CYIL vol. 12 (2021)

tomáš křivka CYIL 12 (2021) Member State preventing them from doing so, but they cannot, by virtue of EU law, transfer their actual seat to another EU Member State if it is in contradiction with national law of the domestic Member State, in which their original seat is situated. This means that within the framework of using secondary freedom of establishment, the general principle of prohibition of discrimination on the basis of nationality according to Article 18 of the TFEU applies, and foreign companies founded in another Member State of the EU must not be subjected to any different treatment in comparison to companies incorporated in the domestic Member State of the EU. On the other hand, however, a company which would like to make use of the primary right of establishment must respect national legislation of the Member State in which it was founded. In consequence of limitation of the possibility of a transfer of the seat of a company from one Member State to another one it was possible to register fostering of certain isolation of national company law in individual EU Member States 19 and support of the seat principle. It is, however, essential to emphasise that the above-cited decision in the Daily Mail case was dealing with the issue of compatibility of the national legislation of the Member State in which the company was already incorporated and from which it wanted to transfer its actual seat to another EUMember State with European law (hereinafter referred to as “outgoing situation”). The decision did not, however, concern the issue of a contradiction between European law and national legislation of the destination EU Member State where the company would like to transfer its seat (hereinafter referred to as “incoming situation”). A different situation, where the matter conversely concerned assessment of compatibility of legislation of the destination EU Member State with European law (incoming situation), was dealt with in several subsequent years, when the CJEU issued some key decisions abandoning the above-mentioned isolation approach to the benefit of removal of potential barriers for freedom of establishment (and therefore to the benefit of the incorporation principle). This involves in particular the decisions in such cases as Centros, Überseering and Inspire Art. Nevertheless, even in these cases the matter concerned only passive effects of EU law through the Court control of conformity of national legislation with the internal market rules (possible exclusion of application of contradictory national legislation), but there was not any active definition of any minimum standards of national legislation which was to be possibly defined in harmonisation directives according to the CJEU. Case C-212/97 – Centros 20 In the case known as Centros, the CJEU was dealing with secondary freedom of establishment when the matter concerned the issue of admissibility of registration of a company branch in a Member State of the EU in the situation when the parent company incorporated in another Member State did not carry on any business activity. Conversely, it intended to perform all business activities just through its foreign branch. The Centros Ltd. company was founded by two nationals of Denmark who wanted to use markedly more liberal legal regulations of English law, which did not specify any requirements for subscription and paying up of registered capital 21 with regard to foundation of a private limited company. On the other hand, the Danish legislation specified, for foundation of 19 For more information see NETUŠILOVÁ, P., KŘIVKA, T. Corporate mobility in the EU in Firma a konkurenční prostředí [Company and competitive environment], 2006. Brno: 2006. IBSN 80-7302-113-7. p. 54. 20 Judgement of the Court of Justice of 9 March 1999. Centros Ltd v. Erhvervs- og Selskabsstyrelsen . Case C-212/97. 21 Judgement: Centros. Case C-212/97. Par. 3.


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