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l time in germany but was resident in austria could 216 the general justifications for limiting free movement in tfeu article 45 3 are public policy public security or public health 217 and there is also a general exception in article 45 4 for employment in the public service citizens edit v t e citizen rights sources teu arts 18 21 citizens rights directive 2004 metock v minister for justice 2008 c 127 08 sala v freistaat bayern 1998 c 85 96 baumbast and r v ss for the home department 2002 c 413 99 chen v home secretary 2004 c 200 02 ruiz zambrano v onem 2011 c 34 09 grzelczyk v centre public d aide sociale 2001 c 184 99 r bidar v london borough of ealing 2005 c 209 03 commission v austria 2005 c 147 03 dano v jobcenter leipzig 2014 c 333 13 see eu law see also citizenship of the european union beyond the right of free movement to work the eu has increasingly sought to guarantee rights of citizens and rights simply be being a human being 218 but although the court of justice stated that citizenship is destined to be the fundamental status of nationals of the member states 219 political debate remains on who should have access to public services and welfare systems funded by taxation 220 as of now union citizenship is criticised for being not inclusive enough and having failed to establish a truly borderless space of social solidarity 221 in 2008 just 8 million people from 500 million eu citizens 1 7 per cent had in fact exercised rights of free movement the vast majority workers 222 according to tfeu article 20 citizenship of the eu derives from nationality of a member state article 21 confers general rights to free movement in the eu and to reside freely within limits set by legislation this applies for citizens and their immediate family members 223 this triggers four main groups of rights 1 to enter depart and return without undue restrictions 2 to reside without becoming an unreasonable burden on social assistance 3 to vote in local and european elections and 4 the right to equal treatment with nationals of the host state but for social assistance only after 3 months of residence the berlin wall 1961 1989 symbolised a bordered globe where citizens of the soviet union had no right to leave and few could enter the eu has progressively dismantled barriers to free movement consistent with economic development first the citizens rights directive 2004 article 4 says every citizen has the right to depart a member state with a valid passport this has historical importance for central and eastern europe when the soviet union and the berlin wall denied its citizens the freedom to leave 224 article 5 gives every citizen a right of entry subject to national border controls schengen area countries not the uk and ireland abolished the need to show documents and police searches at borders altogether these reflect the general principle of free movement in tfeu article 21 second article 6 allows every citizen to stay three months in another member state whether economically active or not article 7 allows stays over three months with evidence of sufficient resources not to become a burden on the social assistance system articles 16 and 17 give a right to permanent residence after 5 years without conditions third teu article 10 3 requires the right to vote in the local constituencies for the european parliament wherever a citizen lives all eu citizens have the right to child support education social security and other assistance in eu member states to ensure people contribute fairly to the communities they live in there can be qualifying periods of residence and work up to five years fourth and more debated article 24 requires that the longer an eu citizen stays in a host state the more rights they have to access public and welfare services on the basis of equal treatment this reflects general principles of equal treatment and citizenship in tfeu articles 18 and 20 in a simple case in sala v freistaat bayern the court of justice held that a spanish lady who had lived in germany for 25 years and had a baby was entitled to child support without the need for a residence permit because germans did not need one 225 in trojani v centre public d aide sociale de bruxelles a french man who lived in belgium for two years was entitled to the minimex allowance from the state for a minimum living wage 226 in grzelczyk v centre public d aide sociale d ottignes louvain la neuve 227 a french student who had lived in belgium for three years was entitled to receive the minimex income support for his fourth year of study similarly in r bidar v london borough of ealing the court of justice held that it was lawful to require a french ucl economics student lived in the uk for three years before receiving a student loan but not that he had to have additional settled status 228 similarly in commission v austria austria was not entitled to restrict its university places to austrian students to avoid structural staffing and financial problems if mainly german foreign students applied unless it proved there was an actual problem 229 however in dano v jobcenter leipzig the court of justice held that the german government was entitled to deny child support to a romanian mother who had lived in germany for three years but had never worked because she lived in germany for over 3 months but under five years she had to show evidence of sufficient resources since the court reasoned the right to equal treatment in article 24 within that time depended on lawful residence under article 7 230 establishment and services edit v t e freedom of establishment cases tfeu arts 49 55 r daily mail and general trust plc v treasury 1988 case 81 87 gebhard v avvocati e procuratori di milano 1995 c 55 94 centros ltd v erhvervs og selskabsstyrelsen 1999 c 212 97 überseering bv v nordic construction gmbh 2002 c 208 00 kamer van koophandel v inspire art ltd 2003 c 167 01 cartesio oktató és szolgáltató bt 2008 c 210 06 commission v germany 2007 c 112 2005 the rosella or itwf v viking line abp 2007 c 438 05 demir and baykara v turkey 2008 echr 1345 see eu law main articles internal market european union european company law and european labour law as well as creating rights for workers who generally lack bargaining power in the market 231 the treaty on the functioning of the european union also protects the freedom of establishment in article 49 and freedom to provide services in article 56 232 233 in gebhard v consiglio dell ordine degli avvocati e procuratori di milano 234 the court of justice held that to be established means to participate in economic life on a stable and continuous basis while providing services meant pursuing activity more on a temporary basis this meant that a lawyer from stuttgart who had set up chambers in milan and was censured by the milan bar council for not having registered should claim for breach of establishment freedom rather than service freedom however the requirements to be registered in milan before being able to practice would be allowed if they were non discriminatory justified by imperative requirements in the general interest and proportionately applied 235 all people or entities that engage in economic activity particularly the self employed or undertakings such as companies or firms have a right to set up an enterprise without unjustified restrictions 236 the court of justice has held that both a member state government and a private party can hinder freedom of establishment 237 so article 49 has both vertical and horizontal direct effect in reyners v belgium 238 the court of justice held that a refusal to admit a lawyer to the belgian bar because he lacked belgian nationality was unjustified tfeu article 49 says states are exempt from infringing others freedom of establishment when they exercise official authority but regulation of an advocate s work as opposed to a court s was not official 239 by contrast in commission v italy the court of justice held that a requirement for lawyers in italy to comply with maximum tariffs unless there was an agreement with a client was not a restriction 240 the grand chamber of the court of justice held the commission had not proven that this had any object or effect of limiting practitioners from entering the market 241 therefore there was no prima facie infringement freedom of establishment that needed to be justified the court of justice in centros ltd held that people can establish a uk company or any other to do business eu wide but must comply with proportionate requirements in the public interest 242 such as the basic labour right to a voice at work 243 in regard to companies the court of justice held in r daily mail and general trust plc v hm treasury that member states could restrict a company moving its seat of business without infringing tfeu article 49 244 this meant the daily mail newspaper s parent company could not evade tax by shifting its residence to the netherlands without first settling its tax bills in the uk the uk did not need to justify its action as rules on company seats were not yet harmonised by contrast in centros ltd v erhversus og selkabssyrelsen the court of justice found that a uk limited company operating in denmark could not be required to comply with denmark s minimum share capital rules uk law only required 1 of capital to start a company while denmark s legislature took the view companies should only be started up if they had 200 000 danish krone around 27 000 to protect creditors if the company failed and went insolvent the court of justice held that denmark s minimum capital law infringed centros ltd s freedom of establishment and could not be justified because a company in the uk could admittedly provide services in denmark without being established there and there were less restrictive means of achieving the aim of creditor protection 245 this approach was criticised as potentially opening the eu to unjustified regulatory competition and a race to the bottom in legal standards like the us state of delaware which is argued to attract companies with the worst standards of accountability and unreasonably low corporate tax 246 appearing to meet the concern in überseering bv v nordic construction gmbh the court of justice held that a german court could not deny a dutch building company the right to enforce a contract in germany simply because it was not validly incorporated in germany restrictions on freedom of establishment could be justified by creditor protection labour rights to participate in work or the public interest in collecting taxes but in this case denial of capacity went too far it was an outright negation of the right of establishment 247 setting a further limit in cartesio oktató és szolgáltató bt the court of justice held that because corporations are created by law they must be subject to any rules for formation that a state of incorporation wishes to impose this meant the hungarian authorities could prevent a company from shifting its central administration to italy while it still operated and was incorporated in hungary 248 thus the court draws a distinction between the right of establishment for foreign companies where restrictions must be justified and the right of the state to determine conditions for companies incorporated in its territory 249 although it is not entirely clear why 250 v t e freedom of services cases tfeu arts 56 62 services in the internal market directive 2006 säger v dennemeyer co ltd 1991 c 76 90 alpine investments bv v minister van financiën 1995 c 384 93 geraets smits v stichting ziekenfonds 2001 c 157 99 omega gmbh v oberbürgermeisterin bonn 2004 c 36 02 laval un partneri ltd v svenska baf 2007 c 341 05 josemans v burgemeester van maastricht 2010 c 137 09 see eu law the freedom to provide services under tfeu article 56 applies to people who give services for remuneration especially commercial or professional activity 251 for example in van binsbergen v bestuur van de bedrijfsvereniging voor de metaalnijverheid a dutch lawyer moved to belgium while advising a client in a social security case and was told he could not continue because dutch law said only people established in the netherlands could give legal advice 252 the court of justice held that the freedom to provide services applied it was directly effective and the rule was probably unjustified having an address in the member state would be enough to pursue the legitimate aim of good administration of justice 253 the court of justice has held that secondary education falls outside the scope of article 56 because usually the state funds it 254 but higher education does not 255 health care generally counts as a service in geraets smits v stichting ziekenfonds mrs geraets smits claimed she should be reimbursed by dutch social insurance for costs of receiving treatment in germany 256 the dutch health authorities regarded the treatment unnecessary so she argued this restricted the freedom of the german health clinic to provide services several governments submitted that hospital services should not be regarded as economic and should not fall within article 56 but the court of justice held health was a service even though the government rather than the service recipient paid for the service 257 national authorities could be justified in refusing to reimburse patients for medical services abroad if the health care received at home was without undue delay and it followed international medical science on which treatments counted as normal and necessary 258 the court requires that the individual circumstances of a patient justify waiting lists and this is also true in the context of the uk s national health service 259 aside from public services another sensitive field of services are those classified as illegal josemans v burgemeester van maastricht held that the netherlands regulation of cannabis consumption including the prohibitions by some municipalities on tourists but not dutch nationals going to coffee shops 260 fell outside article 56 altogether the court of justice reasoned that narcotic drugs were controlled in all member states and so this differed from other cases where prostitution or other quasi legal activity was subject to restriction if an activity does fall within article 56 a restriction can be justified under article 52 or by overriding requirements developed by the court of justice in alpine investments bv v minister van financiën 261 a business that sold commodities futures with merrill lynch and another banking firms attempted to challenge a dutch law that prohibiting cold calling customers the court of justice held the dutch prohibition pursued a legitimate aim to prevent undesirable developments in securities trading including protecting the consumer from aggressive sales tactics thus maintaining confidence in the dutch markets in omega spielhallen gmbh v bonn 262 a laserdrome business was banned by the bonn council it bought fake laser gun service...
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