Case C-215/01 Schnitzer [2003] ECR I-14847

Key point
  • A service provider is not to be regarded as established in another Member State on the sole basis that it is providing services over a long and regular duration, unless it has established a professional base to hold himself out to, amongst others, nationals of that Member State
  • Schitzer was fined for hiring a Portugese company to carry out large scale plastering work in Germany as the company was not entered on the German skilled trades register
  • The work was carried out for an extended period of time
  • He challenged the fine on the basis that the registration requirement was incompatible with the free movement of services under Article 56 TFEU
  • Here we are only concerned with the part of the judgment that deals with whether the case comes under the scope of Article 56 TFEU or Article 49 TFEU on the right of establishment

Scope of Article 56

  • The chapter on services in the Treaty relates to activities that are ‘temporary’: [27]
  • The temporary nature of the activity has to be determined in the light not only of the duration of the provision of the service but also of its regularity, periodical nature or continuity.
  • The fact that the activity is temporary does not mean that the service provider may not equip himself with some form of infrastructure necessary to perform services in the host Member State (including an office, chambers or consulting rooms), citing Gebhard): [28]

Scope of Article 49

  • The chapter of establishment applies where a person ‘pursues a professional activity on a stable and continuous basis in another Member State where he holds himself out from an established professional base to, amongst others, nationals of that Member State’: (citing Gebhard): [28]

On large scale, extended projects

  • ‘services within the meaning of the Treaty may cover services varying widely in nature, including services which are provided over an extended period, even over several years, where, for example, the services in question are supplied in connection with the construction of a large building’: [30]
  • ‘It follows that the mere fact that a business established in one Member State supplies identical or similar services with a greater or lesser degree of frequency or regularity in a second Member State, without having an infrastructure there enabling it to pursue a professional activity there on a stable and continuous basis and, from the infrastructure, to hold itself out to, amongst others, nationals of the second Member State, is not sufficient for it to be regarded as established in the second Member State:’ [32]
  • The Court then went on to consider compatibility of the requirement with register as a restriction on the free movement of services under Article 56
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