Freedom of Establishment -- Towards a Unitary Approach

The four fundamental freedoms of the European Community include free movement of goods, free movement of workers, freedom of establishment and provision of services and free movement of capital. The purpose of the freedoms is to ensure the realisation of the Internal Market within the Community. As one of the freedoms the freedom of establishment is of great importance for the integration of the Member States. It concerns the free movement of highly educated persons, such as lawyers and doctors, and other self-employed, and the right for companies to establish themselves in other Member States. If the freedom of establishment and the other freedoms are to function it is material that their exercise is not impeded by national restrictions in the Member States. The Court recognised early in its case law the importance of the fundamental freedoms and of removing all obstacles in order to ensure the full exercise of them. It has been the Court, rather than the legislator, who has developed the interpretation and scope of the freedoms. The development in the case law has been graduate and the pace of it different from freedom to freedom, but when examining the recent case law it seems that the Court has aligned the case law on all of the freedoms. In other words, the approach of the Court to the scope of the freedoms and to which exceptions that are allowed appears to be similar for all four freedoms. The question is whether there is a unitary approach to all of the freedoms and especially whether the case law on the freedom of establishment follows the pattern of free movement of goods and services or not. The Gebhard case on freedom of establishment points in that direction in introducing the inclusion of indistinctly applicable national rules in the scope of the prohibition in article 43. This wider approach had already been introduced by the Court in the case law on free movement of goods and provision of services. With the Centros case the principle of mutual recognition was introduced in the field of freedom of establishment and the case law on this freedom was thereby further aligned with that in the area of free movement of goods. There has been a remarkable development in the Court's case law towards a unitary approach in the field of freedom of establishment, but there are still some differences in the approach of the Court to the freedoms before complete uniformity is achieved. For example, it cannot be stated with certainty that the Keck approach has been introduced in the field of freedom of establishment. Another difference is that the Court seems to be more lenient on non-discriminatory national rules affecting establishments in comparison to the approach to such rules affecting provision of services