European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Only activities having an economic character are covered by the rules applicable to the freedom of establishment or the freedom to provide services . The concept of economic activity is widely interpreted and extends to all activities normally carried out for remuneration . The concept of economic activity, which defines the scope of application of the fundamental freedoms guaranteed by the Treaty …

Economic activities

Only activities having an economic character are covered by the rules applicable to the freedom of establishment or the freedom to provide services . The concept of economic activity is widely interpreted and extends to all activities normally carried out for remuneration . The concept of economic activity, which defines the scope of application of the fundamental freedoms guaranteed by the Treaty, cannot be interpreted restrictively. The provision of a service for remuneration does not require the person providing the service to be seeking to make a profit  or for the service to be paid by those who benefit from it . The essential characteristic of remuneration lies in the fact that it constitutes economic consideration for the service in question, and is normally agreed upon between the provider and the recipient of the service . The fact that the remuneration is fixed in accordance with a rate decided by the public authority is of no consequence as regards the categorization of the work . The work performed must be genuine and effective and not purely marginal and ancillary .

The principle of free movement applies in particular to: 

- Sporting activities: the practice of a sport is subject to EU law insofar as it constitutes an economic activity . This applies to the activities of professional or semi-professional football players  or the participation of an athlete in international tournaments  where leading sports personalities receive remuneration in consideration of a service. However, although rules or practices excluding foreign players from certain matches for reasons which relate to the particular nature and context of such matches, such as matches between national teams from different countries and thus of sporting interest only, are not subject to the principle of free movement , this is not the case for transfer rules, which prevent any change of club unless a compensation fee is paid to the club of origin , rules adopted by sports associations to govern the employment or provision of services by professional or semi-professional players, or which have a direct impact on such employment or provision of services , or those which stipulate that professional football clubs taking part in interclub competitions must, under penalty of sanctions, enter a minimum number of locally-trained players on the match sheet, limiting the possibility for clubs to enter players on the match sheet, and therefore to play those players in the corresponding match, but not formally limiting the possibility of employing those players, since participation in matches and competitions constitutes the essential purpose of the players' activity, and this possibility of employment is also limited as a result . 

- Religious activities: the works of a religious community come under EU law where they are subject to economic consideration. This is the case where the works guarantee the economic independence of the community, which indirectly compensates its member by the services it provides them .

- Educational activities: a course provided under a national education system does not come under Article 57 TFEU insofar as the State only fulfils its educational duties  and such course is financed essentially out of public funds . By contrast, education provided in schools financed essentially by private funds constitutes a provision of a service for remuneration even if the funds are not provided by the recipients of the service . Likewise, a vocational training course likely to promote free movement of persons, by enabling them to obtain a qualification in the Member State where they intend to work, falls within the scope of the Treaty . 

- Activities in the audiovisual field: the distribution by operators of cable networks established in a Member State of television programs supplied by broadcasters established in other Member States constitutes a provision of services even if the broadcasters of televised programs do not themselves pay the cable network operators for relaying their programs . The introduction of a tax to finance the promotion and dissemination of cinematographic and audiovisual works has too uncertain and indirect an effect on the freedom to provide production services for such works to be deemed contrary to that principle .

- Lotteries and games of chance: games and lotteries are described as economic activities where they are characterized by the provision of a defined service for remuneration and by the prospect of winning money . Bets  or the use, in return for a money payment, of slot machines  are regarded as gambling which is comparable to lotteries. 

- Health care activities: neither the fact that national rules fall within the scope of social security , nor the fact that hospital medical treatment is financed directly by sickness insurance funds on the basis of agreements and pre-set scales of fees , is such as to exclude the application of Articles 56 and 57 TFEU. Medical activities fall within the scope of Article 57 TFEU, there being no need to distinguish in that regard between care provided in a hospital and care provided outside such a hospital . Likewise, voluntary pension insurance contributions paid by an independent worker constitute consideration for pensions which will be payable to him when he stops working within the meaning of Article 57 TFEU .

Article 57 TFEU; Directive No 2006/123 of 12 December 2006 on services in the internal market, OJ 27 December 2006, L 376, 36 to 68, § 8: the provisions of the Services Directive, which apply to the freedom of establishment and the free movement of services, apply only to the extent that the activities in question are open to competition. Article 4 defines service as “any self-employed economic activity, normally provided for remuneration”.

Case C-281/06 Jundt [2007] ECR I-12231, LawLex200900001378JBJ.

Case C-51/96 Deliège [2000] ECR I-2549, LawLex200700001592JBJ.

Case C-415/93 Union royale belge des sociétés de football association and others v Bosman and others [1995] ECR I-4921, LawLex200900000750JBJ.

Case C-333/21 European Superleague Company SL, Judgment of 21 December 2023, LawLex202400004511JBJ.

Case C-680/21 SA Royal Antwerp Football Club, Judgment of 21 December 2023, LawLex202400004512JBJ.

Case 196/87 Steymann v Staatssecretaris van Justitie [1988] ECR 6159, LawLex200900001641JBJ.

Case 263/86 Belgian State v Humbel and Edel [1988] ECR 5365, LawLex200900001789JBJ.

Case C-109/92 Wirth v Landeshauptstadt Hannover [1993] ECR I-6447, LawLex200900000358JBJ.

Case C-76/05 Schwarz and Gootjes - Schwarz [2007] ECR I-6849, LawLex200900001169JBJ and Case C-318/05 Commission v Germany [2007] ECR I-6957, LawLex200900001472JBJ: education provided in schools financed essentially by private funds constitutes a provision of service for remuneration even if the funds are not provided by the recipients of the service.

Case 293/83 Gravier v City of Liège [1985] ECR 593, LawLex201200001727JBJ.

Case 352/85 Bond van Adverteerders v Netherlands State [1988] ECR 2085, LawLex200900002314JBJ.

Case C-275/92 H.M. Customs and Excise v Schindler [1994] ECR I-1039, LawLex200900002113JBJ: lottery activities are economic activities, within the meaning of the Treaty, where they consist in the importation of goods or the provision of services for remuneration; Case C-6/01 Anomar and others [2003] ECR I-8621, LawLex200900001065JBJ.

Case C-67/98 Zenatti [1999] ECR I-7289, LawLex201400000199JBJ; Case C-517/20 OL (Extension of Italian licences), Judgment of 16 March 2023, not available in English.

Case C-6/01 Anomar and others [2003] ECR I-8621, LawLex200900001065JBJ.

Case C-158/96 Kohll v Union des caisses de maladie [1998] ECR I-1931, LawLex200900000625JBJ: a treatment provided by an orthodontist established in another Member State, outside any hospital infrastructure, constitutes a service provided for remuneration within the meaning of Article 57(d) TFEU.

Case C-157/99 Smits and Peerbooms [2001] ECR I-5473, LawLex200900000619JBJ.

Case C-157/99 Smits and Peerbooms [2001] ECR I-5473, LawLex200900000619JBJ; Case C-444/05 Stamatelaki [2007] ECR I-3185, LawLex200900000858JBJ: Article 56 TFEU applies to the situation of a patient who receives, in a Member State other than that his Member State of residence, medical services in a hospital environment which are provided for consideration, irrespective of whether the establishment is public or private; case C-372/04 Watts [2006] ECR I-4325, LawLex200900000571JBJ: Article 56 TFEU applies to the situation of a patient who receives, in a Member State other that her State of residence, medical services in a hospital environment which are provided for consideration, irrespective of the mode of operation of the national health service with which she is registered and to which the reimbursement of those services is subsequently required; Case C-385/99 Müller-Fauré and van Riet [2003] ECR I-4509, LawLex200900000620JBJ: medical treatments such as those provided in a Member State other than that in which the persons are insured which resulted in direct payment by the patient to the doctor providing the service or the establishment in which the care was provided, fall within the scope of application of the free provision of services; Case C-159/90 Society for the Protection of Unborn Children Ireland v Grogan and others [1991] ECR I-4685, LawLex200900000628JBJ: termination of pregnancy lawfully practised within a Member State as part of a professional activity constitutes a medical activity normally provided for remuneration, within the meaning of Article 57 TFEU; Case 286/82 Luisi and Carbone v Ministero dello Tesoro [1984] ECR 377, LawLex200900001498JBJ: the freedom to provide services includes the freedom, for the recipients of services, such as persons receiving medical treatments, to go to another Member State in order to receive those services.

Case C-136/00 Danner [2002] ECR I-8147, LawLex200900000532JBJ.

Case 352/85 Commission v France [1988] ECR 2243, LawLex200900002314JBJ; See, also, Case C-51/96 Deliège [2000] ECR I-2549, LawLex200700001592JBJ, on sporting activities remunerated by grants and sponsorship.

Case C-372/09 Peñarroja Fa [2011] ECR I-1785, LawLex201100000886JBJ, classifying as the provision of a service a duty entrusted by a court, to a professional who has been appointed as a court expert translator.

Case 13/76 Dona v Mantero [1976] ECR 1333, LawLex200900001530JBJ; Case 36/74 Walrave and Koch v Association Union Cycliste Internationale and others [1974] ECR 1405, LawLex200900001964JBJ. The Services Directive No 2006/123 explains at point 35 that non-profit making amateur sporting activities “often pursue wholly social or recreational objectives. Thus, they might not constitute economic activities within the meaning of Community law and should fall outside the scope of this Directive”.

Where they are in the nature of gainful employment or remunerated service: Case 13/76 Dona v Mantero [1976] ECR 1333, LawLex200900001530JBJ; Case C-415/93 Union royale belge des sociétés de football association and others v Bosman and others [1995] ECR I-4921, LawLex200900000750JBJ.

To whom grants are awarded on the basis of earlier sporting results and who benefits from sponsorship contracts directly linked to the result achieved by the athlete: Case C-51/96 Deliège [2000] ECR I-2549, LawLex200700001592JBJ.

European Business Law

81. Economic activities

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81. Economic activities

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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