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 notionArtSecondary legislation on DetailsResidence family; right to stay Restrictions worker39R 1612/68R 68/360R 1251/70D 64/221 established43(…..)D 73/148D 75/34D 64/221 services49(…..)D 73/148n/aD 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 notionBasic provisionTreaty exception Secondary legislation citizenArt D 2004/38 workerArt 39Art 39 para 3 establishedArt 43Art 46 para 1 servicesArt 49Art 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!