scholarly journals THE MYSTERIES OF FREEDOM OF ESTABLISHMENT AFTER CARTESIO

2010 ◽  
Vol 59 (2) ◽  
pp. 303-323 ◽  
Author(s):  
Carsten Gerner-Beuerle ◽  
Michael Schillig
Keyword(s):  
European Union ◽  
Company Law ◽  
European Court Of Justice ◽  
Coherent System ◽  
Private International Law ◽  
The European Union ◽  
Freedom Of Establishment ◽  
Court Of Justice ◽  
European Court ◽  
The Right

AbstractThe judgment of the European Court of Justice in Cartesio was eagerly awaited as a clarification of the questions concerning the scope of the right of establishment (articles 49, 54 Treaty on the Functioning of the European Union (TFEU), (ex-articles 43, 48 EC) that remained after previous landmark decisions such as Centros, Überseering, and Inspire Art. This article analyses the implications of Cartesio in light of different scenarios of transfer of the registered and the real seat within the European Union. It assesses the interrelations of right of establishment and private international law rules for the determination of the law applicable to companies and concludes that the case law of the European Court of Justice after Cartesio, rather than providing for a coherent system of European company law, leads to arbitrary distinctions and significantly impedes the free movement of companies.

Access to Justice in Environmental Matters: Recent Developments

2012 ◽  
Vol 14 (2) ◽  
pp. 179-185
Author(s):  
Charles Poncelet
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
Access To Justice ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Recent Developments ◽  
The Right ◽  
Right Of Access

Abstract The right of access to justice in environmental matters constitutes one of the three pillars enshrined by the Århus Convention to which the European Union is a Party. This article will examine a recent judgment of the European Court of Justice. Indeed, the latter appears to play an important role in the implementation of this procedural right.

scholarly journals Right to be forgotten: european data imperialism, national privilege, or universal human right?

2020 ◽  
Vol 13 (1) ◽  
pp. 125-152
Author(s):  
Oskar J. Gstrein
Keyword(s):  
European Union ◽  
Data Protection ◽  
Freedom Of Expression ◽  
European Court Of Justice ◽  
The European Union ◽  
Court Of Justice ◽  
European Data ◽  
Right To Be Forgotten ◽  
European Court ◽  
The Right

The Digital Age has fundamentally reshaped the preconditions for privacy and freedom of expression. This transpires in the debate about a "right to be forgotten". While the 2014 decision of the European Court of Justice in "Google Spain" touches upon the underlying issue of how increasing amounts of personal data affects individuals over time, the topic has also become one of the salient problems of Internet Governance. On 24th September 2019 the European Court of Justice delivered its judgment in "Google vs CNIL" (C-507/17) which was supposed to clarify the territorial scope of the right. However, this judgment has raised doubts about the enforceability of the General Data Protection Regulation, and reveals the complex, multi-layered governance structure of the European Union. Acknowledging such complexity at a substantive and institutional level, this article starts by analysing the judgment. Additionally, to better understand the current situation in the European Union and its member states, recently produced draft guidelines by the European Data Protection Board are presented and discussed, as well as two judgments of the German Federal Constitutional Court. Subsequently, the European developments are put in international context. Finally, the insights from these sections are combined which allows to develop several conceptual ideas. In conclusion, it is argued that the right to be forgotten remains complex and evolving. Its success depends on effective multi-layer and multistakeholder interaction. In this sense, it has become a prominent study object that reveals potential venues and pitfalls on a path towards more sophisticated data protection frameworks.

Prospects for European Company Law After the Judgment of the European Court of Justice in Centros Ltd

1999 ◽  
Vol 2 ◽  
pp. 203-230
Author(s):  
Karsten Engsig Sørensen
Keyword(s):  
Member State ◽  
Company Law ◽  
European Court Of Justice ◽  
The European Union ◽  
Court Of Justice ◽  
European Company Law ◽  
European Court ◽  
Set Up ◽  
The Right ◽  
A Company

The ruling of the European Court of Justice in C-212/97 Centros Ltd v. Erhvervs- og Selskabsstyrelsen suggests that the right of establishment enshrined in Article 43 (ex Article 52) of the EC Treaty includes the right to incorporate a company in the EC Member State with the most favourable company laws. The case provides a platform for arguing that choice of place of incorporation within the European Union is at the absolute discretion of business operators, after which point branches may be set up in any other Member State. Even if all activities are conducted in the Member State where the branch is situated, rather than in the Member State of incorporation, no abuse of Article 43 will arise, and the Member State in which the branch is located may be in no position to impede the establishment of a business which has utilised the vehicle of a foreign company.

Prospects for European Company Law After the Judgment of the European Court of Justice in Centros Ltd

1999 ◽  
Vol 2 ◽  
pp. 203-230
Author(s):  
Karsten Engsig Sørensen
Keyword(s):  
Member State ◽  
Company Law ◽  
European Court Of Justice ◽  
The European Union ◽  
Court Of Justice ◽  
European Company Law ◽  
European Court ◽  
Set Up ◽  
The Right ◽  
A Company

The ruling of the European Court of Justice in C-212/97Centros Ltdv.Erhvervs- og Selskabsstyrelsensuggests that the right of establishment enshrined in Article 43 (ex Article 52) of the EC Treaty includes the right to incorporate a company in the EC Member State with the most favourable company laws. The case provides a platform for arguing that choice of place of incorporation within the European Union is at the absolute discretion of business operators, after which point branches may be set up in any other Member State. Even if all activities are conducted in the Member State where the branch is situated, rather than in the Member State of incorporation, no abuse of Article 43 will arise, and the Member State in which the branch is located may be in no position to impede the establishment of a business which has utilised the vehicle of a foreign company.

scholarly journals Transfer of Company's Seat - an Unfolding Story in Europe

2005 ◽  
Vol 36 (2) ◽  
pp. 359
Author(s):  
Carsten Frost
Keyword(s):  
Company Law ◽  
European Court Of Justice ◽  
The European Union ◽  
Freedom Of Establishment ◽  
Member States ◽  
European Company ◽  
Court Of Justice ◽  
European Company Law ◽  
European Court ◽  
Controversial Area

The harmonisation of company law has long been a goal of the European Union. Questions concerning the freedom of establishment have always been both a central and controversial area of European law. The European Court of Justice has decided in favour of the freedom of establishment of EU companies establishing themselves in other Member States in several cases since Centros in 1999, resulting in a discernible and consistent line of authority. The Court has made clear that Member States have to allow companies that have been incorporated in other Member States to freely enter their territory, according to the rules under which they have been formed in their state of origin. But the decisions have left other important questions open to doubt. The purpose of this article is to examine the consequences of these judgments, not only for European company law, but for related legal areas as well. The paper addresses this issue by giving a short overview on the freedom of establishment under the Treaty Establishing the European Community and on the existing European theories about the transfer of a company’s seat. It then analyses the European Court of Justice cases and their implications. The article argues that the pressure on national legislators that arises from the judgments helps to keep European company law attractive to investors. It concludes that an increased mobility of companies within Europe is necessary if Europe is to remain competitive on an international level, even if the price of this is the abolition of some traditional domestic legal principles.

Fighting for Authority: Strategic Actions of National High Courts in the European Union

2019 ◽  
Vol 12 (2-2019) ◽  
pp. 419-433
Author(s):  
Stefanie Vedder
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
Eu Law ◽  
The European Union ◽  
Principal Agent Theory ◽  
Strategic Actions ◽  
High Courts ◽  
Court Of Justice ◽  
European Court ◽  
Lower Courts

National high courts in the European Union (EU) are constantly challenged: the European Court of Justice (ECJ) claims the authority to declare national standing interpretations invalid should it find them incompatible with its views on EU law. This principle noticeably impairs the formerly undisputed sovereignty of national high courts. In addition, preliminary references empower lower courts to question interpretations established by their national ‘superiors’. Assuming that courts want to protect their own interests, the article presumes that national high courts develop strategies to elude the breach of their standing interpretations. Building on principal-agent theory, the article proposes that national high courts can use the level of (im-) precision in the wording of the ECJ’s judgements to continue applying their own interpretations. The article develops theoretical strategies for national high courts in their struggle for authority.

A Constitutional Court for Europe?

2004 ◽  
Vol 6 ◽  
pp. 1-34
Author(s):  
Anthony Arnull
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
European Council ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Order ◽  
Court Of Justice ◽  
European Court ◽  
The Future ◽  
Draft Constitution

The purpose of this article is to consider the effect of the draft Treaty establishing a Constitution for Europe on the European Court of Justice (ECJ). At the time of writing, the future of the draft Constitution is somewhat uncertain. Having been finalised by the Convention on the Future of Europe in the summer of 2003 and submitted to the then President of the European Council, it formed the basis for discussion at an intergovernmental conference (IGC) which opened in October 2003. Hopes that the text might be finalised by the end of the year were dashed when a meeting of the IGC in Brussels in December 2003 ended prematurely amid disagreement over the weighting of votes in the Council. However, it seems likely that a treaty equipping the European Union with a Constitution based on the Convention’s draft will in due course be adopted and that the provisions of the draft dealing with the ECJ will not be changed significantly. Even if either assumption proves misplaced, those provisions will remain of interest as reflecting one view of the position the ECJ might occupy in a constitutional order of the Union.

6. The preliminary ruling (Article 267 TFEU)

2018 ◽  
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Reference Procedure ◽  
Procedural Law ◽  
Court Of Justice ◽  
European Court

This chapter examines the procedural law of the European Union (EU), focusing on Article 267 of the Treaty on the Functioning of the European Union (TFEU). It explains that Article 267 is the reference procedure by which courts in member states can endorse questions concerning EU law to the European Court of Justice (CoJ). Under this Article, the Court of Justice of the European Union (CJEU) has the jurisdiction to provide preliminary rulings on the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union and on the interpretation of the Treaties.

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