Chapter 12 Guidance on answering assessment questions

Free movement of persons

James owns a successful patisserie in Paris, France renowned for authentic French pastries. The business has been successful over a number of years and he is keen to capitalise on the recent baking trend in the UK. James has identified suitable premises in Oxford, England where he can expand and establish a new patisserie, recruiting skilled local staff to work as pastry chefs. However, James is unfamiliar with UK leasehold arrangements and contacted the fictitious UK Food Manufacturers Association who advertise free advice on such matters. When James received a letter from the Association informing him he was ineligible for free advice as he was not a UK national, he began to wonder about his rights.

Advise James on his rights under EU law in relation to all aspects of this scenario.

Introduction setting out the principles of freedom of establishment and freedom to provide services within the context of the internal market – Article 26 TFEU.

Set out freedom of establishment and freedom to provide services, explaining in what circumstances the relevant rights are applicable with application to the facts.

Consideration of both freedom of establishment and freedom to provide services to determine appropriate rights.

Freedom of establishment includes the rights of individuals and companies to pursue activities in another Member State, for instance setting up and managing a business or practising a profession, on a permanent basis. Where a person is established in one state and provides services into another, this constitutes the provision of services.

Application – James is pursuing activities in another Member State in setting up a business on a permanent basis. This would be a secondary establishment as he is already established in France.

Consideration of the meaning of establishment – broad concept Gebhard. Instant case would appear to involve securing of a permanent presence. Reference to and application of Gambelli and Stauffer – permanent presence.

Consideration of whether a natural or legal person (Article 54 TFEU) – Suggested on facts that this is a legal person as a company (Segers).

Then look at the content of the rights. Key aspect here is that of a breach of the principle of non-discrimination – Article 18 TFEU and Article 49 TFEU. Consider direct and indirect discrimination and apply. Here, direct discrimination (RBS).

Includes the right to pursue activity ‘under the conditions laid down for its own nationals by the law of the country where such establishment is effected’.

Applied to the facts – appears to be clear discrimination on grounds of nationality.

Any potential derogation – may be considered but nothing raised on facts.

Consider whether rights capable of being enforced in national courts – Direct effect of Articles 49 and 56 TFEU confirmed in Reyners and Van Binsbergen.