Fokus Invest AG v Finanzierungsberatung-Immobilientreuhand und Anlageberatung GmbH (FIAG).
Date: 2010-02-11
27. In that judgment, the Court pointed out, first, that the Agreement was  signed after the rejection by the Swiss Confederation, on 6 December 1992, of the Agreement on the European Economic Area (EEA) and that, by its refusal, the Swiss Confederation did not subscribe to the project of an economically integrated entity with a single market, based on common rules between its members, but chose the route of bilateral arrangements between the European Union and its Member States in specific areas (see, to that effect, Grimme , paragraph 27).
28. In the light of those findings, the Court concluded that the Swiss Confederation did not join the internal market of the European Union and that, consequently, the interpretation given to the provisions of Union law concerning that market cannot be automatically applied by analogy to the interpretation of the Agreement, unless there are express provisions to that effect laid down by the Agreement itself (see, to that effect, Grimme , paragraphs 27 and 29 and the case-law cited).
29. The Court then noted that the objectives of the Agreement, defined in Article 1, are established – according to the wording of that article – for the benefit of nationals of the Member States and the Swiss Confederation, and thus for the benefit of natural persons, and that all the categories of persons, whether Member State nationals or Swiss nationals, covered by the Agreement, with the exception of persons providing services and recipients of services, are by their nature categories of natural persons (see, to that effect, Grimme , paragraphs 33 and 34).
30. The Court reached the conclusion that, with the exception of Article 5(1) of the Agreement and Article 18 of Annex I thereto, which provide that companies have a right to provide specific services, no provision of the Agreement or its Annex grants any right to legal persons (see, to that effect, Grimme , paragraph 35).
31. After finding that, under the Agreement, the right of establishment in the territory of a Contracting Party applies only to a self-employed person who is a national of a Member State of the European Union or of the Swiss Confederation, and that Article 1(a) of the Agreement, as an objective, explicitly grants the right of establishment on a self-employed basis only to natural persons, the Court held that it could not be argued that legal persons were granted the same right of establishment as natural persons under the Agreement (see, to that effect, Grimme , paragraphs 36, 37 and 39).
42. According to the Court’s case-law, the condition laid down in Article 64(1) TFEU concerning restrictions which existed in respect of third countries on 31 December 1993 is satisfied where national legislation adopted after that date contains provisions which are, in substance, identical to the previous legislation, which existed at that date. That condition is not satisfied where provisions adopted after that date are based on an approach which differs from that of the previous law and establish new procedures (see, to that effect, Case C-157/05 Holböck  [2007] ECR I‑4051, paragraph 41 and case-law cited).