The Mysteries of Freedom of Establishment after Cartesio

International & Comparative Law Quarterly, Vol. 59, No. 2, 2010

21 Pages Posted: 11 Feb 2009 Last revised: 26 Nov 2013

See all articles by Carsten Gerner-Beuerle

Carsten Gerner-Beuerle

University College London - Faculty of Laws; University of Notre Dame - Notre Dame Law School; European Corporate Governance Institute (ECGI)

Michael Schillig

King's College London - The Dickson Poon School of Law

Date Written: February 11, 2009

Abstract

The judgement 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 43, 48 EC) that remained after previous landmark decisions such as Centros, Uberseering, and Inspire Art. The 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.

Keywords: right of establishment, incorporation theory, real seat theory, Cartesio, Centros, Uberseering

JEL Classification: K22

Suggested Citation

Gerner-Beuerle, Carsten and Schillig, Michael, The Mysteries of Freedom of Establishment after Cartesio (February 11, 2009). International & Comparative Law Quarterly, Vol. 59, No. 2, 2010, Available at SSRN: https://ssrn.com/abstract=1340964

Carsten Gerner-Beuerle (Contact Author)

University College London - Faculty of Laws ( email )

Bentham House
4-8 Endsleigh Gardens
London, WC1E OEG
United Kingdom

HOME PAGE: http://https://www.ucl.ac.uk/laws/people/carsten-gerner-beuerle

University of Notre Dame - Notre Dame Law School ( email )

Eck Hall of Law
Notre Dame, IN 46556
United States

European Corporate Governance Institute (ECGI) ( email )

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels
Belgium

HOME PAGE: http://https://ecgi.global/users/carsten-gerner-beuerle

Michael Schillig

King's College London - The Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

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