Primary establishment of companies: revising case law after Überseering

Abstract

Similarly to other freedoms the freedom of establishment provides a broad prohibition of restrictions. This Article analyses the decisions of the European Court of Justice (ECJ) on the freedom of establishment for companies, detailing definition of restriction, the conditions for justification of restriction. The special attention is drawn to the forms of establishment - primary and secondary as well as the stages of establishment. The Article analyses the unwillingness of the Court at least for certain period of time to grant the right of primary establishment to legal persons. In it's two decisions Daily Mail and Uberseering the ECJ analyzed the right of primary establishment, however, even in these decisions the Court does not confirm the definition of primary establishment that is widely accepted by the legal scholars and that is said to be derived from EC art. 43 par 2 and covers the transfer of central administration. It is claimed that after decisions in Uberseering and Inspire Art the ECJ has lifted the veil as regards the interpretation of the right of primary establishment under the Treaty establishing European Community (EC Treaty).