Centros Ltd v Erhversus-og Selkabssyrelsen no relation European Union
Establishment
As well as creating rights for "workers" who generally lack bargaining power in the market, the Treaty on the Functioning of the European Union also protects the "freedom of establishment" in article 49, and "freedom to provide services" in article 56. In Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano the Court of Justice held that to be "established" means to participate in economic life "on a stable and continuous basis", while providing "services" meant pursuing activity more "on a temporary basis". This meant that a lawyer from Stuttgart, who had set up chambers in Milan and was censured by the Milan Bar Council for not having registered, should claim for breach of establishment freedom, rather than service freedom. However, the requirements to be registered in Milan before being able to practice would be allowed if they were non-discriminatory, "justified by imperative requirements in the general interest" and proportionately applied. All people or entities that engage in economic activity, particularly the self-employed, or "undertakings" such as companies or firms, have a right to set up an enterprise without unjustified restrictions. The Court of Justice has held that both a member state government and a private party can hinder freedom of establishment, so article 49 has both "vertical" and "horizontal" direct effect. In Reyners v Belgium the Court of Justice held that a refusal to admit a lawyer to the Belgian bar because he lacked Belgian nationality was unjustified. TFEU article 49 says states are exempt from infringing others' freedom of establishment when they exercise "official authority". But regulation of an advocate's work (as opposed to a court's) was not official. By contrast in Commission v Italy the Court of Justice held that a requirement for lawyers in Italy to comply with maximum tariffs unless there was an agreement with a client was not a restriction. The Grand Chamber of the Court of Justice held the commission had not proven that this had any object or effect of limiting practitioners from entering the market. Therefore, there was no prima facie infringement freedom of establishment that needed to be justified.
In regard to companies, the Court of Justice held in R (Daily Mail and General Trust plc) v HM Treasury that member states could restrict a company moving its seat of business, without infringing TFEU article 49. This meant the Daily Mail newspaper's parent company could not evade tax by shifting its residence to the Netherlands without first settling its tax bills in the UK. The UK did not need to justify its action, as rules on company seats were not yet harmonised. By contrast, in Centros Ltd v Erhversus-og Selkabssyrelsen the Court of Justice found that a UK limited company operating in Denmark could not be required to comply with Denmark's minimum share capital rules. UK law only required £1 of capital to start a company, while Denmark's legislature took the view companies should only be started up if they had 200,000 Danish krone (around €27,000) to protect creditors if the company failed and went insolvent. The Court of Justice held that Denmark's minimum capital law infringed Centros Ltd's freedom of establishment and could not be justified, because a company in the UK could admittedly provide services in Denmark without being established there, and there were less restrictive means of achieving the aim of creditor protection. This approach was criticised as potentially opening the EU to unjustified regulatory competition, and a race to the bottom in legal standards, like the US state of Delaware, which is argued to attract companies with the worst standards of accountability, and unreasonably low corporate tax. Appearing to meet the concern, in Überseering BV v Nordic Construction GmbH the Court of Justice held that a German court could not deny a Dutch building company the right to enforce a contract in Germany, simply because it was not validly incorporated in Germany. Restrictions on freedom of establishment could be justified by creditor protection, labour rights to participate in work, or the public interest in collecting taxes. But in this case denial of capacity went too far: it was an "outright negation" of the right of establishment. Setting a further limit, in Cartesio Oktató és Szolgáltató bt the Court of Justice held that because corporations are created by law, they must be subject to any rules for formation that a state of incorporation wishes to impose. This meant the Hungarian authorities could prevent a company from shifting its central administration to Italy, while it still operated and was incorporated in Hungary. Thus, the court draws a distinction between the right of establishment for foreign companies (where restrictions must be justified), and the right of the state to determine conditions for companies incorporated in its territory, although it is not entirely clear why.Other important cases to be considered are:Services Directive
Launched in 2004 by the European Commission, It was seen as an important kick-start to the Lisbon Agenda which, launched in 2000, was an agreed strategy to make the EU "the world's most dynamic and competitive economy" by 2010. The main aim of the Directive is to create a genuine internal market in Services. As the directive intends to harmonise rules, the main idea is to eliminate regulation that hampers trade and directive investment in services. The Services Directive introduces the principle of "country of origin" for the provision of services in the EU, meaning that a legal/natural person following the rules in its home country is entitled to provide services in other EU countries without following additional regulation in the host country where the service is provided.In addition to that, the directive is responsible for establishing:
Single Points of contact serving as one-stop-shops for service providers to get information and complete administrative formalities online in all EU countries
Rights for recipient of services strengthening consumers rights and business receiving services in the EU
Administrative cooperation and mutual assistance in the supervision of service providers in EU countries
Guide that sums up the basic information on the services directive.The implementation of the directive has been significantly delayed in a number of Member States in relation to the original deadline (28 December 2009). In June 2010 the Commission started infringement procedure against some member states – namely Austria, Belgium, Cyprus, France, Germany, Greece, Ireland, Luxembourg, Portugal, Romania, Slovenia and the United Kingdom – that had not communicate the measures they had adopted in order to transpose the directive.Financial Services
The rights to provide cross-border services in the field of finance is also guaranteed within the Union's legislative framework and it constitutes one of the pillars of the European single market. Since the implementation of free movement of capitals after the Single European Act (SEA), the subsequent Financial Services Action Plan (1999) and the recent launch of the Capital Markets Union under the Junker administration, several directives and regulations were proposed and adopted by the institutions in order to facilitate the process of cross-border provision of financial services. The most relevant of them are:
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