Jurisprudential issues concerning the beneficiaries of provisions of article 49 TFEU

• Author: Roxana-Mariana Popescu
• Position: Associate Professor, PhD, Faculty of Law, 'Nicolae Titulescu' University of Bucharest (e-mail: rmpopescu@yahoo.com).
• Pages: 60-67

LESIJ NO. XXIV, VOL. 2/2017

JURISPRUDENTIAL ISSUES CONCERNING THE

BENEFICIARIES OF PROVISIONS OF ARTICLE 49 TFEU

Roxana-Mariana POPESCU*

Abstract

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:

rmpopescu@yahoo.com).

1

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”.

2

Paul Craig, Grainne de Burca, Dreptul Uniunii Europene. Comentarii, jurisprudență și doctrină, edition IV,

Hamangiu Publishing House, Bucharest, 2009, p. 992.

or firms

1

(...) 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”

2

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