Chapter 2: Latest ECJ Rulings on the Freedom of Establishment in the Context of EC Company Law Developments
2.1 DEVELOPMENTS OF EC COMPANY LAW REGARDING COMPANIES GOVERNED BY THE LAWS OF MEMBER STATES: OVERVIEW Like EC corporate tax law and, in general, all areas of EC law, EC company law has been developed, on the one hand, by the Community institutions’ legislative action, on the other hand by the case law of the ECJ. Most of the EC legislation in the area has assumed the form of Directives, based on a provision contained in the Treaty’s Chapter on the right of establishment (Article 44, second paragraph, let. (g)) which requires the EC institutions to coordinate to the necessary extent the safeguards required by Member States for the protection of companies’ members and others, with a view to making such safeguards equivalent throughout the Community. The Directives issued for the purpose and aimed, ultimately, at facilitating the exercise by companies and firms governed by the law of any Member States of the right of establishment within the Community granted by Articles 43 and 48 of the Treaty, have affected several areas of national company laws. A First Directive, issued in 19681 and covering public limited companies, private limited companies and some limited partnership forms,2 dealt with disclosure, validity of obligations entered into by a company and nullity of a company; a Second Directive issued in 19763 and covering public limited companies dealt with their formation and with the maintenance and alterations of their capital; a Third Directive in 1978,4 covering public limited companies, regulated their mergers within...
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