ISSUE: 3/2006

  • Volume 39
  • Number 3
  • 2006

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Studia Europejskie –
Studies in European Affairs

ISSN: 1428-149X
e-ISSN: 2719-3780

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Articles published in the journal are under a Creative Commons Attribution – Non Commercial – No Derivatives 4.0 International License

Teoria siedziby spółki i teoria założenia spółki a ograniczenie wspólnotowej swobody przedsiębiorczości na przykładzie RFN

The theory of registered office versus the theory of formation of a company and the restriction on the freedom of establishment in the EC-law (example of Germany)

Abstract

In his article the author analyses one of the most important freedoms provided by the Treaty establishing the European Community (ECT) – the freedom of establishment. Articles 43 ff. ECT provide not only for the freedom of establishment to nationals of a Member State but according to article 48 ECT also to “companies or firms”, which has a very wide meaning. The article distinguishes between the theory of registered office and the theory of formation of a company, examining their accordance with the freedom of establishment using the legal situation in Germany as an example. The theory of registered office of a company is understood as measure intended for domestic protection; on the other hand the theory of a company is welcomed in EC-law since it acknowledges the foreign forms of companies and support the mobility of companies within the Community. The author emphasises especially the judicial interpretation given by the European Court of Justice (ECJ) in this field. In its judgements the ECJ has radically influenced the developments of national company law. To mention but a few of the most important: the judgment in the Daily Mail case (1988), Centros-case (1999), Überseering-case (2002) and the more recently the case of Inspire Art from 2003. The general tendency in these judgments is the liberalisation of the internal market by the step-wise abolition of protectionist rules of national company law. The author systematises the judgments and points out the most important consequences. In the next part of the article the author analyses the practical consequences of the judgments of the ECJ for the economic actors. Despite the ECJ’s efforts so far towards the abolition of the protectionist theory of registered office of a company, the author elucidates the extent to which Community law allows the protectionist theory of registered office to be used so as to protect the national interests. The article ends with several prospective scenarios regarding the possible development of national company law in the light of both mentioned theories. The author comes to the conclusion that the theory of formation of a company should take priority so that Member States can fulfil their Community obligation to acknowledge foreign companies on their soil, and by so doing deepen the framework within the internal market and make the European Union the strongest commercial player in the global market.

Language: Polish

Pages: 71-98

How to Cite:

Harvard

Makowicz, B. (2006) "Teoria siedziby spółki i teoria założenia spółki a ograniczenie wspólnotowej swobody przedsiębiorczości na przykładzie RFN". Studia Europejskie – Studies in European Affairs, 3/2006, pp. 71-98.

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