No Freedom of Emigration for Companies?

33 Pages Posted: 21 Jan 2008

See all articles by Wolf-Georg Ringe

Wolf-Georg Ringe

University of Hamburg - Institute of Law & Economics; University of Oxford - Faculty of Law; European Corporate Governance Institute (ECGI)

Abstract

The freedom of establishment for companies (Articles 43 and 48 EC Treaty) includes the right to choose the company's seat in any Member State of the EC. However, in recent years, the European Court of Justice (ECJ) seems to have interpreted those articles as being relevant only to the recognition of foreign companies, whereas the right to leave the company's country of incorporation has not come within the scope of this freedom. The purpose of this paper is to question this distinction between "departure" and "arrival". It is argued that the ECJ's point of view is inconsistent in itself, creates logical problems and is incoherent in light of its interpretation of other fundamental freedoms. Arguably, the Court has created a "trap" for itself by insisting on the differentiation between "exit" and "entry" and by putting much effort into maintaining this differentiation over the last years. The article ends with an appeal to reassess the application of the freedom of establishment to companies and to find the courage to overcome the artificial differentiation.

Keywords: corporate mobility, freedom of establishment, Centros, exit/entry distinction

JEL Classification: K22, G34, H73

Suggested Citation

Ringe, Wolf-Georg, No Freedom of Emigration for Companies?. European Business Law Review, Vol. 16, No. 3, 2005. Available at SSRN: https://ssrn.com/abstract=1085544

Wolf-Georg Ringe (Contact Author)

University of Hamburg - Institute of Law & Economics ( email )

Johnsallee 35
Hamburg, 20148
Germany
+49 40 42838 7787 (Phone)
+49 40 42838 6794 (Fax)

HOME PAGE: http://www.ile-hamburg.de

University of Oxford - Faculty of Law

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

HOME PAGE: http://www.law.ox.ac.uk/people/wolf-georg-ringe

European Corporate Governance Institute (ECGI) ( email )

c/o ECARES ULB CP 114
B-1050 Brussels
Belgium

HOME PAGE: http://ecgi.global/users/wolf-georg-ringe

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