Legal sources

The ability to carry out a business by acquiring the instrument (company) considered most suitable to the project company is, within the EU, legitimized by the cardinal principles of Community law.

They consider, first, the rules of the Treaty establishing the European Community. Article. 43, paragraph 1, prohibits restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State, and extends the discipline of agencies,

branches or subsidiaries (called right of secondary establishment) 3. The same art. 43, paragraph 2, states that freedom of establishment shall include, among other things, the establishment and operation of companies and

in particular companies, under the conditions defined by the law of the country of establishment for its own citizens (so-called right of primary establishment).

Under Article. 48 of the EC Treaty, “companies incorporated under the law of a Member State and having their registered office, central administration or principal place of business within the Community shall, for the purposes of this Chapter, to natural persons who are nationals of Member States. For companies mean companies under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit. “

In appearance the practical application mentioned law is grounded in a series of judgments of a Court of Justice, including the Centros judgment of 9 March 1999 in Case No. 212/97. (The judgments of the Court of Justice of essential importance for the interpretation of Community law. The Court is responsible, in fact, the interpretation of preliminary rulings of the Treaty rules and other Community sources – art. 234 of the EC Treaty) .

In its judgment the Court has had occasion to state:

1) – that it is legitimate for a Community company, constituted in a Member State and exercise, however, only in another Member State of its activities;

2) – that that fact is not in itself sufficient to constitute an abuse of Community law, such as to justify restrictions on the freedom of establishment by the host state;

3) – that, in particular, can not be refused registration of a branch in a Member State other than that of the constitution, by the mere fact that the latter is not no activity by the company;

4) – that circumvention of the provisions of a Member State which provide for a minimum capital of the company does not justify restrictions on the freedom of establishment under Article. 46 of the Treaty (ie for reasons of public policy); on the one hand, in fact, the creditors of the host State would find themselves in a similar situation if the company actually pursued his principal in the state constitution, and only secondarily was operating in the State of the effective head office; on the other hand, the protection of creditors and third parties is sufficiently pursued by the rules that protect, in fact, the information for these subjects (fourth EC directive, no. 78/660 of 25 July 1978 on the accounts annual of certain types of companies; eleventh Directive EC no. 89/666 of 21 December 1989 on the advertising of branches), and then by the possibility, for those creditors, to know the law governing the company and precostituirsi, if necessary , specific guarantees;

5) – that national measures liable to hinder or discourage the exercise of freedom of establishment for reasons of general interest must meet, according to the case, four conditions: they must apply in a non-discriminatory manner, be justified by overriding reasons of interest public, be suitable for securing the attainment of the objective pursued and not go beyond what is necessary to achieve this; these conditions are not met in the present case;

6) – that is also possible to use illegally and fraudulently Community law in order to escape the empire of a national law (with the possibility therefore of the state where there is the real seat of the company to take all appropriate measures to prevent and penalize fraud); but the mere fact of forming a company in a Member State and then exercise the commercial activity, also by means of a branch in another Member State is not in itself constitutes abuse of Community law.

These conclusions were confirmed by the judgment Überseering of 5 November 2002, case no. 208/2000, which also stated that:

1) – the art. 293 of the EC Treaty does not constitute a reserve of competence in favor of the United States in relation to the recognition of companies and the retention of its legal personality, and involves the need for negotiations between the United States only “as appropriate“, ie in cases in which the provisions of the Treaty does not allow you to achieve the objectives of the same; it is, in other words, of conventions that can facilitate the realization of freedom of establishment, but in their absence the exercise of that freedom can not however be conditional;

2) – then the Member State in which the company intends to transfer its real seat can not ignore the legal personality of the company’s home, and therefore its ability to substantive and procedural law, even if that company does not comply, in its organization, the law of the State where the seat is to be effective;

3) – are consequently illegitimate, from the community point of view, the provisions of national law (such as Germany) requiring, in such cases, the company has moved its headquarters to recover actual (or adapt its statutes) in accordance the provisions of the host State;

4) – the circumvention of the mandatory rules of the State of the actual location (such as those on minimum capital, legislation on groups, on the co-management by workers), if you can – in certain circumstances and conditions – justifying restrictions on the freedom of establishment, in no case justify the denial of legal personality and capacity of the institution;

5) – the acquisition by one or more natural persons residing in a Member State of shares of a company incorporated in another Member State are governed by the free movement of capital, when as a result of this acquisition does not confer such people control the company, while otherwise are governed by the freedom of establishment.
 
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