Law of European Union - Assignment Example

EU Law Assignment Ans (a) The Right to free movement, the freedom of establishment and the freedom to provide cross border services have been deemed to be vital in the creation and preservation of a free internal market within the European Community1b. Article 43 of the EC Treaty enables a permanent economic activity such as the provision of the veterinary service if it is of a stable and continuous nature, to be carried out in one of more Member states, while Article 49 permits provision of temporary services. The right of the Spanish nationals to freedom of movement within the EU is also recognized under Directive 2004/38/EC. The principle of equal treatment to all nationals within the Community under Article 59 of the EC Treaty will also apply in this case. 1a In the context of their veterinary business, the freedom of establishment as conferred by Article 52 of the EC Treaty for self employed persons includes “the right to set up and pursue activities as self employed persons” under the same conditions as established for the nationals of a particular member state,1 therefore since “Marvellous Mammals of Madrid” has been set up in Spain, its activity can be “taken up and pursued on the territory of any other member state”2 subject to the provision that no contrary rules exist in the host state3 (in this instance France and Portugal). Applying Article 59 of the EC Treaty in this context, the facility for a provider of services established in one State to supply his services to potential recipients in other States will be allowed.4 This Article also allows a provider to provide services in Member States other than that where he/she is established and also allows recipients for those services from nationals of any Member State.4a In the course of establishment of their veterinary business in France and Portugal, it will be necessary for the Spanish nationals to comply with the internal rules and professional qualifications required by the member States and their vocational qualifications must be recognized by the relevant authorities in Spain and Portugal. But Community law cannot exclude nationals of other member states when they have resided lawfully in another member state (Spain) and “have there acquired a vocational qualification which is recognized under the Community law”.5 Council Directive 89/48 EEC states that if a person has acquired a higher education professional diploma in one member State, that diploma must be recognized in another Member States. This Directive establishes a uniform application across the European Union, and a Member State cannot require a national to acquire additional qualifications “where the person concerned has already acquired all or part of those qualifications in another Member State.” Therefore, since these nationals are fully qualified to practice veterinary services, France and Portugal may be in violation of Article 5 of the EC Treaty if they fail to recognize this qualification under the EC Directive mentioned above. For instance, in the case of Thieffry the issue was the right of the national of one member state who had acquired national certification to practice as advocate, to practice in another member State and if the certificate was deemed to be equivalent qualification – the Court held that any restriction placed upon the right to practice when an equivalent qualification had been obtained in another State would constitute an unacceptable restriction on the freedoms guaranteed under community law6. Therefore the precedent established in this case could be applied to the vocational certification to practice veterinary science, it is unlikely that there would be any grounds for the French or Spanish authorities to refuse to recognize the vocational certification the Spanish nationals possess, since this could constitute an unacceptable restriction under Community Law. These Spanish nationals also have the right to provide their services for remuneration within the Community.7 The fact that these nationals already have an establishment in Spain cannot constitute a restriction either, since the freedom of establishment permits the establishment of branches in other member States.8 By relying on the precedent in the case of Kloop, the Spanish nationals should be able to assert their rights to set up their practice in both these countries. The Governments cannot also invoke the grounds that since they have established themselves in Spain, they cannot open branches in France or Portugal. The right to employment in any Member State of the European Community was also established in the case of Gul9 and the question of eligibility for employment was at issue in the cases of Groener10 and Angonese11 and was resolved in favor of the applicants. The last two cases also raised the important issue of discrimination in the workplace, so that no Member State can discriminate against members of another Member State in employment opportunities within the Community. The criterion laid down in the case of Sogtiu was that the requirement for equality did not refer only to overt discrimination on the basis of nationality but also included “all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result”12 and this was also found to include discrimination by nationality or company seat. In this instance, what is at issue is the right of the Spanish nationals to provide their services in the other countries. They are already fully qualified under the law of their own State to provide veterinary services, and Article 59 also allows them to provide those services in other Member States, at least on a temporary basis. Therefore, the French and Portuguese authorities cannot refuse to allow these individuals to practice on grounds of their vocational qualifications. They can at best, require these nationals to pass an equivalent examination in their own countries to practice as a veterinarian. However, in the event that professional authorities in France and Spain recognize the vocational qualification they already have as being equivalent to those in use in their countries, then they cannot refuse to allow them to set up practice in their countries. Any such refusal could constitute a covert form of discrimination as laid out in the case of Sotgiu. In conclusion, it may therefore be stated that these four nationals enjoy all the rights accorded to workers within the European Union under Article 39 of the EC Treaty. In addition, they may also provide their services on a temporary basis under Articles 40 and 59, or they can also establish themselves permanently by invoking Article 43. They can approach the concerned French and Portuguese authorities to examine whether the qualifying examination they have passed in their own country is equivalent to those in France and Portugal and if it is, they cannot be discriminated against under other criteria. The determination about the professional adequacy of the qualification they possess will rest with the professional authorities in France and Portugal, however any discriminatory legislative measure can be contested. And (b) Directive 2004/38 governs the rights to entry and residence for EU nationals, especially for the right to work within the territory of the Member states, therefore the rights of the Spanish nationals to entry and residence which is being denied by the French authorities can be legitimately challenged under those provisions. For instance, in the Vander Elst case it as stated that “nationals of the Member States of the Community have the right to enter the territory of the other member States in the exercise of the various freedoms recognized by the Treaty and in particular the freedom to provide services..”13 The right to enter the territory of the Member State is allowed for both providers of services and recipients of services, as set out in judgments in the cases of Cowan v Tresor Public14 and in the case of Commission v Netherlands15. Article 5 of Directive 2004/38 governs the entry of individuals and the question of entry formalities such as visa was addressed in the case of Wisjenbeek16 and found to be unnecessary in the case of EU nationals of one Member State entering another Member State. It is likely that the four Spanish nationals will be required to have in their possession a valid passport, which will also serve to establish their identity. However, the requirement for an additional document of authorization such as a visa will not be compatible with EU law. For example, in the case of Commission v Belgium, the requirement by the Belgian Government requiring additional identity documents issued by the Belgian Minister of the Interior was deemed to be disproportionate to the requirements of establishing the identity of the service providers who were entering Belgium. The same principle could also be extended in this case to the requirement for a visa from Spanish nationals. Since Directive 2004/38 specifically establishes the rights to entry and residence, the requirement for an additional Visa cannot be justified and could be found to be incompatible with EU law. Similarly the claim of the French Government that they have no rights to residence can also be contested, since Article 6 of the same Directive establishes the right to residence. This right of residence cannot be lost, as was established in the cases of Antonissen17 and R v Pieck,18 both of which established the fact that residence within the EU cannot be lost. Therefore these Spanish nationals not only have the right to entry but they also have the rights to residence. In the case of Commission v France, it was established that a firm set up to provide temporary services cannot take on the kinds of activities that would constitute the provision of permanent services.19 Therefore, there is a distinction that can be made between the provision of services temporarily and establishment on a more permanent basis. It is possible that in the context of establishment of their services on a permanent and continuous basis, the Spanish nationals may have to conform to other rules laid down by the French authorities in the conduct of their business, however they can freely provide their services on a temporary basis without their right to residence being challenged20. In the case of the requirement by the Portuguese authorities for attendance at training seminars, the important aspect that must be considered is whether this constitutes discriminatory practice against the Spanish nationals as compared to the Portuguese nationals. For instance in the case of Debauve, the issue of national rules in terms of transmitting advertisements was raised and such rules were not deemed to be discriminatory or arbitrary “if those rules are applied without distinction as regards…..origin….nationality of the person providing the service or the place where he is established.”21 Thus, the rule established by the Portuguese Government requiring attendance at seminars may not necessarily be incompatible with EU law. It is only when such rules by the Government of a particular Member State are not uniformly applied to all applicants, irrespective of their nationality, that they can be contested on grounds of incompatibility with EU law. Therefore, the question that arises in this case is: is the requirement for attendance at seminars discriminatory to the Spanish nationals in any way? The cases of Coenen23 and Van Binsbergen24 have clearly established that a mandatory requirement that is imposed by the Government of a Member State upon a person who does not normally live in that country can be deemed to be restrictive and incompatible with EU law if the same criterion is applied only to the foreign nationals and not to the locals. Therefore, if all veterinarians within Portugal are also required to attends such seminars every six months to keep themselves up to date, then this will not constitute a discriminatory practice which could be incompatible with EU law. Another aspect that must be taken into consideration is that because the Spanish nationals are fully qualified to practice in their own country, any authorization procedure required by the Portuguese Government “should not in particular be dependent upon the payment of excessive administration fees.”25 Since they are fully qualified vets under Spanish law, if Portugal has equivalent vocational examinations which nationals of their own countries must pass to be certified to practice, it would be unreasonable for the Portuguese authorities to deny them the freedom to establish themselves in their countries on the basis of contrary national legislation requiring additional testing through attendance at seminars.26 On the basis of the above, it may therefore be stated that the requirements of the French Government for a Visa from the Spanish nationals would be incompatible with the free movement of persons (Article 39) and EU Directives as laid out above. Similarly, the right to residence cannot be challenged by the French Government. However, in the case of the requirement by the Portuguese Government, it is possible that such a requirement will not be deemed incompatible with EU law, if it is applied on a uniform basis to all applicants, irrespective of their nationality and that a separate set of rules does not exist for nationals of other Member States. Bibliography Book: * Green, Nicholas, Hartley, Trevor C and Usher, John A, 1991. "The Legal Foundations of the Single European Market". Oxford University Press Cases: * Case C-20/92 Hubbard (1993) ECR I-3777 at 13 * Case 62/96 Commission v Greece (1997) ECR I-6726 at 23. * Case 55/94 Gebhard (1995) ECR I-4165 at 23 * Case 70/95 Sodemare (1997) ECR I-3395 at 26. * Case C-384/93 Alpine Investments (1995) ECR I-1141 at 21. * Case C-55/98 Vestergaard (1999) ECR I-7649 at 19 * Case 115/78 Knoors (1979) ECR 399 at 24 and * Case 61/89 Bouchoucha (1990) ECR I-3551 at para 13 * Case C-71/76 Thieffry (1997) ECR 765 at 27 * Case C-159/90 Grogan (1991) ECR I-4685 at 17 * Case 107/83 Ordre des Avocats du Barreau de Paris v Kloop (1984) ECR 2971 para 19; * Case C-143/87 Stanton (1988) ECR I-3351 at 11 * Case 131/85 Gul {1986] ECR 1573 * Case 397/87 Groener [ 1989] ECR 3967 * Case C-281/98 Angonese [2000] ECR I-4139 * Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153 (at paragraph 11) * Case C-43/93 Vander Elst (1994) ECR I-3803 at 13 * Case 186/87 Cowan v Tresor Public (1989) ECR 195 * Case C-68/89 Commission v Netherlands (1991) ECR I-2637 at para 10 * Case C-378/97 Wijsenbeek [1999] ECR I-6207 * Case C-292/89 Antonissen {1991] ECR I-745 * Case 157/79 R v Pieck [1980] ECR 2171 * Case C-294/89 Commission v France (1991) ECR I-3591 * Case C-70/95 Sodemare (1997) ECR I-3395 at 40 * Case C-52/79 Debauve (1980) ECR 833 at 16 * Case C-39/75 Coenen (1975) ECR 1547 at 6 * Case C-33/74 Van Binsbergen (1974) ECR 1299 at 10 * Case 19/92 – Kraus (1993) ECR I-1663 at 39 Read More