Jurisprudential issues concerning the beneficiaries of provisions of article 49 TFEU

AuthorRoxana-Mariana Popescu
PositionAssociate Professor, PhD, Faculty of Law, 'Nicolae Titulescu' University of Bucharest (e-mail: rmpopescu@yahoo.com).
Roxana-Mariana POPESCU*
From the interpretation of Article 49 paragraph (1) TFEU it results that restrictions on the
freedom of establishment are removed for the purpose to pursue independent activities under conditions
of equality with nationals of the Member State of establishment. The beneficiaries of Article 49 TFEU
are people moving from the territory of the State of origin (nationals of a Member State) on the territory
of another Member State in order to pursue an independent activity, but only under the case-law of the
Court of Justice of the European Union; beneficiaries of these rights are also the Member State
nationals who obtained qualification s or training in another Member State and then go back to their
home state to conduct a business on grounds of that qualification or professional training.
Keywords: Article 49 TFEU; ben eficiaries; ECJ case-law; recognition of professional
qualifications; recognition of professional training.
1. General aspects
Under Article 49 of the Treaty on the
Functioning of the European Union (TFEU),
at the level of the European Union,
„restrictions on the freedom of
establishment of nationals of a Member
State in another Member State are
prohibited. This prohibition aims a lso at
restrictions on the setting up of agencies,
branches or subsidiaries b y nationals of any
Member State establi shed in another
Member State. The freedom of
establishment includes access to
independent activities and their exercise, as
well as the setting up and management of
undertakings, and in particular of companies
* Associate Professor, PhD, Faculty of Law, “Nicolae Titulescu” University of Bucharest (e-mail:
Companies covered by those provisions are those referred to in art. 54 second paragraph of the TFEU, namely
„companies formed in accordance with provisions of civil or commercial law, including cooperative societies and
other legal persons of public or private law, excepting the non-profit companies”.
Paul Craig, Grainne de Burca, Dreptul Uniunii Europene. Comentarii, jurisprudență și doctrină, edition IV,
Hamangiu Publishing House, Bucharest, 2009, p. 992.
or firms
(...) under the conditions laid down
for its own nationals, by the law of the
country of establishment”. Thus, from the
interpretation of Article 49 paragraph (1)
TFEU it results that, on the one hand,
restrictions on the freedom of establishment
are eliminated and, on the other hand, the
right „to pursue independent activities on
equal terms with nationals of the Member
State of establishment”
is set. After first
reading the article, it can be interpreted that
the beneficiaries of the rights mentioned
above are only those persons moving from
the territory of origin (they are nationals of a
certain Member State). Furthermore, „its
requirements are satisfied if the person
exercising the right of establishment is

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