L'évolution du principe de liberté d'établissement en droit communautaire : un mouvement de libéralisation depuis l'arrêt Cartesio

The principle of the freedom of establishment gives companies established in the various Member states of the European Union the possibility to develop their cross-border activities. After the principle was enshrined by the Treaty of Rome, no secondary law on the recognition of companies was enacted to implement this freedom. Texts were limited to planning references to national laws and established a principle of neutrality with regard to the connecting systems of Member states. The latter boils down to two different connecting factors : the « real seat » theory and the « incorporation » theory, which generate difficulties for the application of the freedom of establishment. Problems arise not only within the context of transfers of the company?s seat, but also in the creation ex nihilo of a secondary establishment. Over the last two decades, it has been left to the community judge to specify the modalities of application of the freedom of establishment. At first, the judges in Luxembourg gave Member states a certain amount of flexibility. However, the Court of Justice then committed to greater liberalism by regularly recalling that national rules should not create an obstacle to the exercise of the freedom of establishment. In 2008, the Cartesio ruling went further by asserting the right for a company changing the applicable law to transfer its seat to another State without the need for dissolution or preliminary liquidation. This has extended the freedom of establishment for migrant companies. A balance between the private international law of Member states and exercise of freedom of establishment was thereby created, but the absence of uniformity in community rules and the coexistence of divergent national rules have engendered law shopping within the European Union and disputes around the conditions for implementation of this freedom between countries of origin and host countries.