed; employment right in the host Member State for spouse and children of migrant workers) does not extend to other Member States for third-country nationals; such a person does not have the “right to take up an activity as an employed person in a Member State other than the one in which his spouse, a Community national, pursues or has pursued an activity as an employed person in exercise of her right to free movement”: Case C-10/05 Mattern and Cikotic.

“‘Family member’ means: (a) the spouse; (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; (c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b)”: Article 2(2) of Directive 2004/38. “Spouse” refers to a marital relationship only: Case 59/85 Reed. It is unaffected by separation: Case 267/83 Diatta, Case C-370/90 Singh. Article 13 of Directive 2004/38 provides for the retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership.

“Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. [...]”: Article 35 of Directive 2004/38; see also Case C-109/01 Akrich. However, the granting of “a residence permit to nationals of a non-Member State, who are members of the family of [an EU] national who has exercised his or her right of free movement” does not require the family member to “have previously been residing lawfully in another Member State”: Case C-1/05 Jia, confirmed by Case C-291/05 Eind, reinforced by C-127/08 Metock. “Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons: (a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen; (b) the partner with whom the Union citizen has a durable relationship, duly attested. The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people”: Article 3(2) of Directive 2004/38.

“The status of dependent member of a worker’s family is the result of a factual situation. The person having that status is a member of the family who is supported by the worker and there is no need to determine the reasons for recourse to the worker’s support or to raise the question whether the person concerned is able to support himself by taking up paid employment”: Lebon. Evidence of dependence “may be adduced by any appropriate means”: Jia. A mother cannot claim to be a “dependent” relative of a child only on account of emotional bonds: Case C-200/02 Zhu and Chen.

Against whom can Articles 45, 49, 56 be invoked?: horizontality
In addition to public authorities, Article 45 TFEU (workers) can be invoked against international sports federations which determine employment terms (Case 36/74 Walrave and Koch), private-law sport associations (Case C-415/93 Bosman), individual employers (Case C-281/98 Angonese), and private-law scientific research associations (Raccanelli).

Likewise, Articles 49 and 56 TFEU (establishment and services) can be invoked against sport associations with rules collectively regulating employment (Joined Cases C-51/96 and C-191/97 Deliège), private-law bodies governing an economic sector collectively (Case 90/76 van Ameyde), insurance firms with contractual conditions that disadvantage migrant workers (Case 251/83 Haug-Adrion), and trade unions (Case C-438/05 Viking Line, Case C-341/05 Laval).

Services: legal persons
Article 54 TFEU extends the right of establishment to certain companies or firms. Articles 49 and 54 TFEU “confer no right on a company incorporated under the legislation of a Member State and having its registered office there to transfer its central management and control to another Member State”: Case 81/87 Daily Mail.

“The right to form a company in accordance with the law of a Member State and to set up branches in other Member States is inherent in the exercise, in a single market, of the freedom of establishment guaranteed by the Treaty”; refusal “to register a branch of a company formed in accordance with the law of another Member State in which it has its registered office but in which it conducts no business where the branch is intended to enable the company in question to carry on its entire business in the State in which that branch is to be created” is contrary to Articles 49 and 54 TFEU: Case C-212/97 Centros, confirmed in Case C-167/01 Inspire Art.

“Where a company formed in accordance with the law of a Member State (‘A’) in which it has its registered office is deemed, under the law of another Member State (‘B’), to have moved its actual centre of administration to Member State B, [Articles 49 and 54 TFEU] preclude Member State B from denying the company legal capacity and, consequently, the capacity to bring legal proceedings before its national courts for the purpose of enforcing rights under a contract with a company established in Member State B”: Case C-208/00 Überseering.

Under Article 54 TFEU, in the absence of a uniform Community law definition of the companies which may enjoy the right of establishment on the basis of a single connecting factor determining the national law applicable to a company, the question whether Article 49 TFEU applies to a company can only be resolved by the applicable national law: Case C-210/06 Cartesio. See Regulation 2137/85 (European Economic Interest Grouping), Regulation 2157/2001 (European company statute).

Capital
Article 63(1) TFEU has direct effect: Joined Cases C-358/93 and C-416/93 Bordessa (by analogy), Joined Cases C-163/94, C-165/94 and C-250/94 Sanz de Lera (re third country), Case C-57/95 France v Commission (pension funds communication) (obiter). The main implementation is Directive 88/361.

Article 63 did not apply prior to the date of accession of a State to the EU, so it is incapable of remedying, with effect from the entry into force of the Treaty, a mortgage registration which, under the relevant national law, is vitiated from the outset by absolute and incurable nullity such as to render that registration non-existent: Case C-464/98 Stefan.

Article 63 does not allow a State to claim to be a private person in capital movement matters where the action is only possible for a public authority: Case C-478/98 Commission v Belgium (Belgian Eurobonds), Case C-98/01 Commission v UK (BAA special shares). Similarly, a national measure which derogates from general company law can violate Article 63: Joined Cases C-463/04 and C-464/04 Federconsumatori, Case C-112/05 Commission v Germany (VW blocking minority shares).