consolidation and codification: re-shaping the internal market
Post on 11-Jan-2016
222 Views
Preview:
TRANSCRIPT
Consolidation and Codification:Re-shaping the Internal Market
2Sigmar Stadlmeier
An introduction
In my opinion, a Community national who goes to another Member State as
a worker or self-employed person under Articles 48, 52 or 59 of the Treaty is
entitled not just to pursue his trade or profession and to enjoy the same
living and working conditions as nationals of the host State; he is in addition
entitled to assume that, wherever he goes to earn his living in the European
Community, he will be treated in accordance with a common code of
fundamental values, in particular those laid down in the European
Convention on Human Rights. In other words, he is entitled to say "civis
europeus sum" and to invoke that status in order to oppose any
violation of his fundamental rights.
AG Sir Francis Jacobs, Opinion in Case 168/91, Konstantinidis, ECR 1993 I-1191,
1213 (No. 46).
3Sigmar Stadlmeier
The Pre-Union phase…
Workers (Art 39)
Self-employed / Established (Art 43)
Providers / Receivers of services (Art 49)
Others???
— Students?
— Pensioners?
— Playboys?
4Sigmar Stadlmeier
Example: Workers Art 39 para 1: Free movement of workers
Art 39 para 2: meaning non-discriminatory treatment
Art 39 para 3: Included rights and limits
— To apply for jobs offered
— Mobility to that end
— Residence and work according to local rules
— Remain after termination of work ( secondary legislation)
— May be restricted on grounds of public policy / security / health
Art 39 para 4: Exclusion of public service
5Sigmar Stadlmeier
Secondary legislation
Reg 1612/68: Details on
— Non-discriminatory treatment with regard to access to jobs
— Non-discriminatory treatment with regard to social benefits, housing, trade unions
— Family and dependent persons: housing, work, education
Reg 68/360: Details on residence and permits
Reg 1251/70: Details on right to stay after termination of work
Dir 64/221: Details on restrictions on grounds of public policy, security or
health
Reg 1408/71: Provisions on Social Security
6Sigmar Stadlmeier
Definition / Clarification needed „worker“? Levin, Kempf, Lawrie-Blum
Formalities for immigration/residence? Pieck, Watson & Belmann
Permit? Constitutive or merely declaratory? Royer, Antonissen
Equal treatment in access to jobs French Merchant Seamen, Teachers
Equal treatment with regard to benefits Marsman, Sotgiu, Ugliola, Cristini
Public policy
— Definition: Bouchereau
— Personal misconduct: Rutili, Bouchereau, Bonsignore
Public service Commission/Belgium 1+2
7Sigmar Stadlmeier
A coherent system:Mobility rights due to economic activity
notion Art Secondary legislation on
Details Residence family; right
to stay
Restrictions
worker 39 R 1612/68 R 68/360 R 1251/70 D 64/221
established 43 (…..) D 73/148 D 75/34 D 64/221
services 49 (…..) D 73/148 n/a D 64/221
8Sigmar Stadlmeier
The Union: Civis Europaeus Sum
Art 17: Union citizenship…
Art 18: … triggers right to move and reside freely within EU
Citizenship, rather than particular economic activity
Subject to limitations and conditions
D 2004/38 replaces nine (!) individual directives
(Almost) coherent mobility regime
Baumbast, Martinez Sala, Grzelczyk, Troiani,
9Sigmar Stadlmeier
The EU mobility regime
notion Basic provision Treaty exception Secondary
legislation
citizen Art 17 + 18 D 2004/38
worker Art 39 Art 39 para 3
established Art 43 Art 46 para 1
services Art 49 Art 55 (Art 46)
10Sigmar Stadlmeier
D 2004/38: Overview
Family members
Status: EU citizens vs third country nationals
Residence and formalities
Permanent residence
Exceptions
Procedure and procedural standards
11Sigmar Stadlmeier
Regulated professions
Established / self-employed (Art 43)
Providers of services (Art 49)
Prerequisites
Access to activity
Pursuit of activity
Exceptions, Limitations, Conditions
Example: Lawyers / Attorneys
Example: Health Practitioners („Heilpraktiker“)
12Sigmar Stadlmeier
Secondary legislation
Sectoral liberalisation and coordination directives
— Sector-wise, e.g. medical professions, Attorneys
Recognition of Diplomas
— University degrees
— Professional qualifications
D 2005/36 on the recognition of professional qualifications
D 2006/123 on services in the internal market
13Sigmar Stadlmeier
Directive on professional qualifications I
Definition of „regulated profession“
Establishment / Provision of services
— (mere) service: country-of-destination principle
— Establishment: country-of-origin principle
Incorporates existing sectoral directives
but not those on attorneys!
General system of recognition of qualifications
14Sigmar Stadlmeier
Directive on professional qualifications II
Provider mobility: No restrictions on mere provision of services, if
— Provider is established as pursuing a regulated profession in the country of origin
— Or has been pursuing a profession which is not a regulated one in the country of
origin for two years
Country-of-destination principle
— „Provider mobility Recipient‘s Rules“= rules applicable where service is
being provided
— Standard proportionality test applies
15Sigmar Stadlmeier
Directive on professional qualifications III
„First Move“ declarations
— Information and/or evidence on qualifications, insurance
— Information for consumers: competent authority, roll or registry etc.
Establishment-based provision of services: Country-of-origin principle
— „Recipient‘s mobility Provider‘s rules“; also applies to mere product
mobility
General recognition of qualifications
— Five steps, from general primary or secondary education to higher university
degrees
16Sigmar Stadlmeier
Services Directive I
Applies to
— services
— establishment-based services
— provider mobility, recipient mobility, product mobility
Does not apply to
— „sensible“ services (health, social services, leasing of personnel)
Subsidiary nature
— other directives/regulations prevail (D 2005/36, R 1408/71, …)
Does not affect MS law
— Criminal law, labour law and industrial relations
17Sigmar Stadlmeier
Services Directive II: Establishment-based
No authorisation scheme, unless
— Non-discriminatory, objective, transparent
— Justified by public interest (standard proportionality test applies!)
— „black list“ (prohibited requirements)
Exceptions for services in the general economic interest
— Territorial restriction, specific legal form of provider (e.g. type of company)
18Sigmar Stadlmeier
Services Directive III: (mere) services
Limited catalogue of grounds in the public interest
— Public policy, security, health
— Environmental protection
Prohibited requirements
Safety / quality standards admissible
Prohibited restrictions on recipients
Services in the general economic interest not covered
19Sigmar Stadlmeier
I may not be able to pull you up,
But I won‘t let you down either…
Thank you for your attention!
top related