European Journal of Law Reform

Artikel

The ECJ Ruling in Cartesio and Its Consequences on the Right of Establishment and Corporate Mobility in the European Union

Keywords Cartesio, right of establishment, Corporate mobility
Authors Prof. dr.sc. Siniša Petrović en Tomislav Jakšić
Author's information

109348 Prof. dr.sc. Siniša Petrović
Prof. dr. sc. Siniša Petrović is a full professor at the Faculty of Law of the University of Zagreb.

109350 Tomislav Jakšić
Tomislav Jakšić is a Junior Researcher at the Faculty of Law of the University of Zagreb.
  • Abstract

      Before Cartesio, the case law of the European Court of Justice on freedom of establishment mainly considered company immigration situations, i.e. legal entities moving into another Member State. Cartesio is the first major ruling on company emigration since the 1988 decision in Daily Mail. Consequently, much was expected from Cartesio, notably that it would confirm a company’s right to directly invoke its freedom of establishment in emigration scenarios. However, this was not the case. Although Cartesio introduced some new concepts into the freedom of establishment case law like the concept of company conversion, the freedom of establishment actually took a step backward. This effectively resulted in almost complete disregard of the freedom of establishment in emigration situations - unlike in immigration situations. This partial denial of freedom of establishment, one of the fundamental freedoms of Community law, would seem urge the continuation of work on the new 14th Company Law Directive. In light of the current ECJ case law, only a legislative approach would seem suitable to guarantee non-discrimination in the ongoing regulatory competition between Member States which apply the registered seat theory and those which apply the administrative (real) seat theory.

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