Requirements Based on Nationality

Requirements Based on Nationality in Europe

Prohibition of requirements based directly or indirectly on nationality in relation to the E.U. Services Directive

The following is an examination of prohibition of requirements based directly or indirectly on nationality regarding the European Union Servicies Directive [1]:

Prohibition of requirements based directly or indirectly on nationality: Prohibited establishment requirements

Article 14(1) prohibits all discrimination based directly or indirectly on grounds of nationality or, as regards companies, the location of the registered office.

Direct discrimination concerns requirements based on nationality or, in the case of a company, the location of the registered office. Indirect discrimination concerns, in particular, those requirements based on residence or, in the case of companies, the place of their principal establishment70. But differences of treatment based on other criteria may also amount to indirect discrimination on grounds of nationality if these criteria are, in practice, exclusively or mostly fulfilled by nationals or companies of the Member State imposing them. Such criteria may, for instance, relate to the place of the principal provision of the service activity, the law under which a company has been incorporated or the fact that a majority of the shares have to be directly or indirectly in public or State ownership71.

Article 14(1) explicitly mentions requirements which make access to or exercise of a service activity conditional upon the nationality or residence of the provider, his staff, persons holding the share capital or members of the provider's management or supervisory bodies. For example, a rule whereby only companies owned by nationals can undertake a particular service activity or a rule according to which managers need to reside in the national territory would be prohibited by Article 14(1)72.

Article 14(1) also prohibits rules which make the access to or the exercise of the service activity for foreign service providers more burdensome than for domestic players by imposing discriminatory requirements on the access to, or use of, property or equipment necessary for the provision of the service73. This is the case, amongst others, with discriminatory requirements imposed on the operator for the acquisition or use of immovable property, equipment, tools, vehicles, etc. (for example, a rule according to which only nationals can apply for the allocation of lock-ups rented by a municipality and used by craftsmen for the exhibition and sale of craft products)74. Indirect discrimination prohibited by Article 14(1) is also constituted by requirements which restrict the legal capacity or the rights of companies to bring legal proceedings, for instance, on the ground that they have been incorporated under the law of another Member State75.

Resources

Notes

  1. Information on prohibition of requirements based directly or indirectly on nationality based on the EU Services Directive Handbook, UK Government

See Also

Leave a Comment