Keywords
Summary

Keywords

1. Freedom of movement for persons – Freedom of establishment – Provisions of the Treaty – Scope – Cross-border mergers – Included

(Art. 43 EC)

2. Freedom of movement for persons – Freedom of establishment – National provision preventing registration of cross-border mergers in the national commercial register – Restriction on the freedom of establishment – Justification – Conditions

(Arts 43 EC and 48 EC)

Summary

1. The right of establishment covers all measures which permit or even merely facilitate access to another Member State and the pursuit of an economic activity in that State by allowing the persons concerned to participate in the economic life of the country effectively and under the same conditions as national operators.

Cross-border merger operations, like other company transformation operations, respond to the needs for cooperation and consolidation between companies established in different Member States. They constitute particular methods of exercise of the freedom of establishment, important for the proper functioning of the internal market, and are therefore amongst those economic activities in respect of which Member States are required to comply with the freedom of establishment laid down by Article 43 EC.

(see paras 18-19)

2. Articles 43 EC and 48 EC preclude registration in the national commercial register of the merger by dissolution without liquidation of one company and transfer of the whole of its assets to another company from being refused in general in a Member State where one of the two companies is established in another Member State, whereas such registration is possible, on compliance with certain conditions, where the two companies participating in the merger are both established in the territory of the first Member State.

Such a difference in treatment can be permitted only if it pursues a legitimate objective compatible with the Treaty and is justified by imperative reasons in the public interest, such as protection of the interests of creditors, minority shareholders and employees, and the preservation of the effectiveness of fiscal supervision and the fairness of commercial transactions. Furthermore, application of such a difference in treatment must be appropriate for ensuring the attainment of the objectives pursued and not go beyond what is necessary to attain them.

(see paras 23, 28, 31, operative part)