EU provisions on freedom of establishment provide unconditional rights that apply only to individuals.

Critically assess the accuracy of this statement, with reference to relevant cases.

 

Answers should look at where the principle fits in within the four fundamental freedoms - Article 26 TFEU.

Answers should include an explanation of principle of freedom of establishment setting out that it comprises the right for EU citizens and companies to establish themselves in in any Member State for a commercial purpose and, when they are already established in a Member State, to set up secondary establishments in another Member State.  Reference needed to Article 49 TFEU.

The principle of freedom of establishment should also be set within the context of freedom to provide services, explaining the differences between them.  However, the focus should be upon establishment.

There are two aspects in the question that need addressing – whether the rights are unconditional and whether they apply only to individuals.  There is no prescribed way to address this but looking at what the rights are, to whom they apply and then whether there are any derogations provides one structured approach.

The meaning of establishment should be set out with reference to Gebhard and Stauffer.

It is then appropriate to set out relevant rights applicable - entry and residence, freedom from discrimination, rules of professional conduct (Gebhard), professional qualifications (Thieffry).

Answers should pick up on the essence of the question, that is, whether the relevant associated rights apply only to individuals.  In this regard, consideration is needed as to the beneficiaries of rights.

Discussion of natural persons (individuals) – Jany.

Discussion of legal persons (companies for example) - Segers, Centros.

Consideration is then needed as regards the second aspect with an explanation of the derogations – official authority (Reyners), public policy (Omega), public security and public health (Gourmet International).

Conclusion setting out to what extent it is agreed that rights apply only to individuals (they do not) and whether they are unconditional (they are not).