CYIL vol. 12 (2021)

CYIL 12 (2021) IMPACTS OF THE CJEU CASE LAW ON REGULATORY COMPETITION … for releasing the rules for freedom of establishment and cross-border mobility of these non- business legal entities from a party, then it is rather on the part of the CJEU case law. 4. Conclusion From the very beginning of the European integration at the end of the 1950s it has been planned to finalise creation of freedom of establishment through a complete directive law system, which would harmonise a heterogeneous system of regulation of companies in individual Member States. Only several years later it was possible to welcome a primary idea of a European public limited-liability company whose legal personality would be derived from European law and not from a national legal order. On the other hand, however, one cannot ignore the fact that the results actually achieved by far do not correspond to original plans of the EU. It is a fact that it has become clear that neither directive harmonisation nor the way of a uniform European regime of multinational companies by way of regulations are easy to achieve, given different interests of the Member States with different legal doctrines. In any case it is quite obvious that in spite of the long years of calling for removal of obstacles preventing legal entities from cross-border operations, there are at the same time also very strong centrifugal trends, which conversely defend individual national concepts and legal doctrines and refuse their abandonment to the benefit of a common uniform regime. This applies to both harmonisation directives and later attempts of creation of multinational legal entities. The result is the still unfinished plan of 14 harmonisation directives concerning corporate law or halfway multinational solutions, such as European company (SE) 49 or European cooperative society (SCE). 50 Any more radical proposals were fully blocked on the Council by the Member States. 51 An essential progress can be perceived in the gradual change in the original focus of the Union regulation of multinational legal entities from exclusively business corporations also to other “non-business” entities, although none of the legislative proposals for creation of a multinational legal entity of non-profit-making or public service nature has been adopted. Just the very difficult adoption of any legislative proposals dealing with harmonisation of national laws or creating new multinational legal forms of corporations led to the situation when the most important role in the area of fostering the really effective freedom of establishment of legal entities was played by the CJEU, which was supplementing especially the missing planned directive harmonisation of freedom of establishment for many years through its decisions. Despite the original unambiguity of some decisions, the CJEU gradually tended to enforce freedom of establishment for incoming foreign companies even in the countries whose legal order is established on the seat principle. The hopes that were placed 49 See 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. 50 See 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. 51 For the time being the last unsuccessful attempt of creation of a multinational form of a business company, which was the Proposal for a Council Regulation on the statute for a European private company from 2008. See Proposal for a Council Regulation on the statute for a European private company COM (2008) 396 final. Available online from: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2008:0396:FIN [citation of 30 June 2020].

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