Kosjenka Dumančić

Freedom of Establishment: VALE Case—Direction for New Rules: Dreams or Reality?

Freedom of establishment, as one of the fundamental market freedoms at European market, is fully achieved within natural persons while, when discussing the freedom of establishment for companies, there are still some doubts. The main problem arises from the fact that different Member States apply different principles to determine which company law applies to the company and that different restrictions of the freedom of establishment for companies exist because of the discrepancies between the Member States’ company laws. These problems brought up the idea of the so-called Fourteenth Company Law Directive, whose goal should be the regulation of the cross-border transfer of the companies’ seat. At the moment, the most useful way of regulating that question is still the European Court of Justice’s (ECJ’s) case law. The newly established companies do not face right of establishment problems, while they may be incorporated in any Member State. They will be incorporated in the country where they think that the corporate regime is the most advantageous. Once the company is registered, freedom of establishment guarantees the possibility of companies’ seat cross-border transfer. Authors analyze the last ECJ judgment in the area of company law and freedom of establishment—the judgment in the VALE case. The importance of the judgment is obvious through its introduction of solutions contained in recommendations for the Fourteenth Company Law Directive. The VALE judgment is certainly one step closer to this Commission initiative.

CROSS-BORDER TRANSFER OF THE COMPANY SEAT: ONE STEP FORWARD, FEW STEPS BACKWARD

Cross-border transfer of the company seat for more than decade was and still is hot and unresolved topic in EU Company Law. Freedom of establishment is indisputable cornerstone of EU company law and Internal Market enshrined in Articles 49 and 54 of the Treaty on the Functioning of the European Union (TFEU) but still the company’s cross border mobility is unsolved. The company transfer of the seat is closely connected with different Member States legal tradition in relation with the two different “seat theories” that apply. By the practice of the European Court of Justice both seat theories “the real seat theory” and “the incorporation theory” are proclaimed as in line with the EU law. Nevertheless, the process of cross border transfer of the seat occurs as compelling problem for the cross-border company mobility. In most Member States at the moment the cross border transfer of the company seat requires the winding-up of the company and establishing the new one in the other Member State. This procedure leads to the loss of legal and business continuity and national approaches to this issue differ. The Member States intention is to protect shareholders, creditors and employees and they justify restrictions on these reasons. After a long and quite successful journey of the European Court of Justice judgments in favorem of the EU Internal market and with VALE case on the top, there was European Parliament initiative for a proposal for 14th Directive with an aim to regulate cross border transfer of seat. The initiative is still not realized. After the ECJ judgment in Case VALE where the “importance to continue the economic activity” was enshrined there is new European Court of Justice case Polbud that deals with cross-border transfer of the company seat. The authors will examine new developments in the area of EU company law with accent on cross border transfer of the company seat and analysis of the case Polbud.

ELCHINOV CASE: NEW ISSUES, NEW MEMBER STATES, NEW PROBLEMS

After the series of ECJ judgments which were dealing with healthcare services, it is the Elchinov judgment which gave the summary of all relevant ECJ healthcare case-law and introduced the provisions of the Patients´ Rights Directive. The first generation of judgments where ECJ ruled within the question of the definition of healthcare services (Luisi and Carbone case, Grogan case) was followed by the ECJ judgments in cases dealing with the patients asking for the reimbursement of costs from the Member State of affiliation for medical treatment gained in the Member State of destination (Kohll case, Decker case). The main restrictions for the freedom to provide healthcare services recognized by ECJ is the national legislation that doesn´t guarantee the patient the same remuneration for the service received abroad as the remuneration that he is entitled to if the healthcare is received in the Member State of affiliation. Since the EU Member States apply different rules on reimbursement, the ECJ ruled that patients should not receive less that they would receive in their Member State of affiliation (Vanbraekel case). The authors in article analyze the ECJ judgment in Elchinov case and its impact on the Patients´ Rights Directive and new Member States regulation in the area of healthcare. The Patients´ Rights Directive can be foreseen as a result of abovementioned ECJ case law. Its objective is to establish a framework for cross-border healthcare, to set the rules that simplify the patient access to healthcare in another Member State and to define what kind of treatment the patients are entitled to in another Member State