ABSTRACT
Summary 646
24.1 Introduction 649
24.2 Directive 2006/123/EC on Services in the Internal Market 650
24.3 The distinction between the right of establishment and the right to provide services 657
24.4 Beneficiaries of the right of establishment and of the right to provide services 660
24.5 Stages in the development of the right of establishment and of the right to provide services 664
24.6 The right of establishment 668
24.7 The right to provide and receive services 685
Aide-mémoire 702
SUMMARY
1. The right of establishment is guaranteed under Article 43 EC while the right to supply and receive services is enshrined in Article 49 EC. There is a close connection between both freedoms, bearing in mind that barriers to the provision of services affect operators who wish to become established in host Member States as well as those who provide services but are not established there. The EC Treaty prohibits a Member State from imposing any restriction as to which freedom an economic operator can choose. Its choice should be free and based on the best strategy for the growth and development of the business. Consequently, the Community approach is to create a legal framework to ensure that barriers to both freedoms are removed. 2. Directive 2006/123/EC on Services in the Internal Market, which was adopted on 12 December 2006 and must be implemented by 28 December 2009 at the latest, will have a great impact on the exercise of both freedoms. It introduces novel solutions while confirming the existing case law of
the ECJ in these areas. Its importance is highlighted by the fact that although both workers and self-employed persons participate in the life of a host Member State on a stable basis, there is no secondary legislation defining the rights of self-employed persons in a way similar to that contained in Regulation 1612/68 relating to workers. For that reason self-employed persons have relied heavily on the principle of non-discrimination embodied in Article 12 EC. Directive 2006/123 will certainly help to fill the gap, although in many instances all persons, irrespective of whether they are economically active, derive important rights from the principle of citizenship of the EU. 3. Community rules on the right of establishment and the right to provide services have many common features, to a point where in some circumstances it is not easy to determine which provisions should apply to a situation at issue. However, each freedom is distinct. The concept of “service” is defined as any self-employed economic activity which is provided for remuneration. The provision of services normally involves temporary and occasional pursuit of economic activities in a host Member State. Establishment involves participation, on a permanent and continuous basis, in the economic life of a host Member State, although for legal persons even an office managed by the enterprise’s own staff or by a person who is independent but is authorised to act on a permanent basis for the enterprise suffices to show establishment. In order to decide whether Article 43 or Article 49, applies account must be taken of the regularity, periodicity and continuity of the service provided in a host Member State. Generally, services are short-term while establishment is more long-term, but it results from the ECJ judgment in Schnitzer that services may be provided over an extended period of time, even over several years. In such a situation, in order to determine whether an undertaking or a person has ceased to be a provider of services and has become established in a host Member State, account must be taken of all available criteria and each case should be assessed individually.
