For the following prompt, I already have a text, but the text needs to be extended to at least two thousand five hundred words. You need to draft the arguments for Mr Pleger for the Austrian court. You should read the judgment of 14.11.2013 (Case C-390/12, Robert Pfleger et al) of the Court of Justice of the EU (and the opinion of AG E. Sharpston) and you should draft the action brought by Mr Pfleger before the Austrian Court (Unabhängiger Verwaltungssenat des Landes Oberösterreich) against the decision of the Bezirkshauptmannschaft (district authority) of Perg. In the action you should state the arguments based on EU law for the annulment of the decision, and you should explain why the Austrian Court must apply the provisions of the Treaty on the Functioning of the EU and of the EU Charter of Fundamental. Rights. Your arguments must be supported by ECJU case-law. This is the text I already have: [Your Name]
[Your Address]
[City, Postal Code]
[Date]
Unabhängiger Verwaltungssenat des Landes Oberösterreich
[Address]
[City, Postal Code]
Subject: Action brought by Mr. Pfleger against the decision of the Bezirkshauptmannschaft of Perg
Dear [Judge's Name],
I, Mr. Pfleger, am writing to bring an action before the Austrian Court (Unabhängiger Verwaltungssenat des Landes Oberösterreich) against the decision of the Bezirkshauptmannschaft (district authority) of Perg. I believe that the decision infringes upon my rights under EU law, specifically the Treaty on the Functioning of the European Union (TFEU) and the EU Charter of Fundamental Rights. I seek the annulment of the decision and request that the Austrian Court apply the provisions of the TFEU and the EU Charter of Fundamental Rights in assessing the legality of the decision. My arguments are supported by relevant case-law from the Court of Justice of the European Union (CJEU).
Argument 1: Infringement of the freedom to provide services
The decision of the Bezirkshauptmannschaft infringes upon my freedom to provide services, as protected by Article 56 of the TFEU. This freedom is a fundamental principle of the EU's internal market and ensures that service providers can offer their services across EU Member States without facing unjustified restrictions.
In the case of C-390/12, Robert Pfleger et al, the CJEU held that national legislation restricting the freedom to provide services must be justified by overriding reasons relating to the public interest. I argue that the decision of the Bezirkshauptmannschaft does not meet this requirement and is therefore in violation of EU law.
To support this argument, I would like to draw the Court's attention to the CJEU's judgment in the case of C-76/90, Säger v Dennemeyer. In this case, the Court held that any national legislation that restricts the freedom to provide services must be non-discriminatory, justified by overriding reasons relating to the public interest, and proportionate. The decision of the Bezirkshauptmannschaft fails to meet these criteria, as it imposes unjustified restrictions on my ability to provide services.
Furthermore, the CJEU's judgment in the case of C-55/94, Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano, provides additional guidance on the application of the freedom to provide services. The Court held that national legislation must not create a barrier to the exercise of this freedom, and any restrictions must be objectively justified and proportionate. The decision of the Bezirkshauptmannschaft does not meet these requirements, as it imposes arbitrary restrictions on my ability to provide services without any objective justification.
Argument 2: Disproportionate restrictions on the freedom to provide services
The decision of the Bezirkshauptmannschaft imposes disproportionate restrictions on my freedom to provide services. According to the principle of proportionality, any restrictions on the freedom to provide services must be suitable for achieving the intended objective and must not go beyond what is necessary to achieve that objective.
In the case of C-390/12, the CJEU found that the national legislation at issue was disproportionate, as it imposed a blanket ban on the provision of certain services without considering whether less restrictive measures could achieve the same objective. I argue that the decision of the Bezirkshauptmannschaft is similarly disproportionate and should be annulled on this basis.
To further support this argument, I would like to refer to the CJEU's judgment in the case of C-384/93, Alpine Investments v Minister van Financiën. In this case, the Court held that any restrictions on the freedom to provide services must be proportionate and must not go beyond what is necessary to achieve the intended objective. The decision of the Bezirkshauptmannschaft fails to meet this requirement, as it imposes excessive restrictions on my ability to provide services without considering less restrictive alternatives.
Additionally, the CJEU's judgment in the case of C-288/89, Collectieve Antennevoorziening Gouda v Commissariaat voor de Media, provides further guidance on the principle of proportionality. The Court held that national legislation must not impose restrictions that are disproportionate to the intended objective, and any restrictions must be objectively justified. The decision of the Bezirkshauptmannschaft does not meet these criteria, as it imposes disproportionate restrictions on my ability to provide services without any objective justification.
Argument 3: Violation of the EU Charter of Fundamental Rights
The decision of the Bezirkshauptmannschaft violates my rights under the EU Charter of Fundamental Rights, specifically the right to conduct a business (Article 16) and the right to property (Article 17). By restricting my ability to provide services, the decision infringes upon these fundamental rights.
In the case of C-390/12, the CJEU emphasized the importance of respecting fundamental rights when applying EU law. I argue that the Austrian Court must take these rights into account when assessing the legality of the decision of the Bezirkshauptmannschaft.
To support this argument, I would like to refer to the CJEU's judgment in the case of C-112/00, Schmidberger v Austria. In this case, the Court held that the fundamental rights protected by the EU Charter of Fundamental Rights must be taken into account when applying EU law, and any restrictions on these rights must be proportionate and justified by overriding reasons relating to the public interest. The decision of the Bezirkshauptmannschaft fails to meet these criteria, as it infringes upon my fundamental rights without any proportionate justification.
Moreover, the CJEU's judgment in the case of C-5/88, Wachauf v Germany, provides additional guidance on the application of fundamental rights in the context of EU law. The Court held that any restrictions on fundamental rights must be proportionate and must not go beyond what is necessary to achieve the intended objective. The decision of the Bezirkshauptmannschaft does not meet these requirements, as it imposes excessive restrictions on my fundamental rights without considering less restrictive alternatives.
Argument 4: Inconsistency with EU law and CJEU case-law
The decision of the Bezirkshauptmannschaft is inconsistent with EU law and the relevant case-law of the CJEU. As demonstrated in the aforementioned cases, the CJEU has consistently held that any restrictions on the freedom to provide services and fundamental rights must be non-discriminatory, justified by overriding reasons relating to the public interest, and proportionate.
I argue that the decision of the Bezirkshauptmannschaft is inconsistent with these principles and should be annulled on this basis. The Austrian Court must apply the relevant provisions of the TFEU and the EU Charter of Fundamental Rights in order to ensure compliance with the principles of the EU's internal market and the protection of fundamental rights.
Argument 5: Failure to consider less restrictive alternatives
The decision of the Bezirkshauptmannschaft fails to consider less restrictive alternatives that could achieve the same objective without infringing upon my freedom to provide services and fundamental rights. This failure is contrary to the principle of proportionality, as established by the CJEU in its case-law.
For example, in the case of C-267/06, Tadao Maruko v Versorgungsanstalt der deutschen Bühnen, the CJEU held that national legislation must not impose restrictions that are disproportionate to the intended objective, and any restrictions must be objectively justified. The decision of the Bezirkshauptmannschaft does not meet these criteria, as it imposes excessive restrictions on my ability to provide services without considering less restrictive alternatives.
In conclusion, I argue that the decision of the Bezirkshauptmannschaft should be annulled on the basis of EU law, specifically the TFEU and the EU Charter of Fundamental Rights. By demonstrating that the decision infringes upon my freedom to provide services, violates my fundamental rights, is inconsistent with EU law and CJEU case-law, and fails to consider less restrictive alternatives, I make a strong case for the annulment of the decision.
The Austrian Court must consider these arguments and apply the relevant provisions of EU law in order to ensure compliance with the principles of the EU's internal market and the protection of fundamental rights. I respectfully request that the Court annul the decision of the Bezirkshauptmannschaft and uphold my rights under EU law.
Thank you for your attention to this matter. I trust that the Court will carefully consider my arguments and reach a just decision in accordance with EU law and the principles of the European Union.
Sincerely,
Mr. Pfleger