## Facts

- Mr. Schnitzer, a German tax advisor, provided tax advisory services to clients in Austria while maintaining his main establishment in Germany.
- Austrian authorities objected to his practice, claiming it constituted a permanent establishment in Austria and required compliance with Austrian professional regulations.
- The dispute focused on whether the nature, frequency, and regularity of his presence in Austria amounted to full establishment or merely temporary service provision.

## Issues

1. Whether a professional who maintains a primary establishment in one Member State can provide services in another Member State without being regarded as permanently established there.
2. What criteria determine the distinction between establishment and the temporary provision of services under Article 49 TFEU.
3. To what extent Member States may impose regulatory requirements on cross-border service provision without breaching EU law.

## Decision

- The Court held that the freedom of establishment under Article 49 TFEU is not limited to setting up a permanent presence in the host Member State.
- Professionals may offer temporary cross-border services while maintaining a primary establishment in their home Member State, provided they meet certain criteria.
- The ECJ outlined that the duration, frequency, regularity, and periodicity of the service must all be considered to assess if the activity is temporary.
- No single criterion is decisive; the assessment must be comprehensive and account for the specific professional activity at issue.
- Member States are permitted to regulate professional services within their territory for public interest protection but any restrictions must be justified and proportionate.

## Legal Principles

- Article 49 TFEU guarantees the freedom of establishment, which includes both permanent and, in certain circumstances, temporary cross-border professional activity.
- The distinction between establishment and service provision depends on an overall evaluation of the duration, frequency, regularity, and periodicity of the activity.
- Restrictions imposed by Member States must be justified by legitimate public interest objectives and must not create unjustified obstacles to the freedom of establishment or provision of services.
- This case builds upon principles established in Case C-55/94 Gebhard, refining the test for differentiating between establishment and services.

## Conclusion

The ECJ judgment in Schnitzer v Finanzamt clarified and broadened the scope of the freedom of establishment, enabling professionals to provide temporary cross-border services within the EU without full host-state establishment, provided such activities remain temporary and any regulatory barriers are justified and proportionate.


Schnitzer v Finanzamt [2003] ECR I-14847 (Case C-215/01)