Grogan:

-Ireland prohibits abortion, and prohibited travel to get an abortion; some students
handing out brochures as to where to get an abortion in the UK, a pro-life group filed
a claim that it was violation of Ireland
-Constitution; defensive claim was the right of services right to offer services
(advertise) across the border said that when talking about a Constitutional right, the
only thing that could counterbalance it is another Constitutional right
-Irish court clearly thinks the right to travel / services is not a counterbalance Ireland
eventually amends the Constitution so there is a right to travel (for an abortion)
-EU found that these students had no standing to assert the right to travel for
services it was someone elses services (kind of sidesteps the issue there was no
direct clash) Advocate Generals opinion some cases in which the Constitutional
principle might be based on some strong public policy, and that when thats the case
there should be an exception to the supremacy clause.
Cowan v Trsor
Cowan, a citizen of the UK, was mugged whilst on holiday in France (exercising his
EU free movement rights). French law only permitting criminal compensation to be
given to French nationals. Cowan was in breach of EU law. In order to not breach the
concept of the free movement of services, Cowan should be treated like every other
(french) citizen. This case recognised the principle of non-discrimination
Viking Line
The Court of Justice recognised that the right to take collective action may limit a
companys freedom of establishment, permitting the the opposition to the re-flagging
of a ship to prevent collective action.
Lava
Latvian construction company Laval posted workers to Sweden to work for its
Swedish subsidiary, Baltic Bygg. The Swedish construction union sought to
persuade the subsidiary to enter into a collective agreement that provided for more
favourable terms. When talks broke down, the union blockaded one of Laval's
building sites. As a result, the contract that Baltic Bygg was working on was
terminated and subsequently Baltic Bygg was declared bankrupt. Laval then began
proceedings in Sweden for a declaration that the industrial action was illegal on the
grounds that the union was infringing its rights under article 49 of the EC Treaty to
freedom of movement (and specifically its rights to provide services in Sweden). The
court referred the matter to the European Court of Justice (ECJ).
In both Viking and Lava, the ECJ held that the right to take industrial action is a
''fundamental right which forms an integral part of the general principles of
community law''. This might appear a significant pronouncement. However, its
significance is undermined by the extent to which the rulings then qualify the right.
The ECJ held that the consequence of recognising that the right to take industrial
action has its origins in community law is that the right can only be exercised in a
manner that is compatible with that law. The important consequence of this is that
the right is fettered in so far as it restricts freedom of movement and freedom of
establishment such that where industrial action restricts freedom of movement or
establishment, it will only be lawful if it is both justified and proportionate.
These two rulings impose substantive new restrictions on the lawfulness of industrial
action and require the UK courts to adopt a new approach to the grant of injunctive
relief, at least where there is a direct international element. Moreover, they may also
apply where there is very little or even no direct international element. There is
therefore every reason to conclude that Viking Line and Laval have provided
employers with a potent new weapon with which to oppose industrial action.
Free movement of establishment
Reyners
Independently of this harmonisation policy, the ECJ was able to remove some of the
restrictions in accordance with the principle of non-discrimination. Thus it has held
that a Dutch national resident in Belgium with the appropriate qualifications to
practice law could not be debarred from his professional activity on the ground that,
according to Belgian law, a lawyer must be a Belgian national
Vlassopoulou
where a Greek lawyer registered with the Athens Bar , was refused her application
for admission as a lawyer, by the German Ministry for Justice, Federal and European
Affairs of the Land Baden-Wuerttemberg, on grounds of not having adequate
qualifications. Mrs. Vlassopoulou had a number of Greek diplomas as well as a
doctorate in law from a German university and at the time practiced under the
responsibility of one of her German colleagues in the German firm she worked for.
The ECJ, moving beyond the direct effectiveness of the non-discrimination core of
Article 49, required the national authorities to consider and compare the knowledge
and skills of the community applicant with those required by the domestic
qualification, even in the event of a lack of harmonizing legislation. In Vlassopoulou
the Ministry was required to recognise the qualification, if found to be equivalent or
otherwise assess if any knowledge or training the applicant received in the host
member state sufficed for what the applicants qualification lacked.
Gebhard
concerned a German citizen who became subject to disciplinary proceedings by the
Milan Bar for pursuing a professional activity as a lawyer in Italy and for using the
title of avvocato although he was not admitted as a member of the bar and his
training, qualifications and experience were not formally recognised in Italy. Gebhard
referred to Directive 77/249/EEC to facilitate the effective exercise by lawyers of
freedom to provide services claiming he was entitled to pursue his professional
activity from his own chambers in Milan. In this case the ECJ confirming the position
in C-415/93, Union Royal Belge des Socie'tgs de Football Association ASBL v. Jean
Marc Bosman held that any hindrance to the fundamental freedoms must objectively
be justified by the Member State in order to avoid violation of the Treaty.
(Schneider.H & Claessens.S., 2007, pp. 4.).