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

Article 51 TFEU excludes from the scope of application of the freedom of establishment “activities which in [a] State are connected, even occasionally, with the exercise of official authority” . As a general exception to Articles 49 and 52, Article 51 applies both to direct discriminations and restrictions making the free movement less attractive .
The provision makes it possible to exclude access …

Participation in the exercise of public authority

Article 51 TFEU excludes from the scope of application of the freedom of establishment “activities which in [a] State are connected, even occasionally, with the exercise of official authority” . As a general exception to Articles 49 and 52, Article 51 applies both to direct discriminations and restrictions making the free movement less attractive .

The provision makes it possible to exclude access by non-nationals to certain self-employed functions which imply direct and specific connection with the exercise of official authority. An extension of the exception to a whole profession is possible where the freedom of establishment would impose on the Member State concerned the obligation to allow the exercise, even occasionally, by non-nationals of functions appertaining to official authority . This may be the case for the professions of notaries and bailiffs.

However, if activities connected with the exercise of official authority are separable from the activity in question taken as a whole, Article 51 does not apply. In particular, the question has been raised for lawyers; if consultation, legal assistance and even the monopoly of representation in court are not undoubtedly acts of public authority, other prerogatives such as in France the possibility of belonging to a professional association (conseil de l'ordre) or of deputising for judges in order to complete a bench seem to imply that lawyers do, at least occasionally, take part, in the exercise of official authority (the laws of other Member States include similar rules). However, according to the Court of Justice , activities such as consulting and legal assistance or the representation and defense of parties do not fall within the scope of application of Article 51 TFEU where they do not in themselves involve a direct and specific connexion with the exercise of official authority even if the performance of those activities is compulsory or there is a legal monopoly in respect of it. Attempts to rely on the exception were dismissed in other cases relating to:

- inspection of organically-farmed products , 

- authorization for roadworthiness tests for motor vehicles .

The European court underlines that although restrictions to free movement must be assessed in the light of applicable national provisions, that assessment must however be carried out taking account of the “Community character” of the limits set to the exceptions based on Article 51 TFEU .

The Services Directive also includes that exception: activities with are connected with the exercise of official authority as set out in Article 45 of the Treaty are excluded from its scope of application (Art. 2(2)(i)).

Case C-438/08 Commision v Portugual [2009] ECR I-10219, LawLex201100000338JBJ.

Case C-393/05 Commission v Austria [2007] ECR I-10195, LawLex200900000658JBJ; Case C-404/05 Commission v Germany [2007] ECR I-10239, LawLex200900000702JBJ.

Case C-438/08 Commission v Portugal [2009] ECR I-10219, LawLex201100000338JBJ.

Case 147/86 Commission v Greece [1988] ECR 1637, LawLex200900001536JBJ.

Case 2/74 Reyners v Belgian State [1974] ECR 631, LawLex200900001650JBJ.

This is not the case for lawyers' activities such as consultation, legal assistance, representation and defense of parties in court, even if the performance of these activities is compulsory or there is a legal monopoly in respect of it, as they leave the discretion of judicial authority and the free exercise of judicial power intact, Case 2/74 Reyners v Belgian State [1974] ECR 631, LawLex200900001650JBJ.

Case C-157/09 Commission v Netherlands, Judgment of 1 December 2011, not available in English.

Case C-306/89 Commission v Greece [1991] ECR I-5863, for activities of traffic accident expert.

Case C-42/92 Thijssen v Controledienst voor de verzekeringen [1993] ECR I-4047, LawLex200900000775JBJ: for the activity of approved commissioner; Case C-393/05 Commission v Austria [2007] ECR I-10195, LawLex200900000658JBJ: for a private inspection body; Case C-404/05 Commission v Germany [2007] ECR I-10239, LawLex200900000702JBJ; Case C-451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I-2941, LawLex200700001475JBJ: for activities which are only intended to prepare or facilitate the accomplishment of the tasks for which the tax authorities are responsible.

Case C-114/97 Commission v Spain [1998] ECR I-6717, LawLex200900000396JBJ; Case C-355/98 Commission v Belgium [2000] ECR I-1221, LawLex200700001630JBJ, Case C-283/99 Commission v Italy [2001] ECR I-4363, LawLex200900001408JBJ; Case C-465/05 Commission v Italy [2007] ECR I-11091, LawLex200900000945JBJ.

Case C-451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I-2941, LawLex200700001475JBJ.

European Business Law

102. Participation in the exercise of public authority

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

102. Participation in the exercise of public authority

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise