Abstract

The non-discrimination principle is one of the essential principles in the area of European public and private law too. The importance of this principle also takes a great place in field of company law, especially in the area of “freedom of establishment of the companies” in the European Single Market (hereinafter ESM).

Freedom of establishment of companies is closely related to the general concept of “free movement of people, capital, goods and services,” in ESM. In fact, freedom of establishment is a substantive part of the process of creation the internal market in EU. The freedom of establishment is based on the Treaty of the functioning of EU (hereinafter TFEU). According to article 49 from TFEU (previously article 43 et seq. EC Treaty), restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. This prohibition also applies to restrictions on setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. In-depth exploration of this issue is conditioned by the interpretation of the Court of justice of European Union (hereinafter CJEU), which embodies the real legal regime of freedom of establishment. Freedom of establishment of companies is closely related to the principles of healthy and fair competition and equal access of the companies too.

This article seeks to elaborate fundamental theoretical aspects of this issue, considering certain case - study analyze of CJEU judgements. The main focus is on the non-discrimination principle, legal effects of the CJEU judgments, free market and competitiveness, and finally, determination of the concept of primary and secondary establishment of companies in EU.