Right of Establishment and Freedom to Provide and Receive Services

Adams D (1979).

See recital 5 to the EEA; Case C-452/01 Ospelt and Schlössle Weissenberg [2003] ECR I-9743, paragraph 29; C-431/11 United Kingdom v. Council, published electronically, paragraph 50; Opinion of Advocate General Mengozzi in Case C-83/13 Fonnship and Svenska Transportarbetarförbundet, published electronically, at footnote 54.

Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, pp. 36 to 68).

See Case C-452/04 Fidum Finanz [2006] ECR I-9521, paragraph 32, where it is held that ‘…although in the definition of the notion of ‘services’ laid down in the first paragraph of Article 50 EC it is specified that the services ‘are not governed by the provisions relating to freedom of movement for goods, capital and persons’, that relates to the definition of that notion and does not establish any order of priority between the freedom to provide services and the other fundamental freedoms. The notion of ‘services’ covers services which are not governed by other freedoms, in order to ensure that all economic activity falls within the scope of the fundamental freedoms.’; for the impact of the judgment on application of the free movement of capital to third countries see Van Stiphout (2006), pp. 442–446; Baudenbacher (2006), pp. 398–402; Tobler (2006), pp. 397–401; Hirsbrunner and Seidl (2007), pp. 503–508.

For reasons of simplicity, the corresponding Articles of the EEA Agreement are being used, throughout this chapter, where appropriate.

See Chapter 5 I EEA Main Agreement and secondary law.

See Case E-9/11 ESA v. Norway [2012] EFTA Ct. Rep. 442, paragraph 72.

Case E-3/12 Staten v/Arbeidsdepartementet v. Stig Arne Jonsson [2013] EFTA Ct. Rep. 136, paragraph 57, and case-law cited.

See, in particular, Case E-2/11 STX Offshore [2012] EFTA Ct. Rep. 4, paragraph 34; see also Cases E-9/11 ESA v. Norway, cited above, paragraph 72; Case E-3/12 Jonsson [2013] EFTA Ct. Rep. 136, paragraph 57.

See for example, E-9/11 ESA v. Norway, cited above.

See Case E-4/00 Dr Johann Brändle [2000–2001] EFTA Ct. Rep 123, paragraph 9; C-55/94 Gebhard v. Consiglio dell’Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165, paragraph 20.

See Chalmers et al. (2009), pp. 699 and 700.

Case C-268/99 Jany a. o. v. Staatssecretaris van Justitie [2001] ECR I-8615, paragraph 34.

Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Citizen’s Rights Directive) (OJ 2004 L 158, pp. 77–123).

Incorporated into Annex V to the EEA at point 1 and Annex VIII at point 3 by JCD No 158/2007 (‘the Decision’) (OJ 2008 L 124, p. 20, and EEA Supplement 2008 No 26, p. 17). The Decision entered into force on 1 March 2009.

See Case E-26/13 Íslenska ríkið v. Atli Gunnarsson [2014] EFTA Ct. Rep. 254, paragraphs 80 and 81.

See Tobler and Beglinger (2010), Chapter 20, p. 177. Chart 8/62.

Case E-10/04 Paolo Piazza v. Paul Schurte AG [2005] EFTA Ct. Rep. 76.

See also Case E-9/11 ESA v. Norway, cited above, paragraphs 79 to 82.

See Case 155/73 Sacchi [1974] 409, paragraphs 6 et seq.

See Case C-108/09 Ker-Optika [2010] ECR I-12213; C-275/92 Schindler [1994] ECR I-1039, paragraph 30.

See, in particular, Article 1(1) EEA read in conjunction with 1(2) EEA; see also the principle of loyalty in Article 3 EEA; conform interpretation Article 6 EEA; as regards secondary EU law contained in the Annexes or in decisions of the Joint Committee see Article 7 EEA; homogeneous interpretation in Article 105 EEA.

See, inter alia, Case E-3/98 Rainford-Towning [1998] EFTA Ct. Rep. 205, paragraph 17.

See Sect. 2.4.

See Sect. 2.5.

As regards the new procedures for EU acts to become part of the EEA, see Decision of the Standing Committee of the EFTA States No 1/2014/SC of 8 May 2014 on procedures for the incorporation of EU acts into the EEA Agreement and repealing Decision No 1/2012/SC of 30 April 2012.

Text added to Annex VIII by Decision No 191/1999 (OJ 2001 L 74, p. 29 and EEA Supplement 2001 No 14, p. 130 (Norwegian) and p. 217 (Icelandic)), e.i.f. 1 June 2000, and subsequently replaced by the 2004 EEA Enlargement Agreement (OJ 2004 L 130, p. 3 and EEA Supplement 2004 No 23, p. 1), e.i.f. 1 May 2004.

Frommelt (2012), pp. 62 et seq. (last visited on 9 June 2015).

See Sectoral Adaptations I–VI and VIII to Annex VIII.

Citizen’s Rights Directive, cited above.

Case E-26/13 Íslenska ríkið v. Atli Gunnarsson, cited above, paragraph 79.

See, in that respect, Recital 8, Article 1 of JCD No 158/2007 of 7 December 2007 (OJ 2008 L 124 p. 20 and EEA supplement 2008 No 26, p. 17) and the Joint Declaration by the Contracting Parties to that Decision.

Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, pp. 36–68).

Annex X makes reference to Directive 2006/123/EC in point 1. For a comprehensive overview on Chapter III, see Barnard (2013), pp. 357 et seq.

See Article 9 of Directive 2006/123/EC.

See Article 10 of Directive 2006/123/EC.

See Article 14 of Directive 2006/123/EC.

See Article 15 (2) of Directive 2006/123/EC.

See point 19a of Annex IX to the EEA.

See Case E-16/11 ESA v. Iceland [2013] EFTA Ct. Rep. 4, paragraphs 125 to 126 and Chapter 5.12 for further analysis of this judgment.

For financial services see Chapter XII.

See http://​ec.​europa.​eu/​prelex/​detail_​dossier_​real.​cfm?​CL=​en&​DosId=​188810 (last visited on 9 June 2015).

See e.g. Barnard (2013), pp. 425 and 426.

See for a critical overview on the Directive Barnard (2013), pp. 425 and 426.

Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services (OJ 2008 L 52, pp. 3–20).

Joined Cases E-8/94 and E-9/94 Forbrukerombudet v. Mattel Scandinavia A/S and Lego Norge A/S [1994–1995] EFTA Ct. Rep 113; Case E-8/97 TV 1000 Sverige AB v. The Norwegian Government represented by the Royal Ministry of Cultural Affairs [1998] EFTA Ct. Rep. 68; see also Baudenbacher (2008a), p. 99.

Case E-7/13 Creditinfo Lánstraust hf. v. þjóðskrá ĺslands og íslenska ríkið [2013] EFTA Ct. Rep. 970; see also GRUR Int 5/2014, Berechnung von Gebühren für die Weiterverwendung von Informationen des öffentlichen Sektors—Creditinfo Lánstraust/Registers Iceland and the Icelandic State, page 504.

Case E-4/09 Inconsult Anstalt v. Finanzmarktaufsicht [2009–2010] EFTA Ct. Rep. 86.

OJ 1997 L 18, pp. 1–6.

See Case C-319/06 Commission v. Luxembourg [2008] ECR I-4323; Case C-341/05 Laval [2007] ECR I-11767; STX Offshore, cited above; Opinion of Advocate General Wahl in Case C-396/13 Sähköalojen ammattiliitto, published electronically.

Barnard (2014), p. 21; see for a general assessment of the STX-Saga Baudenbacher (2013), pp. 515–534 and Bårdsen (2013), pp. 535–546; the discrepancy between the Supreme Court’s decision and the EEA Court’s case-law can also be seen from AG Wahl’s Opinion in Case C-396/13 Sähköalojen ammattiliitto, published electronically.

Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, pp. 22–142).

Academic titles are not part of the recognition system provided under the Directive. The NARIC network shall support academic recognition of diplomas and periods of study in the EEA and EFTA States as well as the candidate countries.

For professional qualifications issued by a third country, see Article 3(3) of Directive 2005/36/EC.

Article 5(1)(a) of Directive 2005/36/EC.

See Article 5(1)(b) of Directive 2005/36/EC.

Article 5(2) of Directive 2005/36/EC.

See Chapter I of Directive 2005/36/EC; for a more detailed explanation see e.g. Barnard (2013), pp. 320–322.

Chapter II of Directive 2005/36/EC.

See Annex VII to the EEA.

Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of the freedom to provide services (OJ 1977 L 78, pp. 17 and 18); Case E-6/13 Metacom AG v. Rechtsanwälte Zipper & Collegen [2013] EFTA Ct. Rep. 856, paragraphs 35 to 37; see also, including an assessment of the legal situation in Austria, Schumacher (2014), pp. 524–528.

Case C-340/89 Vlassopoulou v. Ministerium für Justiz, Bundes- u. Europaangelegenheiten Baden-Württemberg [1991] ECR I-2357, paragraphs 15 et seq.

Ibid, paragraphs 19 et seq., and case-law cited; as regards qualifications obtained in third countries, see Barnard (2013), p. 326.

As is stated in Norberg, ‘[…] since Article 28(4) EEA and Article 32 EEA pursue the same aim, the case-law on the former Article may also be relevant for the interpretation of the latter’, EEA Law, p. 436 (Norberg et al. 1993).

See for example, Case 147/86 Commission v. Greece [1988] ECR 1637, paragraph 7.

See Case 2/74 Reyners [1974] ECR 631, paragraph 45; and Case C-42/92 Thijssen [1993] ECR I-4047, paragraph 8.

Joined Cases E-3/13 and E-20/13 Fred. Olsen and Others v. the Norwegian State [2014] EFTA Ct. Rep. 400, paragraph 94, and case-law cited.

See, as regards the cross border character of an activity, for example: Case C-134/95 USSL [1997] ECR I-195, paragraph 19; Case C-71/76 Thieffry [1997] ECR 765, paragraph 27; and Joined Cases C-54/88, C-91/88 and C-14/89 Eleonora Nino & others [1990] ECR 3537, paragraph 11.

Ibid., paragraph 25, and case-law cited; Sokoll-Seebacher, cited above, paragraph 10.

Venturini, cited above, paragraph 28 and Sokoll-Seebacher, cited above, paragraph 12.

That requirement is a clone of Article 52 EEC [Article 49 TFEU].

Olsen, cited above, paragraph 93; E-15/11 Arcade Drilling AS v. Staten v/Skatt Vest [2012] EFTA Ct. Rep 676, paragraphs 35 to 47.

See for example Case C-264/96 Imperial Chemical Industries v. Colmer [1998] ECR I-4695, paragraph 20.

Barnard (2013), Sections 10 B and C, pp. 304 et seq.

Articles 35, 30 EEA; for further details as regards the mutual recognition of diplomas see Sect. 2.4 above.

See, in particular, Case 48/75 Royer [1976] ECR 497, paragraph 31; consequently, neither can the registration of a national of another Member State of the Community with a social security scheme established by the legislation of the host State be imposed as a pre-condition to the exercise of the right of residence, nor can non-compliance with national provisions on registration with a social security scheme justify a deportation order, see Case C-363/89 Roux [1991] ECR I-273, paragraphs 10 and 11.

See Case E-1/09 ESA v. Liechtenstein [2009–2010] EFTA Ct. Rep. 46, paragraph 27.

Rainford-Towning, cited above, paragraph 30; and Case E-2/01 Dr. Pucher [2002] EFTA Ct. Rep. 4, paragraphs 20 to 24; E-8/04 ESA v. Liechtenstein [2005] EFTA Ct. Rep. 46, paragraphs 17 to 21.

See JCD No 158/2007 and the Joint Declaration of the Contracting Parties to that Decision.

Citizen’s Rights Directive, cited above.

The text of point 3 (Council Directive 73/148/EEC) had been replaced by Decision No 158/2007 (OJ 2008 L 124, p. 20 and EEA Supplement 2008 No 26, p. 17), e.i.f. 1.3.2009.

Tobler and Beglinger (2010), Chapter 8, p. 175.

With regard to primary establishment, see http://​ec.​europa.​eu/​internal_​market/​services/​docs/​infringements/​art43_​en.​pdf; with regard to secondary establishment, see, inter alia, Case C-106/91 Ramrath v. Ministre de la Justice [1992] ECR I-3351, paragraph 20, and Case C-351/90 Commission v. Luxembourg [1992] ECR I-3945, paragraph 11.

Case 205/84 Commission v. Germany [1986] ECR 3755, paragraph 21.

‘Wherever I Lay My Hat (That’s My Home)’ is a song written by Marvin Gaye, Barrett Strong and Norman Whitfield, and first recorded by Gaye in 1962. It was the B Side to his 1969 hit ‘Too Busy Thinking ‘Bout My Baby’. Years later, Paul Young’s version of the song was a UK No. 1 single for 3 weeks in July 1983.

Opinion of Advocate General Maduro in Case C-210/06 Cartesio [2008] ECR I-9641; it appears as if Advocate General Tizzano undertook a similar attempt in Sevic, see his Opinion of 7 July 2005 [2005] ECR I-10805, point 45.

See, for example, Frada de Sousa (2009), pp. 38 et seq.

See as regards the effect of Überseering in the EEA Baudenbacher and Buschle (2004), pp. 26–31.

Arcade Drilling, cited above, paragraph 63; see also Case C-470/04 N [2006] ECR I-7409, paragraph 28.

See Case C-101/94 Commission v. Italy [1996] ECR I-2691, paragraph 31.

Frada de Sousa (2009), pp. 23 et seq.

Centros, cited above; see also Baudenbacher (2008), pp. 205–218; Behrens (2001), pp. 78–83.

See ibid for further assessment of the praise and criticism on that case-law, pp. 18 et seq.

See e.g. Case E-6/00 Dr Jürgen Tschanett [2000–2001] EFTA Ct. Rep 203, paragraph 17; and with further reference to ECJ case-law, Case E-14/12 ESA v. Liechtenstein [2013] EFTA Ct. Rep. 256, paragraph 28.

See Case E-7/07 Seabrokers AS and The Norwegian State, represented by Skattedirektoratet (the Directorate of Taxes) [2008] EFTA Ct. Rep. 172, paragraph 28, and case-law cited; see also Arcade Drilling, cited above, paragraph 59, and the case-law cited.

See Case C-270/83 Commission v. France [1986] ECR 273, paragraph 21.

Gebhard, cited above, paragraph 37, see also Case C-19/92 Kraus [1993] ECR I-1663.

See Case E-2/06 ESA v. Norway [2007] EFTA Ct. Rep. 164, paragraph 64, with reference to Gebhard, cited above, paragraph 37.

See Case C-565/08 Commission v. Italy [2011] ECR I-2101, paragraphs 49 and 50. As regards the introduction of an economic analysis in the market access test, see Barnard (2013), pp. 310 and 311.

Case C-565/08 Commission v. Italy, cited above, paragraph 49, and case-law cited.

See Case C-435/04 Innoventif [2006] ECR I-4929; Olsen, cited above, paragraph 137; Case E-1/04 Fokus Bank ASA v. The Norwegian State [2004] EFTA Ct. Rep 11, paragraphs 26 and 37.

For a comprehensive overview see for example Barnard (2013), p. 370; Holoubek (2012), paragraph 21; see as regards the ‘special’ nature of a service e.g. Case 279/80 Webb [1981] ECR 3305, paragraph 10 and Case C-158/96 Kohl v. Union des Caisses de Maladie [1998] ECR I-1931 paragraphs 20 and 21.

See Case E-5/07 Private Barnehagers Landsforbund v. ESA [2008] EFTA Ct. Rep. 62, paragraph 81.

See Case C-159/90 Grogan [1991] ECR I-4685; for an overview of the discussion see, for example, Barnard (2013), pp. 371 and 372.

See Case C-76/05 Gootjes-Schwarz v. Finanzamt Bergisch-Gladbach [2007] ECR I-6849.

See for example, Case C-109/92 Wirth [1993] ECR I-6447, paragraph 15. As regards the application of the general prohibition of discrimination on grounds of nationality, i.e. Article 4 EEA, see Case C-147/03 Commission v. Austria [2005] ECR I-5996.

See for example, Joined cases C-136/07, C-358/07, C-359/07, C-360/07, C-409/07 and C-410/07 Markus Stoss and Others v. Land Baden-Württemberg [2010] ECR I-8069; Case C-355/98 Commission v. Belgium, paragraphs 39 and 40; E-14/12 ESA v. Liechtenstein, cited above, paragraph 36.

See for barriers imposed by the state of establishment for instance, C-168/04 Commission v. Austria, [2006] I-9041, paragraph 68; Case C-60/00 Carpenter [2002] ECR I-6279; Case C-384/93 Alpine Investment [1995] ECR I-1141, paragraphs 30 and 31.

Case 186/87 Cowan v. Trésor Public [1989] ECR 195.

For the EFTA pillar see Joined Cases E-11/07 and E-1/08 Olga Rindal and Therese Slinning v. Staten v/Dispensasjons - og klagenemnda for bidrag til behandling i utlandet [2008] EFTA Ct. Rep. 320.

See e.g. Alpine Investments, cited above; Case C-352/85 Bond van Adverteeders and others v. Netherlands [1988] ECR 2005.

See Holoubek (2012), paragraph 73.

Or entitities situated in the EEA and fulfilling the 34 EEA criteria.

Case 39/75 Coen v. Social-Economische Raad [1975] ECR 1547.

See, in that regard, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, referred to at point 30 of Annex XVIII to the EEA as adapted to the EEA by Protocol 1 thereto; Case C-113/89 Rush Portuguesa v. Office national d’immigration [1990] ECR I-1417, paragraph 38.

Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries.

Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services (OJ 1973 L 172, pp. 14–16).

Text of point 3 (Council Directive 73/148/EEC) replaced by Decision No 158/2007 (OJ 2008 L 124, p. 20 and EEA Supplement 2008 No 26, p. 17), e.i.f. 1.3.2009.

See STX Offshore, cited above, paragraph 76, and case-law cited; Säger, cited above, paragraph 13; as regards the exemption the home-State principle and its limitations as regards the posting of workers, see STX Offshore, cited above, paragraphs 29 and 30.

See for example, Case E-3/06 Ladbrokes Ltd. v. The Government of Norway, Ministry of Culture and Church Affairs and Ministry of Agriculture and FoodLadbrokes [2007] EFTA Ct. Rep. 86; see for a comprehensive overview on the novelties in the area of gambling Baudenbacher (2014), paragraphs 94 and 95.

As regards the development in the area of goods and the introduction of an alternative to the Keck-rule, see Lenaerts (2014), pp. 371–387.

See e.g. Opinion of Advocate General Cosmas in Case C-58/98 Corsten, footnote 22, and case-law cited; Baudenbacher (2014), paragraph 75.

See e.g. STX Offshore, cited above, paragraph 75. For the EU, see Alpine and Schindler, cited above.

See Paolo Piazza, cited above, paragraph 51; see also Case E-1/03 ESA v. Iceland [2003] EFTA Ct. Rep. 143.

Case E-1/03 ESA v. Iceland, cited above.

See as an example for direct discrimination with respect to social advantages Cowan, cited above; also with respect to tourists as service recipients Case C-45/93 Commission v. Spain [1994] ECR I-911; as regards the co-existing approaches (discrimination model versus restriction model) with respect to taxation cases compare e.g. Joined Cases C-430/99 and C-431/99 Sea-Land Service and Nedlloyd Lijnen [2002] ECR I-5235; Case C-134/03 Viacom Outdoor [2005] ECR I-1167.

See in particular Joined Cases 286/82 and 26/83 Luisi Carbone v. Ministero del Tesoro [1984] ECR 377.

Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare (OJ 2011 L 88, pp. 45–65) as incorporated into the EEA Agreement by JCD No 153/2014 (OJ 2015 L 15/78), e.i.f. pending.

For services that Article has to be read in conjunction with Article 39 EEA. See for instance, Granville, cited above, paragraph 49, and case-law cited; E-14/12 ESA v. Liechtenstein, cited above, paragraph 37.

By the application of a restriction-based approach, the distinction between indirectly discriminatory and restrictive measures has lost of its importance. However, there are still recent examples in the case-law of the EEA Courts where this distinction was made, see e.g. E-14/12 ESA v. Liechtenstein, cited above, paragraph 30.

See with reference to Kohll, cited above, Case E-4/00 Dr Johann Brändle, cited above, paragraph 34.

See Case E-1/94 Restamark [1994–1995] EFTA Ct. Rep. 15, paragraph 60; and Case E-1/03 ESA v. Iceland, cited above, paragraphs 34 and 35.

Whereby not having any impact on the substance matter of proportionality, in some cases the proportionality test is displayed as a threefold test, according to which the legitimate objective needs to be suitable, necessary and proportionate as means to attain those objectives. See, for example, Case E-1/09 ESA v. Liechtenstein, cited above, paragraph 38.

See Case E-9/11 ESA v. Norway, cited above, paragraph 83; Joined Cases C-570/07 and C-571/07 Blanco Perez [2010] ECR I-4629, paragraph 61.

As regards the free movement of services, see for a comprehensive overview Barnard (2013), Section 2.4, p. 401.

See in particular as regards the discussion on whether the concept of abuse of law might evolve into a general principle LM Baudenbacher (2012), pp. 2–8; LM Baudenbacher (2008), pp. 205–218.

Olsen, cited above, paragraph 166 with reference to Cadbury Schweppes and Cadbury Schweppes Overseas, cited above, paragraph 49.

See Sect. 5, above.

See in particular Article 1(2) EEA read in connection with Article 1(1) EEA; for the goals of homogeneous interpretation see Baudenbacher (2008b), pp. 22–31.

See Case E-10/14 Enes Deveci a.o. v. Scandinavian Airlines System Denmark-Norway-Sweden [2014] EFTA Ct. Rep. 1364, paragraph 64.