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

Access to certain self-employed activities may be subject to compliance with laws, regulations or administrative provisions, justified by the general interest, such as rules relating to organization , qualifications , professional ethics  or supervision and liability, provided that they are applied without discrimination . Thus, national legislation which imposes a condition of nationality for acc …

Access to the activity

Access to certain self-employed activities may be subject to compliance with laws, regulations or administrative provisions, justified by the general interest, such as rules relating to organization , qualifications , professional ethics  or supervision and liability, provided that they are applied without discrimination . Thus, national legislation which imposes a condition of nationality for access to the profession of notary violates Article 49 TFEU . On the other hand, it may provide that in determining a taxpayer's profit, the deduction of interest paid in respect of a loan debt contracted with a related entity, concerning the acquisition or increase of a shareholding in another entity which becomes, following such acquisition or increase, a related entity of that taxpayer, is denied in full, where such debt is considered to constitute a purely artificial arrangement or to form part of such an arrangement, even if the debt was contracted at arm's length and the amount of such interest does not exceed that which would have been agreed between independent undertakings .

An administrative authorization scheme which derogates from a fundamental freedom must, however, be based on objective, non-discriminatory criteria which are known in advance to the undertakings concerned, in such a way as to circumscribe the exercise of the national authorities' discretion, so that it is not used arbitrarily . To be regarded as necessary, the authorization scheme must not duplicate controls which have already been carried out in the same State or in another Member State . The obligation to register in a trade register is justified where the measure does not place companies from other Member States in a less favorable factual or legal situation . However, it must not delay, complicate or render more onerous the provision of the services in the host Member State if the conditions prescribed by the directive governing recognition of professional qualifications which is applicable to pursue that activity are satisfied . Thus, national legislation constitutes a restriction on the freedom of establishment where it:

 - without justification requires that EU nationals be entered on a professional register kept by Chambers of Commerce following authorization by the Ministry for the Interior ;

 - requires proof that the designer is registered with the national association for architects within the framework of a bidding procedure ;

 - makes the exercise of skilled trades by an undertaking established in another Member State subject to it being entered on the skilled trade register where examination of the conditions governing access to those activities has been carried out ; 

 - refuses registry in the commercial register and that refusal generally results in preventing the realization of certain cross-border mergers ; 

 - requires registration of company vehicles belonging to companies established in another Member State where they are already registered ; or limits the number of chauffeur-driven private-hire service licenses to one thirtieth of the cab service licenses issued for that conurbation ;

 - makes the grant of a license to exercise an activity such as a performing artists' engagements agency, subject to the need to engage performers ;

 - makes the creation of a health institution subject to the issue of a prior authorization based on an assessment of the needs of the market ;

 - puts in place a system of prior approval for insurance premium rate increases ;

 - requires operators established in another Member State wishing to pursue the activities of assessment, verification and collection of tax and other local government revenues of that State, to have a fully paid up capital ;

 - refuses partial access to a regulated profession in the host Member State to a national of that State having obtained, in another Member State, a qualification authorizing him to carry out, in that second Member State, part of the activities coming under the profession concerned .

Also contrary to Article 56 TFEU are the rules laid down by the associations responsible for soccer at world and European level, which simultaneously carry out various economic activities linked to the organization of competitions, making the creation, on EU territory, of interclub football competitions by a third party subject to their prior authorization, of interclub competitions by a third-party undertaking, and control the participation of professional football clubs and players in such competitions, subject to sanctions where they are not governed by substantive criteria and procedural rules designed to ensure that they are transparent, objective, non-discriminatory and proportionate .

Case 292/86 Gullung v Conseils de l'ordre des avocats du barreau de Colmar et de Saverne [1988] ECR 111, LawLex200900001823JBJ, registration with professional council.

Case 222/86 Unectef v Heylens [1987] ECR 4097, LawLex200900001685JBJ; C-340/89 Vlassopoulou v Ministerium für Justiz, Bundes- u. Europaangelegenheiten Baden-Württemberg [1991] ECR I-2357, LawLex200900000398JBJ; C-104/91 Criminal proceedings against Aguirre Borrell and others [1992] ECR I-3003, LawLex200900000323JBJ: production of diplomas certifying that the holder has the relevant knowledge and qualifications. 

Case C-264/99 Commission v Italy [2000] ECR I-4417, LawLex200700001619JBJ.

Case C-225/98 Commission v France [2000] ECR I-7445, LawLex200700001613JBJ.

Case C-58/98 Corsten [2000] ECR I-7919, LawLex200700001595JBJ.

Case C-411/03 SEVIC Systems [2005] ECR I-10805, LawLex200900000730JBJ.

Case C-151/04 Nadin and Nadin-Lux [2005] ECR I-11203, LawLex200900000600JBJ.

Case C-50/21 Prestige and Limousine SL, Judgment of 8 June 2023, LawLex202400004555JBJ, which held that such regulation is contrary to Article 49 TFEU, since it is not established that the measure is suitable for guaranteeing, in a coherent and systematic manner, the implementation of the objectives of sound management of transport, traffic and public space in that conurbation and of the protection of its environment, nor that it does not go beyond what is necessary to achieve those objectives.

Case C-255/04 Commission v France [2006] ECR I-5251, LawLex200900000999JBJ. See, also, Case C-389/05 Commission v France [2008] ECR I-5337, LawLex200900002257JBJ, for the requirement to obtain a licence the issue of which is subject to concluding an agreement with an authorized centre which is a potential competitor.

Case C-169/07 Hartlauer [2009] ECR I-1721, LawLex200900002322JBJ.

Case C-577/11 DKV Belgium SA, Judgment of 7 March 2013, LawLex201300000477JBJ, precluding a system which requires undertakings wishing to enter the market in the member State concerned, to change their terms and rates to meet the legal requirements, and also to determine their premium positioning and their commercial strategy when they first set their premiums, without knowing whether the increase will be sufficient to cover the costs with which they will be faced.

Case C-357/10 Duomo Gpa Srl CJUE, Judgment of 10 May 2012, LawLex201200001759JBJ.

Case C-106/91 Ramrath v Ministre de la Justice [1992] ECR I-3351, LawLex200900000334JBJ. See, however, Case C-193/05 Commission v Luxembourg [2006] ECR I-8673, LawLex200900001050JBJ, which precludes the registration of European lawyers with the competent authority of the host Member State from being subject to a prior language test insofar as the rights of the clients are sufficiently ensured by the requirement for lawyers to exercise under their home-country professional title, and by the possibility for a Member State to impose to work in conjunction with a lawyer who practices before the judicial authority in question where activities relating to representation and defense of a client in legal proceedings are involved.

Case C-575/11 Eleftherios-Themistoklis Nasiopoulos, Judgment of 27 June 2013, LawLex201300001027JBJ: especially where the differences between the fields of activity are so great that the applicant should follow a full program of education and training in order to pursue, in the host Member State, the activities for which he is qualified.

Case C-333/21 European Superleague Company SL, Judgment of 21 December 2023, LawLex202400004511JBJ. Case C-650/22 Fédération Internationale de Football Association (FIFA), Judgment of 4 October 2024, LawLex202400008498JBJ, which holds that Article 45 TFEU precludes rules adopted by a private law association whose aims include the regulation, organization and auditing of soccer at world level, and which provide that a professional player who is party to an employment contract and who is alleged to have terminated it without just cause, and the new club which hires him following such termination are jointly and severally liable for the payment of compensation due to the former club for which the player worked, to be determined on the basis of criteria which are sometimes imprecise or discretionary, sometimes lacking any objective link with the employment relationship concerned, and sometimes disproportionate.

Case 71/76 Thieffry v Conseil de l'ordre des avocats de la Cour de Paris [1977] ECR 765, LawLex200900002009JBJ; Case C-55/94 Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165, LawLex200900001056JBJ.

This was the remedy in a number of judgments handed down on the same day, of which Case C-51/08 Commission v Luxembourg [2011] ECR I-4231, LawLex201100001112JBJ. This judgment concerned France, which subsequently amended Decree No 73-609 of 5 July 1973 replacing the requirement of French nationality as a condition for access to the profession of notary with the condition of being a national of an EU Member State or any other State party to the EEA Agreement (Decree No 2011-1309 of 17 Oct. 2011).

Case C-585/22, Judgment of 4 October 2024, LawLex202400007367JBJ.

Case C-19/92 Kraus v Land Baden-Württemberg [1993] ECR I-1663, LawLex200900000770JBJ, it is justified where it meets certain conditions concerning its limited object, its accessibility, the possibility to bring court proceedings against any decision of refusal, the fact that the reasons for that decision are ascertained and the proportionate character of the penalties prescribed; Case C-205/99 Analir and others [2001] ECR I-1271, LawLex200900001110JBJ; Case C-338/09 Yellow Cab Verkehrsbetriebs GmbH, Judgment of  22 December 2010, LawLex201100000392JBJregarding national legislation requiring an operator established in another Member State and wishing to obtain a license to operate a regular passenger transport service by bus in the host State, to have a registered office or other establishment on the territory of said host State; Case C-50/21 Prestige and Limousine SL, Judgment of 8 June 2023, LawLex202400004555JBJ, for legislation requiring a specific authorization to provide chauffeur-driven private hire services in a conurbation, in addition to the national authorization required for the provision of urban and interurban private-hire vehicle services.

Case C-390/99 Canal Satélite Digital [2002] ECR I-607, LawLex200900000649JBJ.

Case C-453/04 innoventif [2006] ECR I-4929, LawLex200900000887JBJ, for a national rule which makes the registration in the trade register of a branch of a company established in another Member State subject to payment of an advance on the anticipated cost of the publication of the corporate object.

Case C-215/01 Schnitzer [2003] ECR I-14847, LawLex200900001234JBJ.

European Business Law

94. Access to the activity

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

94. Access to the activity

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise