Workers, Establishment, and Services in the

This book examines the law relating to the free movement of persons and services. It offers a modern exposition of the law in the context of the convergence of the case law on goods, persons and services, and the emerging case law on the rights which flow from citizenship of the European Union.

Robin C. A. White is Professor of Law at the University of Leicester. He is a solicitor and sits as a Deputy Social Security Commissioner.

Table of Cases

xv

Table of Legislation

xlvii

Abbreviations

lxiii

Part 1---Introduction

Setting the scene

3

(20)

The context

3

(2)

Free movement of persons

5

(1)

Title IV of the EC Treaty

6

(2)

The Schengen Arrangements

8

(2)

The European Economic Area Agreement

10

(1)

The position of Switzerland

11

(1)

Other association agreements

12

(6)

Enlargement

18

(2)

Comment

20

(3)

Part 2---The General Part

Entitlement

23

(26)

Introduction

23

(1)

Territorial scope

23

(5)

Personal scope

28

(4)

Material scope

32

(10)

Using Community rules against the Member State of nationality

42

(4)

Third country nationals

46

(2)

Concluding comment

48

(1)

The prohibition of discrimination

49

(12)

Introduction

49

(1)

The prohibition of discrimination on grounds of nationality

50

(7)

Objective justification

57

(1)

Reverse discrimination

58

(1)

The limitations of national treatment

58

(1)

Non-discriminatory obstacles

59

(2)

Recognition of qualifications

61

(17)

Introduction

61

(1)

Regulation 1612/68

62

(2)

Sectoral directives

64

(1)

Moving to a horizontal approach

65

(1)

The first general system directive

66

(5)

The second general system directive

71

(1)

The third general system directive

72

(2)

Case law entitlements

74

(3)

Concluding comment

77

(1)

Exceptions

78

(24)

Introduction

78

(1)

Employment in the public service

79

(6)

The exercise of official authority

85

(1)

Compatibility of the exceptions with citizenship of the European Union

86

(1)

Exceptions justified on grounds of public policy, public security, and public health

87

(6)

Procedural safeguards

93

(8)

Concluding comment

101

(1)

Remedies

102

(19)

Introduction

102

(1)

The requirement for reasoned decisions

102

(1)

Enforcing Community law before national courts

103

(9)

Preliminary rulings

112

(2)

Enforcing Community law at Community level

114

(3)

A strategy for enforcing Community rights

117

(4)

Part 3---Personal Rights

Citizenship of the European Union

121

(17)

Background

121

(1)

Treaty-based rights

122

(6)

The Charter of Fundamental Rights of the European Union

128

(2)

The case law

130

(6)

Concluding remarks

136

(2)

Benefits for movers

138

(25)

Introduction

138

(1)

Departure, entry and residence

139

(7)

The right to remain

146

(1)

Directive 2004/38/EC

147

(2)

Equality of treatment with nationals

149

(1)

Social and tax advantages

149

(6)

Family unity

155

(3)

Using Community law to avoid national immigration controls

158

(3)

A right to reasoned decisions

161

(1)

Concluding remarks

161

(2)

Social security and pensions

163

(28)

Introduction

163

(1)

Co-ordination and harmonization

164

(2)

First steps and many developments

166

(3)

Which benefits are covered

169

(7)

The obligations to co-ordinate

176

(7)

Links with policies on social protection

183

(1)

The equal treatment directives

184

(2)

Pension issues

186

(1)

Concluding remarks

187

(4)

Part 4---Regulating Market Access

Prohibiting obstacles to free movement

191

(18)

Context

191

(1)

Home State versus host State regulation

192

(1)

Avoiding dual burdens

193

(1)

The notion of non-discriminatory obstacles

194

(2)

The early case law

196

(2)

The modern line of cases

198

(6)

Preventing or substantially hindering access to the market

204

(2)

Twin rules

206

(2)

Concluding remarks

208

(1)

Services and goods

209

(14)

The context

209

(1)

The development of the law on the free movement of goods

210

(7)

Goods and services: similarities and differences

217

(2)

Advertising: goods and services

219

(2)

People and products are different

221

(2)

Case study: lawyers

223

(15)

Introduction

223

(3)

Recognition of qualifications

226

(3)

The Services Directive

229

(6)

The Establishment Directive

235

(1)

The work of the CCBE

236

(1)

Conclusion

237

(1)

Case study: insurance services

238

(17)

Background

238

(1)

Developing a single market for insurance

238

(2)

The first generation directives

240

(1)

The second generation directives

241

(4)

The third generation directives

245

(3)

Taxation and equal treatment

248

(1)

Some lingering issues

249

(4)

Concluding comment

253

(2)

Distinguishing personal rights from business regulation

255

(12)

Introduction

255

(1)

A constitutional right to freedom of movement

255

(4)

Fundamental rights

259

(1)

Business entities as nationals of the Member State

260

(1)

Discrimination versus non-discriminatory obstacles

261

(1)

Controlling the regulators

262

(2)

Home State versus host State regulation

264

(1)

Final remarks

265

(2)

Select Bibliography

267

(6)

Useful Websites

273

(2)

Index

275

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Workers, Establishment, and Services in the European Union

Summary

Author Biography

Table of Contents

Supplemental Materials