Freedom of establishment, Union law, principle of proportionality, direct effect, CJEU, Article 49 TFEU, national restrictions, regulated profession, EU law
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Abstract
The Union law framework governing national restrictions on the freedom of establishment is based on the principle of proportionality and direct effect.
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[...] This lawyer being a citizen of another Member State of the European Union (EU). In accordance with the provisions of German law (Article 134 of the BGB), a contract that contravenes a legal prohibition is null and void. However, German law requires that only lawyers registered with the bar association may practice the profession and conclude a contract for legal services. Moreover, the question was raised as to whether this national prohibition was compatible with EU law, in particular with the freedom of establishment guaranteed by Article 49 TFUE. [...]
[...] However, in the Thelen case, no interpretation in conformity could be considered: the contract was null according to internal law, and the Court considers this nullity compatible with Union law. In the event of a breach of Union law, individuals may hold the State liable as set out in the Francovich judgment of 19 November 1991 of the CJEU, provided that : ? The rule of law violated must have the object of conferring rights on individuals ; ? The violation must be sufficiently characterized ; ? There is a direct causal link between the violation and the damage. [...]
[...] In the Thelen case, the German court questions the compatibility of Article 134 of the BGB, which invalidates a contract concluded with a person practicing law illegally in Germany, with this freedom of establishment, in particular in light of the principle of proportionality. Restrictions on the freedom of establishment: a strict framework by the principle of proportionality In the Thelen case, the CJEU considers that the German requirement of registration with the bar for practicing law pursues a legitimate objective of protecting consumers and the proper functioning of justice. This restriction is therefore potentially justified, provided that the principle of proportionality is respected. [...]
[...] The Union law framework of national restrictions on the freedom of establishment The Union law framework of national restrictions on the freedom of establishment is manifested by the recognition of this freedom as a fundamental principle endowed with primacy and direct effect whose restrictions are governed by the principle of proportionality The freedom of establishment, a fundamental principle of Union law endowed with primacy and direct effect The freedom of establishment constitutes a fundamental right enshrined in Article 49 of the TFEU. Since the Van Gend en Loos judgment delivered by the ECJ on 5 February 1963, Union law has imposed itself on the Member States, and its provisions are endowed with direct effect, allowing litigants to invoke them directly before national courts. This primacy and direct effect are reaffirmed in the Costa v. [...]
[...] When the author of the violation is a national court, the liability of the State is stricter and can only be incurred in the event of a manifest violation of the applicable law (judgment, ECJ September 2003, Köbler). [...]
