CYIL vol. 12 (2021)
tomáš křivka CYIL 12 (2021) intent that also non-profit-making legal entities can carry on side business activities which could be protected by the freedom of establishment. 4 Freedom of establishment is applied in the situation when a particular person doing business intends to place their primary or secondary seat (branch) in the territory of another state for the purpose of business activities. Although no unambiguous definition of establishment implies from the TFEU, on the basis of the CJEU decision in the Factortame case, the conclusion generally accepted at present is that the term “establishment” means a long-term or permanent “ performance of business activities through a permanent facility (enterprise) in another Member State for an indefinite time period ”. 5 It is therefore just the feature of permanency, regularity and continuity of performance of given activities in a particular Member State of the EU that distinguish freedom of establishment from free movement of services, which is, conversely, characterised by short-term, irregular or occasional performance of similar activities, as explained by theCJEU in theGebharddecision 6 . The general provision of article 49 of the TFEU is completed by the subsequent article 50, which empowers the EU to adopt directives that should lead to further harmonisation of national laws in the field of freedom of establishment. Although the above-mentioned rule was included already in the Treaty establishing the European Economic Community 7 from 1957 and harmonisation measures were to be originally completed by the end of 1969, in fact the process of adoption of this directive law system was rather lengthy and this harmonisation remains still incomplete at present. A key role was played by the activist case law of the CJEU, which complemented the non-existing harmonisation measures to the benefit of a broad interpretation of the freedom of establishment in the EU. The decision-making practice of the CJEU thus limited, to a considerable extent, some traditional doctrines applied within the framework of the EU Member States (in particular the so-called principle of incorporation versus the seat principle). The decision-making practice of the CJEU then influenced also adoption of legal acts concerning foundation of new multinational legal forms of companies. 8 In the situation of a relatively clear case-law refusal of absolute application of appropriate national doctrines in the field of freedom of establishment of foreign legal entities it was quite obvious that initiatives of some Member States against creation of such multinational legal forms did not make much sense anymore. The aim of this paper is just to evaluate impacts of the CJEU case law on regulatory competition in the field of freedom of establishment. 4 Cf. e.g. the Judgement of the Court of Justice of 14 September 2006. Centro di Musicologia Walter Stauffer v. Finanzamt München für Körperschaften. Case C-386/04. Besides, the Judgement of the Court of Justice of 27 January 2009. Persche Hein Persche v. Finanzamt Lüdenscheid . Case C-318/07. 5 Judgement of the Court of Justice of 25 July 1991. The Queen v. Secretary of State for Transport, ex parte Factortame Ltd and others . Case C-221/89. Par. 20. 6 Judgement of the Court of Justice of 30 November 1995. Gebhard v. Cosiglio dell´Ordine degli Avvocati e Procuratori di Milano . Case C-55/94. Par. 27. 7 See the original wording of Article 54 of the Treaty establishing the European Economic Community. 8 In particular a European Company (SE) founded on the basis of Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE) and Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees, or a European cooperative society founded on the basis of Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European cooperative society (SCE), and Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European cooperative society with regard to the involvement of employees, as well as other corporations.
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