An examination of the Treaty provisions on freedom of establishment, and the interpretation that has been given, it is possible to draw some important information about its scope.

First, the art. 48, paragraph 1, identifying the active subjects of the right of establishment refers to companies that:

a) are formed in accordance with the law of a Member State;

b) have their registered office, central administration or principal place of business within the Community.

The two above conditions must be met cumulatively, with the result that, on the one hand, are excluded from the right of establishment companies constituted under the law of a non-EU country; on the other, are also excluded companies that, while established in a Member State, both have their registered office, the actual location and the main object of activity outside the European Community. In other words as is clear from the 1961 General Programme for the abolition of restrictions on freedom of establishment enjoy the freedom of establishment only companies that have an actual, continuous link with at least one of the Member States of the Community.

Second, art. 43 of the Treaty is possible to single out a primary right of establishment (right of establishment and operation of businesses and in particular companies, under the conditions defined by the law of the country of establishment for its own citizens), and the right of establishment secondary (right to opening of agencies, branches or subsidiaries). Exceeded with the ruling Überseering uncertainty as to the true extent of Centros (which formally appears limited to the issue of the establishment of branches), today may well be maintained that the provisions of the law of the Member State in whose territory of a company incorporated in another Member State, place is a branch that the principal place of business, must not in any way hinder the freedom of establishment, and can not ignore neither the legal personality and capacity of the company, nor its organization as governed by the law of the State of origin.

Likewise, this time from the point of view of the state of origin of the company, are considered illegitimate restrictions, substantive or tax, which in any way limit or compress the right of the company to settle in another Member State; stops only in the current stage of development of Community law and the harmonization of national laws the prerogative of the State of origin of the company of striking down the legal status of domestic law, following the transfer of the registered office abroad.

Obviously, the full implementation of the above principles clashes with the imperfect harmonization of national laws, which sometimes (as is, for example, the case of Germany) do not regulate, rather disown the phenomenon of the transfer of the registered office or from abroad . And this may, in practice, prevent the effective exercise of freedom of establishment, at least in the form of the transfer of the registered in another Member State, and just in terms of these assumptions will justify the provision of art. 293 of the Treaty, which refers to negotiations between the Member States the effective recognition of the company, the retention of legal personality in the event of transfer of their seat from one State to another, and the possibility of mergers of companies subject to laws of different countries.
 
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