CYIL vol. 12 (2021)

tomáš křivka CYIL 12 (2021) prohibition of discrimination on the basis of nationality. The role of case law was increased by the fact that the originally presupposed harmonisation through directive law was delayed for all the time till the beginning of European integration and has remained incomplete so far. This means that the CJEU did not determine the positively necessary content of national standards, but instead of this approach it outlined in specific cases, in a negative manner, what national rules are incompatible with primary law of the EU. The case-law development in the field of freedom of establishment represents the following selection of important decisions. Case 182/83 – Fearon 11 The business company “Robert Fearon and Company Limited” was the owner of a plot of land in the territory of Ireland which was expropriated in accordance with Irish national legal regulations. The Irish legislation provided for an exception according to which expropriation was not possible in case that the owner of the plot of land had their residence in the territory of that plot of land or in its close surroundings within 3 miles (or in case of companies if this condition is fulfilled by each of the persons who had a property share in such a company). The company could not make use of that exception because its associates were nationals of the United Kingdom, who failed to fulfil the condition of residence in the vicinity of the plot of land. For this reason, the company challenged the Irish national legislation due to a contradiction with Article 58 (at that time) of the Treaty establishing the European Economic Community (at present Article 49 of the TFEU), because in its opinion it was a discriminatory measure based on nationality, which prevented it from using the guaranteed freedom of establishment. Through the preliminary ruling procedure the case was referred to the CJEU, which assessed the issue in such a way that the case in question concerns a national situation because the plaintiff was an Irish company founded pursuant to Irish law and having its seat in Ireland, and therefore freedom of establishment does not apply to it due to absence of a cross-border element. Since the Irish national rule was not any discrimination according to nationality either, for it had the same impacts on both national and foreign entities, the CJEU did not find this rule illegal for the reason of a breach of prohibition of discrimination either 12 . That is why it is possible to state that in this case the CJEU inclined to determination of the company statute in accordance with the seat principle and refused application of the control theory. Case 270/83 – Commission v. France 13 In this case, the CJEU was assessing compatibility of French tax law with law of the European Communities valid at that time. A French legal regulation determined the same conditions for income tax for companies with their registered office in the territory of France and for companies with a registered office in another Member State of the EU. Nonetheless, as far as taxation of dividends is concerned, the shareholders who were French tax residents could enjoy a more advantageous regime enabling extensive tax deductions than the regime which was available to shareholders who were a French branch or a subsidiary of a foreign 11 Judgement of the Court of Justice of 6 November 1984. Robert Fearon and Company Limited v. Irish Land Commission . Case 182/83. 12 Judgement Fearon. Case 182/83. The last paragraph. 13 Judgement of the Court of Justice of 28 January 1986. Commission of the European Communities v. French Republic . Case 270/83.


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