Incorporation theory deals with
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital. Article 50 TFEU foresees harmonisation to accompany the principal freedom. However the Union legislator and the Community legislator before it has not got all that far.
The Incorporation Doctrine Harms Religious Freedom
In Daily Mail, the Court gave a lot of leeway to Member States on the outbound corporate migration side: the home Member States have a lot of freedom in determining the consequences of corporate migration. In Cartesio , the Court stuck to its perceived dichotomy between in- and outbound migration, despite a plea by Maduro AG to approximate the two.
The court then added an obiter in para That obiter got many excited, and confused: do the final words of para imply that the host Member State can choose whether to accept such re-incorporation, or rather, does Article 49 TFEU imply that the host Member State has no choice but to accept such re-incorporation? In Cartesio, a company incorporated in Hungary wanted to change its operational headquarters to Italy but keep Hungarian incorporation. Hungarian corporate law does not allow for this: a company can keep its Hungarian incorporation but only if it moves headquarters within Hungary.
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Otherwise it has to dissolve in Hungary and incorporate elsewhere. A procedure which is perfectly possible for Hungarian companies, within Hungary: in particular, by changing company form.
The obiter in Cartesio led to speculation whether the host Member State is under a duty to co-operate with such conversion as opposed to Cartesio, which sought to establish the limits to obstruction by the home Member State. If nationally incorporated companies may convert and transfer all rights and obligations to the new company, any restrictions on foreign companies employing this mechanism come within the reach of Article 49 TFEU. There may be reasons for the host Member State to restrict this possibility in specific instances for reasons of e.
The host Member State must therefore open the possibility of conversion to foreign registered companies, only if it has such conversion possibility in its own corporate laws.
Any conditions imposed by national law documentation, proof of actual economic continuity of operations etc may also be imposed on these foreign companies, provided this is done in a transparent, non-discriminatory fashion, and in a way which does not jeopardise the actual freedom of establishment.
It is interesting to note that the Court recycled as it did in Cartesio , the very core Daily Mail quote which explains its hesitation effectively to harmonise corporate law itself, through too drastic an interpretation of Article 49 TFEU:. A boutique blog and legal practice on niche areas of the law.
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Build a city of skyscrapers—one synonym at a time. Constitution that are fundamental to and implicit in the concept of ordered liberty are incorporated into the Fourteenth Amendment's due process clause — compare total incorporation. Learn More about se lec tive incorporation.
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