Free Movement of Capital and Freedom of Establishment

Schön, Wolfgang

doi:10.1007/s40804-016-0051-1

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Free Movement of Capital and Freedom of Establishment

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Schön, Wolfgang
Business and Tax Law, MPI for Tax Law and Public Finance, Max Planck Society;

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Schön, W. (2016). Free Movement of Capital and Freedom of Establishment. European Business Organization Law Review, 17(3), 229-260. doi:10.1007/s40804-016-0051-1.

Cite as: https://hdl.handle.net/11858/00-001M-0000-002C-3EC5-8

Abstract

The free movement of capital (Art. 63, para. 1 TFEU) and the freedom of establishment (Art. 49 TFEU) represent cornerstones of the internal market in the area of cross-border investment and cross-border entrepreneurship. Yet the overlap between these two freedoms remains unclear, an issue which particularly plays a role in regard to third-country situations as the scope of Art. 63, para. 1 TFEU reaches beyond the territory of the European Union, while Art. 49 TFEU only applies in internal situations. Building on recent jurisprudence of the CJEU, this article puts forward a new approach to solve this intricate problem, focusing on the goals of Member States’ legislation rather than on the substantive scope of the freedoms in the abstract.