Notice for the OJ
JUDGMENT OF THE COURT
30 September 2003
in Case C-167/01 (Reference for a preliminary ruling from the Kantongerecht te Amsterdam): Kamer van Koophandel en Fabrieken voor Amsterdam, v Inspire Art Ltd,(1) (Articles 43 EC, 46 EC and 48 EC ( Company formed in one Member State and carrying on its activities in another Member State ( Application of the company law of the Member State of establishment intended
to protect the interests of others)
(Language of the case: Dutch)
(Provisional translation; the definitive translation will be published in the European Court Reports)
In Case C-167/01: Reference to the Court under Article 234 EC by the Kantongerecht te Amsterdam (Netherlands) for a preliminary ruling in the proceedings pending before that court between Kamer van Koophandel en Fabrieken voor Amsterdam, and Inspire Art Ltd, on the interpretation of Articles 43 EC, 46 EC and 48 EC, the Court, composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet (Rapporteur), R. Schintgen and C.W.A. Timmermans (Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and A. Rosas, Judges; S. Alber, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 30 September 2003, in which it has ruled:
1.It is contrary to Article 2 of the Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State for national legislation such as the Wet op de Formeel Buitenlandse Vennootschappen (Law on Formally Foreign Companies) of 17 December 1997 to impose on the branch of a company formed in accordance with the laws of another Member State disclosure obligations not provided for by that directive.
2.It is contrary to Articles 43 EC and 48 EC for national legislation such as the Wet op de Formeel Buitenlandse Vennootschappen to impose on the exercise of freedom of secondary establishment in that State by a company formed in accordance with the law of another Member State certain conditions provided for in domestic company law in respect of company formation relating to minimum capital and directors' liability. The reasons for which the company was formed in that other State, and the fact that it carries on its activities exclusively or almost exclusively in the Member State of establishment, do not deprive it of the right to invoke the freedom of establishment guaranteed by the Treaty, save where the existence of an abuse is established on a case-by-case basis.
____________1 - OJ C 200 of 14.7.2001