European integration was always conveyed by economic motives. The European Coal and Steel Community, the European Economic Community, and the European Union (EU) were founded by economic interests. Since the European Union is a sui generis organisation and is also founded by the law, those economic interests needed to be formalized. Therefore, four freedoms for guarantee the single market were designed. The freedom of movement of goods, capitals, persons and the freedom of establishment are those four freedoms. Nowadays, those freedoms are the foundations of EU law, and they are in the Treaty of Lisbon, in the Charter of Fundamental Rights or the jurisprudence of the European Union Court of Justice (EUCJ).
But how should we define the freedom of establishment? Catherine Barnard encapsulates the freedom of establishment in the EU context as “the right to take or to pursuit activities in another member State without discrimination ”. This definition highlights how the freedom of establishment is fundamental for completing the internal market. In the Treaty of Lisbon, several articles are about the freedom of establishment in the TFUE – Title IV “Freedom of persons, services and capitals” – Chapter 2 “the freedom of establishment” (articles 49-55).
This illustrates how the right to pursuit activities in another member State is totally integrated in EU law, politics and policies. It concerns the free movement of services, the free movement of workers, companies and individuals. From an economic perspective, services are fundamental into the EU market. Indeed, services represent almost at the EU 80% of the working population. Completing the internal market is not only a matter of goods or capitals; it is also matter of “human capital”, services and workers.
[...] Their profession is of course debatable for some member States where prostitution is strictly forbidden. Opening national borders for services Jani Rgihts to departure, entry and residence. Member states for workers due to EU legislation on services have to erase any restrictions on the movement and residence nationals. Therefore, workers can establish themselves as self-employed in another States, they can provide and receive services in another member States. Citizens' rights directive 2004/38 Derogations of article 46 exist like holding licence, having certain qualifications. [...]
[...] Indeed, the Court does not have enough political leadership to achieve the aim of the free establishment, but since the EUCJ is not a genuine constitutional supreme court, this lack of true political leadership is normal. Another hurdle to understand fully the Court's concerning the freedom of establishment is the difference between companies and individuals. Bibliography BARNARD Catherine (2010), The substantive law of the EU The Four Freedoms (3rd edition), Oxford University Press FOSTER Nigel (2012), EU Treaties and Legislation 2012-2013, Oxford University Press SUPIOT Alain (2010), La declaration de Philadelphie BARNARD Catherine (2010), The substantive law of the EU The Four Freedoms (3rd edition), Oxford University Press, page 295 Jany and others v. [...]
[...] Indeed, finding the right regulator for the freedom of establishment between EU and nationals competences is not obvious. Which regulator can act properly (due to subsidiarity principle) while the EU level is about economic activities and the member States still has some sovereignty to monitor the free movement of workers and persons. In order to encapsulate the complexity of the freedom of establishment under EU law we need at first to study deeply this notion under the current legislation. Then, we should divide this essay into two main dynamics. [...]
[...] Can English being considered as French or a German lawyer even if, the legal system between Common and civil law are very different? Traditions, procedures, the decision-making are not the same and some equivalences. But those equivalences need time and patience. For instance, still a few French law students studied the Common law system and procedures and this is probably the same for English students and the French administrative law. Those statements can be attached to the Court's judgement Case 292/86 Gullung (1989). The French bar, established indirect discrimination disposition for being a lawyer in France. [...]
[...] Company law is very important for the EU Economic development Fluidity of the capital Completing the internal market by creating agencies in other member States The Factorame case was very important as well on the legal and at the political level. Concerned the Common fisheries policy where member States developed antagonists' views concerning the national fishing quotas. UK The Centros case is a milestone Viking Laval However, the approach of a broad freedom of establishment highlights how incomplete is the internal market. Margin of appreciation is mandatory for any supranational Court. Indeed, the Court has to respect national sovereignty. The limit of the EUCJ might be also in the corner of the blurred EU social policy. [...]
APA Style reference
For your bibliographyOnline reading
with our online readerContent validated
by our reading committee
