CROSS-BORDER SERVICES (TEMPORARY)

​Establishment of a business vs. Free (temporary) provision of services?

Establishment means the actual pursuit of an economic activity by a service provider, as referred to in Article 49 of the FEU Treaty, for an indefinite period and through a stable infrastructure from where the business of providing services is actually carried out.

Free provision of services is the exercise of a service activity in a Member State on a temporary basis. It is characterized by the absence of a stable and continuous participation in the economic life of the host Member State by a service provider which is established in another Member State.

The line between these two concepts must be drawn in view of all factual and legal circumstances. The temporary nature of the activity in question has to be determined not only in light of the duration of the provision of the service, but also in light of its regularity, periodicity or continuity. The fact that the provision of services is temporary does not mean that the provider of services within the meaning of the Treaty may not equip himself with some form of infrastructure in the host Member State (including an office, chambers or consulting rooms) in so far as such infrastructure is necessary for the purpose of performing the services in question.