Company Law as a Restriction to Free Movement – Examination of the Notion of 'Restriction' Using Company Law as the Frame of Reference
19 Pages Posted: 28 Jan 2014
Date Written: January 24, 2014
Focusing on recent judgments from the Court of Justice of the European Union this article investigates how the notion of ‘restriction’ – which is the first step in examining whether there is an infringement of the free movement rights – is used in cases involving company law measures. There is evidence that non-discriminatory obstacles to free movement found in company law can be restrictions. However, recent cases show that the Court may be willing to apply a more restrictive approach where only non-discriminatory measures that have a qualified deterrent effect may constitute restrictions. Furthermore, the article examines when measures undertaken by private parties – for instance when adopting articles of association – may constitute restrictions and finally the relationship between secondary EU-law and the free movement right is discussed.
Keywords: company law, free movevement, restriction
JEL Classification: K22
Suggested Citation: Suggested Citation