Abuse of the Freedom of Establishment of Companies in the Internal Market – Analyzing the Impacts of the Mobility Directive
(2024) JAEM03 20241Department of Law
Faculty of Law
- Abstract
- The thesis discusses the abuse of the freedom of establishment of companies in the Internal Market and the change that the Directive of the European Parliament and of the Council (EU) 2019/2121 of 27 November 2019 amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions [2019] OJ L 321/1 (Mobility Directive) creates to that. The research question of this thesis is: How does the change created by the Mobility Directive in the assessment of abuse of the freedom of establishment of companies affect the development of the Internal Market? The thesis applies legal dogmatic method.
The thesis places the freedom of establishment of companies as a part of the Internal Market project. The European Court of... (More) - The thesis discusses the abuse of the freedom of establishment of companies in the Internal Market and the change that the Directive of the European Parliament and of the Council (EU) 2019/2121 of 27 November 2019 amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions [2019] OJ L 321/1 (Mobility Directive) creates to that. The research question of this thesis is: How does the change created by the Mobility Directive in the assessment of abuse of the freedom of establishment of companies affect the development of the Internal Market? The thesis applies legal dogmatic method.
The thesis places the freedom of establishment of companies as a part of the Internal Market project. The European Court of Justice (Court) has an important role in defining the direction of the Internal Market and the effect of its decisions is enhanced by the phenomenon called path dependency. One role of Member States seems to be to be actors that protect variety of national interests. Before the issuance of the Mobility Directive the abuse of the freedom of establishment of companies was assessed by applying the principle of prohibition of abuse of law. In the area of freedom of establishment of companies, the situations in which abuse could be found seem to be very few due to the narrow interpretation of the principle. This can be seen as the Court choosing the interpretation of EU law that best supports the free movement in the Internal Market.
The Mobility Directive brings changes to the assessment of abuse of the freedom of establishment of companies. The Mobility Directive sets forth an ex-ante assessment process for cross-border operations of companies. National authorities are in a central role in this assessment process as they can decide not to issue the needed pre-operation certificate if the cross-border operation is set up for abusive or fraudulent purposes.
The thesis concludes that one effect of this change in the law might be a slowing effect on the economic integration of the Internal Market. When assessed under the freedom of establishment, cases ending up to the Court might have contributed to the economic integration of the Internal Market due to the effects of meta-teleological interpretation and path dependency. It is possible that now when there is a harmonized process for the assessment of the abusive or fraudulent purposes, cases do not end up so often to the Court. This combined with the possible inability of the national authorities to conduct the assessment in a unified manner and them probably not applying the meta-teleological interpretation might cause challenges for exercising the freedom of establishment. However, the assessment of national authorities might be beneficial for the social dimension of the Internal Market. Also, the harmonized process for the assessment of abusive or fraudulent purposes brings it certainly to the scope of the EU law. (Less)
Please use this url to cite or link to this publication:
http://lup.lub.lu.se/student-papers/record/9159425
- author
- Toivettula, Anna-Sofia Amanda LU
- supervisor
- organization
- course
- JAEM03 20241
- year
- 2024
- type
- H2 - Master's Degree (Two Years)
- subject
- language
- English
- id
- 9159425
- date added to LUP
- 2024-06-25 12:19:15
- date last changed
- 2024-06-25 12:19:15
@misc{9159425,
abstract = {{The thesis discusses the abuse of the freedom of establishment of companies in the Internal Market and the change that the Directive of the European Parliament and of the Council (EU) 2019/2121 of 27 November 2019 amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions [2019] OJ L 321/1 (Mobility Directive) creates to that. The research question of this thesis is: How does the change created by the Mobility Directive in the assessment of abuse of the freedom of establishment of companies affect the development of the Internal Market? The thesis applies legal dogmatic method.
The thesis places the freedom of establishment of companies as a part of the Internal Market project. The European Court of Justice (Court) has an important role in defining the direction of the Internal Market and the effect of its decisions is enhanced by the phenomenon called path dependency. One role of Member States seems to be to be actors that protect variety of national interests. Before the issuance of the Mobility Directive the abuse of the freedom of establishment of companies was assessed by applying the principle of prohibition of abuse of law. In the area of freedom of establishment of companies, the situations in which abuse could be found seem to be very few due to the narrow interpretation of the principle. This can be seen as the Court choosing the interpretation of EU law that best supports the free movement in the Internal Market.
The Mobility Directive brings changes to the assessment of abuse of the freedom of establishment of companies. The Mobility Directive sets forth an ex-ante assessment process for cross-border operations of companies. National authorities are in a central role in this assessment process as they can decide not to issue the needed pre-operation certificate if the cross-border operation is set up for abusive or fraudulent purposes.
The thesis concludes that one effect of this change in the law might be a slowing effect on the economic integration of the Internal Market. When assessed under the freedom of establishment, cases ending up to the Court might have contributed to the economic integration of the Internal Market due to the effects of meta-teleological interpretation and path dependency. It is possible that now when there is a harmonized process for the assessment of the abusive or fraudulent purposes, cases do not end up so often to the Court. This combined with the possible inability of the national authorities to conduct the assessment in a unified manner and them probably not applying the meta-teleological interpretation might cause challenges for exercising the freedom of establishment. However, the assessment of national authorities might be beneficial for the social dimension of the Internal Market. Also, the harmonized process for the assessment of abusive or fraudulent purposes brings it certainly to the scope of the EU law.}},
author = {{Toivettula, Anna-Sofia Amanda}},
language = {{eng}},
note = {{Student Paper}},
title = {{Abuse of the Freedom of Establishment of Companies in the Internal Market – Analyzing the Impacts of the Mobility Directive}},
year = {{2024}},
}