European Union Laws - Essay Example

?EU LAW 1a. The issue in this question requires an analysis on the distinction between persons who are established and those who are service providers. The courts in the Case 221/89 Factortame1, said that the ‘actual pursuit of an economic activity through a fixed establishment in another Member State for an indefinite period’. The important distinction between services and establishment is that ‘establishment’ is in respect of an act which is undertaken on a ‘stable and continuous basis’ which is pursued in another Member State, on the other hand services are not permanent in nature. The act falling in the aforementioned depends on ‘duration, regularity, periodicity and continuity of the provision of the services’. (Case 55/93 Gebbhard v. Consiglio Dell’Ordine Degli Avvocati e Procuratari di Milano2). The courts have stated that if an office is set up in the home state, that in itself would not be conclusive evidence as to establishment, similarly in respect service provider, he may set up ‘the infrastructure necessary for the purpose of performing the services in question’ in host state which can be an office, thus that would not be conclusive. In respect of establishment the court in case 81/87 Daily Mail3 held that stated that Article 43 of Directive73/148 did not provide any directly effective measure for transferring a company to another member state without restrictions and thus it was found that Directive 73/148 applied only to natural persons and not to companies. The rights granted in establishment allows dual establishment whereby one can continue to operate in its home state and can have branches in other Member States. The courts have found that such a right of having establishment in more than one state is applicable to natural persons and companies (Case 107/83 Klopp)4. In respect of freedom to provide service, it is a residual category, that it covers areas which have not already been covered on the other free movements. Services can be way of movement of the person or analogous whereby no movement takes place. The courts have applied the approach as applied in respect of courts, whereby it has stated that the Member States are under a requirement to justify national rules of applicability on the basis of it being necessary and proportionate. In respect of services, the important thing is its definition which is in Article 50 TEC and stipulates the important thing that leads to determination of services, the first one being that services are temporary in nature and are under normal circumstances provided for remuneration. In respect of services being temporary in nature, the important decision was that of Gebhard. As far as remuneration is concerned, it is necessary to distinguish whether the services are economic nature or for a non-profit making purpose. A private school coming under the head of services was considered in Case 263/86 Belgium v. Humbel5 where it was found that the school was not “the nature of the activity is not affected by the fact that pupils or their parents must sometimes pay fees” so as to provide for operating expenses. However, in Case C-109/92 Wirth6 it was held that if the institute was operational with the aim of making a profit and the basic mode of financing was private fees, then that would be service under Article 49 EC Treaty. The courts have strongly detested discrimination on the basis of nationality, establishment or residence, as can be seen in Case 33/74 Van Binsbergen7 where the requirement of a person to be habitually resident in the host state was said to be contrary to Article 49 EC Treaty. 1b. In respect of Sylvester it is important to consider the decision of Gebhard whereby it was stated that the duration, regularity, periodicity and continuity of the provision of the services’ is looked into. As far as services are considered they are considered to be temporary in nature, and actual movement is not required. In respect of Sylvester the duration has been two years, as far as regularity is concerned that cannot be ascertained from the facts. The only issue in respect of the internet translation service would be the fact that there is no establishment which is actually moving into another Member State. In respect of service provider the courts would look into the fact that there is a service which is temporary in nature and the fact that there has been no movement would be looked into. In determining this courts would also look into the necessity so as to move. After an evaluation of the fact it is evident that the services that are being provided by Sylvester are clearly categorized into the head of service provider because of the fact that there is no establishment that is found in respect of this and there is no movement that is required. Furthermore, the service is temporary in nature. 2. As far as the family members of EU citizens are concerned the law in respect of Tina’s grandmother will now be discussed. The approach that has been considered by the Directive 2004/38/EC is that the application of directive is dependent on the fact that they or their family member ‘move to or reside in a Member State other than their own’ (Article 3(1) of Directive 2004/38/EC). Thus the rights are activated if the free movement right has been exercised. The important authority in respect of this is Case 35, 36/82 Morson and Jhanjan v. Netherlands8 where in the facts were those two Dutch workers sought that their parents be allowed to join them in Netherlands. However, the court in this case found that since the Dutch workers had not moved to another Member State therefore it was a matter of ‘purely internal situation’ and was therefore outside the ambit of Community law. However, an interesting evaluation of the courts which is relevant to the facts of our case is Case C069/00 Carpenter9 wherein a UK national who had been residing in UK, but was involved in provision of services to clients who were in other member states argued that his wife be allowed in UK. It was argued that it was an internal situation and outside Community law as there had been no movement. However, the courts construed that since it was provision of services which was covered under Article 49 EC Treaty which coupled with Article 8 of the European Convention on Human Rights entitled his wife to live with him in the UK. Article 2(2) of Directive 2004/38/EC provides family member who are covered. Furthermore, Article 3(2)(a) Directive 2004/38/EC provides that the member state should facilitate other family members who are not provided for, but are dependent on the EU national or members of his/her household, or ‘where serious health grounds strictly require the personal care by the Union citizen’ In respect of Tina’s mother it can be said that since Sylvester provides services which are similar in nature as that in Carpenter, therefore he can argue on that basis. Furthermore, since it has been stated by way of Article 3(2)(a) that members of household would cover Tina and the fact that health grounds are present would lead to Tina’s grandmother being allowed to reside with her in the UK. 3. In respect of the rights that may be available to UK, they can argue on the basis that the fact in Carpenter was that Article 8 European Convention on Human Rights was considered and it was a matter between a husband and wife, clearly distinguishable from the facts of the current situation. Furthermore, it can stated that since it’s Tina’s grandmother, she herself has to show what she does and how she will be supporting he. In respect of Sylvester it can be said that since the grandmother is not the family member of Sylvester, he cannot apply for her residence. The application Directive 2004/38 would be considered and the fact that Article 3(2)(a) of the aforementioned directive states there should be facilitation only on serious health grounds it can be argued that frail and aged grandmother would in no way satisfy this criteria and therefore there is not serious health risk. Thus the fact that has been stated the age of the grandmother would not matter because on that basis only she cannot come and reside with Tina and there would be health grounds which would be needed so as to satisfy the fact that such a family member should be considered. In respect tof the facts at hand only these facts have been stipulated and therefore definite protection being offered to the grandmother cannot be decided upon on the basis of the facts that are available. Thus the UK government can rely upon these justifications on the basis that since the grandmother is not a family member of Sylvester she should not be considered. 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