EU Right of Establishment and Free Movement of Services 📚

Key Topics Covered

• Right of establishment
• Free movement of services
• Free movement of lawyers in the European Union

Right of Establishment

• Covered by: Natural persons and legal persons
  • For further explanation on companies, refer to chapters

Provision of Services vs. Right of Establishment

• Right of Establishment: Permanent basis
• Free Movement of Services: Non-permanent, temporary basis

Treaty Provisions

• Article 49-55 of the TFEU: Right of establishment
• Article 49: Includes both individuals and legal persons
  • Distinction between right to pursue and right to access an activity
  • Primary Establishment: Establishing in a new Member State
  • Secondary Establishment: Establishing additional branches in a new Member State
• Article 52: Derogations for public policy, public security, and public health

Discrimination in Right of Establishment

• Equal treatment principle: No direct or indirect discrimination based on nationality
• Direct Discrimination: Treating migrants less favorably than nationals
  • Permissible only for reasons under Article 52 (public policy, security, etc.)
  • Example: Belgian rule preventing Dutch nationals from practicing law
• Indirect Discrimination: Rules that are nationality-neutral but disadvantage migrants
  • Example: Professional body registration requirements
  • Professional Qualifications Directive 2005/36: Recognition rules apply

Free Movement of Services

Provision Under the Directive (2005/36)

• Temporary and Occasional Basis: Services can be provided without needing recognition of professional qualifications
• Regulated Professions: Specific qualifications and professional experience might be needed

Lawyers' Free Movement and Establishment

Directives for Lawyers

• Directive 77/249: Freedom to provide services
• Directive 98/5: Practicing law in other EU Member States
  • Lawyers can offer services in another member state temporarily with home professional title
  • For permanent establishment, they must register with host and home country bars
  • After 3 years of regular practice in the host country, they may acquire the host country's professional title

Application to Non-EU Nationals

• Different rules apply to third-country nationals, including Turkish migrants
  • Rights arising from the Ankara Agreement for Turkish nationals will be discussed in the second semester

Conclusion

• Understand key differences between right of establishment and free movement of services
• Familiarize with relevant Treaty Articles and Directives
• Note distinct rules for lawyers and their ability to practice across EU member states

Break Time:

• 10-minute break noted at the end.