European Business Law Understanding the Fundamentals
The Economic Freedoms
Week 5
1.
Question 1
Which ground cannot justify a restriction on the free movement of capital?
General economic concerns cannot justify a restriction of the free movement of capital, whereas the other objectives may be legitimate restrictions.
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2.
Question 2
What principle is enshrined in Article 45(2) TFEU and re-iterated in Regulation 492/2011 in relation to workers?
Workers’ right to non-discrimination is enshrined in the Treaty. Under Article 45(2) TFEU freedom of movement entails the abolition of any discrimination between workers of the Member States as regards employment, remuneration and other conditions of employment. Regulation 492/2011 provides for equality between EU migrant workers and workers of the host state with respect to access to employment and conditions of employment. Directive 2004/38 also incorporates the right to equality of treatment for persons falling with its scope, including workers
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3.
Question 3
The public service exception in Article 45 (4) TFEU entails that…
(Check all that apply)
The public service exception entails that Member States are allowed to discriminate in favour of their own nationals in selecting the people who work in the public service. It is important to note however, that not all posts in the public service fall within the exception. Furthermore the exception does not allow for discrimination of workers once they have been admitted to the post.
The public service exception covers both direct and indirect discrimination.
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4.
Question 4
On what grounds may Member States restrict rights of free movement of persons?
(Check all that apply)
Article 45(3) TFEU allows the Member States to limit the free movement rights of workers on specified grounds. Article 21 TFEU does not contain such an express derogation of EU citizens’ free movement rights although it states that these rights are subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. Read in conjunction with Chapter VI of Directive 2004/38 (“Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health”) it becomes clear that the same derogations apply.
5.
Question 5
Does the principle of mutual recognition mean that a product lawfully sold in one national market shall always be lawfully sold at all other national markets within the EU internal market?
The principle of mutual recognition is only a presumption that can be changed. This can happen if a Member State shows that the difference between national rules can be justified by mandatory requirements, such as the protection of the environment or consumers.
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6.
Question 6
Under which conditions does a certain selling arrangement fall outside the scope of Article 34 TFEU according to the Keck judgement?
(Check all that apply)
Please review Julian Nowag’s lecture on the Free Movement of Goods. Also, it’s a good idea to have a look at the Keck-case (C-267/91). It’s a landmark case and essential to understanding the legal framework surrounding the free movement of goods and possible restrictions.
7.
Question 7
In addition to freedom of establishment, what principle is enshrined in Article 49 TFEU in relation to the self-employed?
For the self-employed, the key equality provision is Article 18 TFEU which sets out the general principles of non-discrimination on grounds of nationality “within the scope of the Treaty”. Article 18 is supplemented by Article 49 TFEU, which includes the right to pursue activity “under the conditions laid down for its own nationals by the law of the country where such establishment is effected”. Whilst providing for equality, this provision can be problematic when applied to host state rules concerning professional conduct and professional qualifications, which may hinder or make less attractive the exercise of free movement rights. Persons wishing to exercise the right of establishment may well find the host state’s requirements difficult or impossible to satisfy, even though they comply with their home state’s requirements.
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8.
Question 8
On which grounds can derogations be made to the freedom of establishment and the freedom to provide services?
(Check all that apply)
Article 52 and 62 TFEU state the grounds on which discrimination is allowed in the context of the freedom of establishment and the freedom to provide services. The derogations are regulated in secondary legislation. For natural persons that is Directive 2004/38, for companies that is Directive 2006/123.
9.
Question 9
What status is established by Article 20 TFEU?
Article 17 EC, inserted into the EC Treaty by the Treaty on European Union, established citizenship of the European Union and provides that every national of a Member State is a Union citizen. Article 21 TFEU grants free movement rights to all Union citizens, subject to ‘the limitations and conditions’ in the Treaty and secondary legislation. Clarification of Union citizens’ free movement rights is found in case law and in Directive 2004/38. The Court of Justice has used Union citizenship as a basis for rights, for instance in Sala, Grzelczyk and Baumbast.
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10.
Question 10
Which transport service falls under the general Treaty provisions on the free movement of service?
Please review Julian Nowag’s lecture on The Free Movement of Services. Also, have a look at Article 58(1) TFEU and Article 100 TFEU.
Please review Julian Nowag’s lecture on The Free Movement of Services. Also, have a look at Article 58(1) TFEU and Article 100 TFEU.
