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Promotion of the right of establishment in EU: focusing on the Imperative Requirement Doctrine

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  • Junghwan Jeon

    () (Meister Law Office)

  • Gyoung-Gyu Choi

    () (Dongguk University-Seoul)

Abstract

Abstract Consolidation of the “Common European Market” is a key feature of the European Union, which is made possible by the freedom in movement of goods, capital, services, and people. The freedom of movement for businesses manifests itself as the right of establishment. The aim of this paper is to examine various issues surrounding the right of establishment and to analyze the position of the European Court of Justice (ECJ) in each case. The analysis of cases illustrates a consistent opinion of the ECJ: The right of establishment is highly protected, but it must be exercised in the context of national legislation. Government regulation in market access, on the other hand, must meet the imperative requirement doctrine: it must be non-discriminatory, there must be general public interest at stake, the regulation must be an effective means of promoting public interest, and the regulation must be necessary and proportional to the general interest at stake. In sum, the ECJ upholds the right of establishment but nonetheless respects the states’ specific regulatory authority as long as they conform to the imperative requirement doctrine.

Suggested Citation

  • Junghwan Jeon & Gyoung-Gyu Choi, 2016. "Promotion of the right of establishment in EU: focusing on the Imperative Requirement Doctrine," Asia Europe Journal, Springer, vol. 14(3), pages 297-318, September.
  • Handle: RePEc:kap:asiaeu:v:14:y:2016:i:3:d:10.1007_s10308-016-0448-z
    DOI: 10.1007/s10308-016-0448-z
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    References listed on IDEAS

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    1. Schön Wolfgang, 2006. "The Mobility of Companies in Europe and the Organizational Freedom of Company Founders," European Company and Financial Law Review, De Gruyter, vol. 3(2), pages 122-146, June.
    2. Korom Veronika & Metzinger Peter, 2009. "Freedom of Establishment for Companies: the European Court of Justice confirms and refines its Daily Mail Decision in the Cartesio Case C-210/06," European Company and Financial Law Review, De Gruyter, vol. 6(1), pages 125-161, January.
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