ZAKŁADANIE ODDZIAŁU PRZEZ SPÓŁKĘ ZAGRANICZNĄ W ŚWIETLE WYROKU TRYBUNAŁU SPRAWIEDLIWOŚCI W SPRAWIE INSPIRE ART
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Date
2004
Authors
Napierała, Jacek
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Wydział Prawa i Administracji UAM
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ESTABLISHING A COMPANY DIVISION BY A FOREIGN COMPANY IN THE LIGHT OF COURT OF JUSTICE’S DECISION IN THE INSPIRE ART CASE
Abstract
The subject of this paper is the Court of Justice’s decision in the Inspire Art case on 30th
September 2003, in which the Court took position in three fundamental issues. First, the
freedom of establishing a company benefits only those companies, which were established in
one o f the Community countries only with a view to establish a division in another
Community country. Second, in the Court’s view, the protection standard set by a relevant
provision of a directive should be defined through the provision’s interpretation, not by
following the rule of minimal standard; imposing more duties on a foreign company than
intended by the 11th directive was treated by the Court as an infringement of the freedom
of establishing companies per se. Third, limitation of the freedom of establishing a company
can be justified by urgent needs of public interest, such as: protection of the interests
of minority shareholders, employees, inland revenues and, what is particularly important
in Inspire Art case analysis - protection of creditors’ interests. Measures taken by the
Community to protect these interests are justified as long as they are not discriminatory,
are adequate and proportional. The rules demanding from foreign companies a minimal
venture capital equal to that of domestic companies do not meet these criteria.
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 66, 2004, z. 2, s. 57-75.