Case Säger

 

Identified should be:

● The parties of the case

● The subject of the case - is the case Säger about services or establishment?

● The structure of Free Movement cases:

-Element of EU law

 
-Does the case fall under EU free movement law?

-Which free movement rights are restricted?

-Is the restriction distinctive or indistinctive / discriminatory or non-discriminatory?

-Is the restriction justified? (Under treaty-based / under case law based derogations?)

-Is the restriction necessary in a democratic society?

-Is the restriction proportionate?

● What did the ECJ decide?

 

Please note:

In paragraph 15, the ECJ explains:

15. Having regard to the particular characteristics of certain provisions of services, specific requirements imposed on the provider, which result from the application of rules governing those types of activities, cannot be regarded as incompatible with the Treaty. However, as a fundamental principle of the Treaty, the freedom to provide services may be limited only by rules which are justified by imperative reasons relating to the public interest and which apply to all persons or undertakings pursuing an activity in the State of destination, in so far as that interest is not protected by the rules to which the person providing the services is subject in the Member State in which he is established. In particular, those requirements must be objectively necessary in order to ensure compliance with professional rules and to guarantee the protection of the recipient of services and they must not exceed what is necessary to attain those objectives (see, most recently, the judgments in Cases C-154/89 Commission v France [1991] ECR I-659, C-180/89 Commission v Italy [1991] ECR I-709 and C-198/89 Commission v Greece [1991] ECR I-727.

Eeckhout considers this approach being identical to the approach of the ECJ under establishment and goods and workers. First, the ECJ has examined whether there is a restriction, thereafter whether the restriction is justified. Discriminatory measures can only be justified on grounds expressly provided by the Treaty, whereas non-discriminatory measures can a l s o be justified by overriding reasons relating to the public interest.

(The following materials have been used for case law analysis: Piet Eeckhout, Freedom of Establishment and Services. Module 4. Teaching Material (2005/2006 EU Law, King's College London, Centre of European Law); Imola Streho, Regulating Services after the Services Directive. Advanced European Union Legal Practice. Reader - Teaching Material (Total Law CEU Sun, Department of Legal Studies, 2010)).

 

 

 

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