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

See all articles by Karsten Engsig Sørensen

Karsten Engsig Sørensen

Aarhus University – Aarhus BSS, Department of Law

Date Written: January 24, 2014

Abstract

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

Sørensen, Karsten Engsig, Company Law as a Restriction to Free Movement – Examination of the Notion of 'Restriction' Using Company Law as the Frame of Reference (January 24, 2014). Nordic & European Company Law Working Paper No. 14-01, Available at SSRN: https://ssrn.com/abstract=2386145 or http://dx.doi.org/10.2139/ssrn.2386145

Karsten Engsig Sørensen (Contact Author)

Aarhus University – Aarhus BSS, Department of Law ( email )

Bartholins Allé 16, Building 1410, Room 246
DK-8000 Aarhus C
Denmark

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