The bvi in germany and european aspects
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The ÖbVI in Germany and European aspects. Conflict: The ÖbVI is a liberal professional and a State’s official!

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The bvi in germany and european aspects
The ÖbVI in Germany and European aspects.

  • Conflict: The ÖbVI is a liberal professional anda State’s official!

  • In general the liberal professional acts under European law with European Basic Rights: e. g. Freedom of Movement for workers (Art. 39), … to provide Services (Art. 49), Right of Establishment (Art. 43).

  • Exception: Art. 45: The provisions of this chapter (establishment) shall not apply … to services, which in that State are connected, even occasionally, with the exercise of official authority.

  • The European Commission starts an ‘infringement process’ on the compatibility of the ÖbVI’s professional right with the EU.

Dipl.-Ing. ÖbVI Volkmar Teetzmann

The bvi in germany and european aspects1
The ÖbVI in Germany and European aspects.

  •  ‘Infringement process‘ – see BDVI-FORUM

  • Experience from this discussion: Europe‘s perception of a profession is not complete/comprehensive but selective. Separate questions, e.g. compatibility with ‚open market‘ and competitive positions, restrictions in the freedom of services, ‚Greenbook‘ on Services, establishment or nationality are investigated separately without a complex vision for the profession!

  • Incalculable decisions possible; see also Directives on Services, Mutual Recognition of Professions; infringement processes, Bologna Declaration, Bachelor Master

Dipl.-Ing. ÖbVI Volkmar Teetzmann

The prof henssler report
The Prof. Henssler - report

  • Under the impression of the infringement-process the BDVI decided to find an acknowledged European expert and to ask him to make an expertise about the central question raising from Art. 45 EC: “Function of the German Publicly Appointed Surveyor under the aspect of the exercise of Public Authority under the aspect of Art. 45.”

  • We found Prof. Martin Henssler from the University Cologne, chairing the institute for industrial and economic law, having been reporter to the European Parliament in different directives, expert for European problems of lawyers and liberal professions…

  • His report is now published and will be presented to the EC.

Dipl.-Ing. ÖbVI Volkmar Teetzmann

Structure of the henssler report
Structure of the Henssler - report

  • Basic European Rights and exceptions

  • 1.1Reflection of these Rights referring to the special law and literature of the ÖbVI

  • 2.The exception in Art. 45 EC

  • 2.1 Exercise of Public Authority – theory

  • 2.2 Decisions of the European Court – analysis

  • 2.3 Criteria for Exercise of Public Authority – derived from the European Court’s jurisdiction

  • 3. Application of these criteria to the legal frame of the ÖbVI

  • 3.1 Investigation of the special functions of the ÖbVI and result:

  • The ÖbVI is part of the State’s authority and ranges under the exception of Art. 45 EC

Dipl.-Ing. ÖbVI Volkmar Teetzmann

Summarizing theses from henssler
Summarizing theses from Henssler

  • The ÖbVI is acting as substitute for the State’s authority, rather more than the notary

  • Art. 45 assigns the ÖbVI to the only competence of the member State – no competence for the EC

  • No application of Art. 39, 45, 49.

  • Message: The Geometer is part of the State’s constitutional property guaranty with a high qualification and responsibility. A European model?

Dipl.-Ing. ÖbVI Volkmar Teetzmann

The bvi in germany and european aspects

Dipl.-Ing. ÖbVI Volkmar Teetzmann