European Commission send Czech Republic and Latvia request to withdraw rules infringing freedom of establishment

This is not entirely about company law but interesting none the less to note one of the exceptions available to Member States in regards to freedom of establishment rules which prohibit it.

Under the Treaty of the Functioning of the European Union (TFEU) Chapter 2 Article 49 provides for Freedom of Establishment in the European Union (EU). It prohibits restrictions on nationals of the EU setting up companies (see Art 54), branches, agencies and subsidiaries in other Member States. It includes the right to take up and pursue activities as a self-employed person.

Article 51 does allow States to disregard this section though, 'so far as an given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority'.

The Czech Republic and Latvia had certain restrictions relating to notaries and argued that they had judicial powers bringing them within this exception. The EC maintain that despite this, their notaries do not have the power to rule on disputes. The Commission took the view that such participation in public authority did not justify their nationality requirement. See the note from the EU about this action as well as their main decisions from November here.  

Updates and Developments in Regulatory Competition

Having not blogged in a few weeks I thought I should post something.

Teaching has started down at Hertfordshire and as expected every minute is being filled with meetings and class preparation. I am currently teaching on the LL.B in Company, Commercial and International Commercial alongside the LL.M in Company. For Company Law I have been made module organiser, albeit after the module guide went out to students so including areas such as regulatory competition are very much on an ad hoc basis at the moment.

In regards to regulatory competition a new case has emerged from the ECJ (Vale Costruzioni) over the last couple of months that effectively allowed a transfer of seat without restrictions using national transformation laws as a cross-border conversion. See here for overview before the case was decided. The decision can be seen here. Although I do not know too much of the exact details it seems the court has allowed an Italian company to use the Hungarian Transformation Act to transform itself in to a Hungarian company. It is quite a surprise that the ECJ reached this conclusion despite my own recent observations that the ECJ would be unlikely to depart easily from its stance on restricting movement due to shareholder and creditor protection and its own ability to establish rules on cross border transfers. However, having spoken recently to a professor and judge in Germany recently, Prof Ries, who is visiting currently at the University of Hertfordshire, he informs me that he has not heard of any instances of companies taking advantage of this new ruling. By any means it is certainly an interesting development.

As to the thesis.... The thesis is almost complete! Just an introduction and conclusion to brush up then the full draft has to be dealt with by my supervisors. With any luck it will all be done and dusted by February next year.