Company Law as a Restriction to Free Movement – Examination of the Notion of 'Restriction' Using Company Law as the Frame of Reference

Abstract

Focusing on recent judgments from the Court of Justice of the European Union this article investigates how the notion of ‘restriction’ – which is the first step in examining whether there is an infringement of the free movement rights – is used in cases involving company law measures. There is evidence that non-discriminatory obstacles to free movement found in company law can be restrictions. However, recent cases show that the Court may be willing to apply a more restrictive approach where only non-discriminatory measures that have a qualified deterrent effect may constitute restrictions. Furthermore, the article examines when measures undertaken by private parties – for instance when adopting articles of association – may constitute restrictions and finally the relationship between secondary EU-law and the free movement right is discussed.