Services and Establishment
10 important questions on Services and Establishment
Cross-border element (freedom of establishment)
- In case someone moves to another country, the cross-border economic activity does not already have to be realized.
- Measures that prevent market access are also caught by Article 49 TFEU (CJEU, Klopp case)
--> Because Article 49 TFEU includes the fact to take up and pursue activities--> Connection with Italian Trailers Case and Bosman
Primary and secondary establishment
- refers to companies who want to set up an office in a second member state.
- There is a national from one MS who moves to another MS to set up a business there
Secondary establishment:
- It is not about moving companies or office
- It is about the right to open subsidiary companies
- I.E Primark (company under Irish law) but has a lot of subsidiary companies through the entire EU --> they are grant the right because of the right to secondary establishment
- The Court often refers to the principle of mutual recognition
Free movement (of establishment) of companies (Article 54 TFEU)
"Companies or firms formed in accordance with the law of the Member State and having their registered office, central administration or principal place of business within the Union shall [...] be treated in the same way as natural persons who are nationals of Member States."
"'Companies or firms' means companies or firms constituted under civic or commercial law, including cooperative societies, and other legal persons governed by public or private law, safe which who are non-profit-making."
--> Under EU law: As soon as an entity performs economic activity, it is considered a company
- Higher grades + faster learning
- Never study anything twice
- 100% sure, 100% understanding
For my 1st exam I got a C. Then, I started looking for ways to learn better and I came across Study Smart. Since then I have scored a A+, A, A- and another A. I highly recommend it to everyone who wants to hear it. I am so happy with it!!
I was struggling to finish all my first-year subjects for 3 years. Then I discovered Study Smart, which helped me to finish all of them within 3 months.
Because of StudySmart, things are going well in many ways. Before, I always had study stress and no time for anything. Now I feel calm and confident (because of the program). I used to score a B, now I usually score an A or A+.
Hey Chris, I really want to thank you very much for developing the platform, I usually got around C for my exams, now I scored an A+, an A and a A- !!
Since using Study Smart, my average has increased significantly. I even completed a statistics course with a A+ while I'm bad at statistics. I took on extra courses this year, because of Study Smart. Thanks so much!
Ever since I started studying with StudySmart I passed all my exams !!! No more re-sits!! At first, I was happy with a pass and now I only get good grades. Many thanks!
I aced all the courses I studied with Study Smart. For law, I first scored a D, and now an A! I’m 100% sure that I’ll pass all the courses I study with Study Smart.
I always thought I studied well. My grades were fine. I could never have imagined that applying these study skills would have such a huge and direct impact on my grades, my speed and the pleasure I have in learning.
For the first time, I finally feel totally confident about the way I learn. I have the perfect overview and make great progress in terms of speed and the grades I get. Thanks, Chris!
I immediately started to enjoy learning again, and my grades soared. All of a sudden, everything went better. I highly recommend Study Smart to all students..
Being able to create my materials online made the process of studying so much smoother and quicker. I no longer have to spend a huge amount of my time on creating my summaries.
At first, my notes were a mess. Now I use Study Smart to take my notes in a perfectly structured way. It helps me to save a lot of time and do other things I enjoy.
Students that study with Study Smart get better grades. The system applies all the learning methods in such a way that both well-performing students and students who struggle perform much better.
Hi Chris, I would like to thank you very much. Last year I scored C on a course, and this year I got an A+ thanks to your method! Thank you very much!
The largest effect is that my child is more enthusiastic about school! Every parent wants their children to be happy at school, Study Smart made it happen.
In high school, I failed several exams, and that has really changed now. I actually needed this tool very much back then. Since I started studying with StudySmart, I haven't had any D's. My average score is now an A and those are results I would have never had in the past
With my old method, I passed only 3 out of 8 courses. Since I started taking my notes digitally in Study Smart, I have passed all my courses on the first try. For me, StudySmart takes away the stress of wondering if I will pass or not.
Thanks to StudySmart, I passed all my exams, and with better grades than before! On top of that, I have mastered a very good study method now, which I am confident will help me earn my degree.
Harmonization on EU level regarding free movement of establishment
--> Ordinary legislative procedure
- Directive 77/249 & 98/5 (lawyers)
- Directive 85/384 (architects)
- Directive 82/489 (hairdressers)
- ETC --> Sectorial procedure
"The Delaware Effect" (Freedom of establishment)
- Over 50% of publicly traded corporations in the United States and 60% of the Fortune 500 are incorporated in the State of Delaware
Parallel in the EU: Regulatory competition
- Member States are competing between each other to become the most attracting 'tax state' because of interest of national economy
- Dramatic issue: but legal (because of TFEU)
Regulatory competition in the EU
What can the EU do? (Can the EU stop MS's to become tax havens?)
- Tax is still a competence of the Member States
- Only prohibition in the TFEU (art. 110) is based on discrimination
- The only option left for the EU is to regulate:
--> So the Council would have to the EU issuing legislation on the harmonization of national (corporate) taxes --> not happened because a number of MS's do not agree because being a tax haven can be beneficial for the national economy
Justifications of infringements of the freedom of establishment
- Article 51 TFEU: exercise of the authority (public function aka. Police)
- Article 52 TFEU: (- Public policy - Public security - Public health)
- Mandatory requirements: (Case law exceptions/rule of reason) + apply only in cases of indirect discrimination
--> Compare with free movement of workers
--> Always check the additional requirements (PEN) (Gebhard case)
The Posted Worker Directive
Definition
1. For the purposes of this Directive, ‘posted worker’ means a worker who, for a limited period, carries out his work in the territory of a Member State other than the State in which he normally works.
2. For the purposes of this Directive, the definition of a worker is that which applies in the law of the Member State to whose territory the worker is posted.
NEW Posted Workers Directive (2020)
Aim: less (unfair) competition on wages and/or less displacement on national workers
Means: further transition to host country control:
- Application to posted workers of all the mandatory elements of renumeration (instead of 'minimum rates of pay')
- Application to posted workers to the rules of the receiving member state on workers' accommodation and allowances of reimbursement of expenses during the posting assignment
- For longterm postings (longer than 12 or 18 months), application of an extended set of terms and conditions of employment of the receiving Member State.
Services? (Article 57 TFEU)
- As long as they are not performed under the direction of another person!
- As long as they are provided temporarily! (NOTE: and only as long as they are cross-border services!)
The question on the page originate from the summary of the following study material:
- A unique study and practice tool
- Never study anything twice again
- Get the grades you hope for
- 100% sure, 100% understanding
