Claiming the `abuseor fraudulent conduct´ can be justifiable on general interest grounds, forindistinctly applicable and non-discriminatory measures. However, it has toproportional and must imply “overriding” reasons in the public interest.
Goingback to the case of Centros, it isdisproportional if the company “holds itself as a company governed by the lawof” its state of registration.1Martin holds his P.O. Box address in Manchester, UK, and therefore, does nothold itself to be a German company. Therefore, it must be acclaimed that theMCC is in breach of Articles 49 and 54 TFEU, due to disproportionality. Furthermore,the Court held in Centros, that “.
..it is possible to adopt measures which are less restrictive, for example,making it possible in law for public creditors to obtain the necessaryguarantees.”2 Furthermore, the unwillingnessby the MCC to register Martin´s company, and hence `denying it legal capacity´,is `tantamount to outright negation of the freedom of establishment´. In thecase of Überseering, the Court heldthat such unwillingness and denial constitutes a breach of freedom ofestablishment.3 Regarding the furtherunwillingness by the MCC to allow Martin, if he `decided to transfer the headoffice of his company to Germany and convert it to a company re-incorporatedunder German law´, constitutes a further breach with EU law.
In the case of Daily Mail, it was asserted that thiswas only not possible, when the company tried to remain its legal status and incorporationunder the first Member State, whilst transferring its `control and central administration´to another Member State.4 However,as this is not the case with Martin´s company, the MCC would need toreconsider. Furthermore, the Court held, in the case of Vale, that “provisions of national law must be applied consistentlywith that requirement, in accordance with Articles 49 TFEU and 54 TFEU.”5Hence, the MCC must be consistent in its application of domestic law, and as itis possible for German companies to be recognised at such, it must be possiblefor Martin as well.
To conclude, the decisions ofthe MCC do not at all comply with EU law. Both refusals, firstly, to remove thecompany from the German register, and secondly, to refuse it to be`re-incorporated und German law´ if it wishes to do so, amount in breaches ofthe freedom of establishment. As their justifications are disproportional anddiscriminate in nature, its `tantamount to an outright negation of the freedom´.1Case C-212/97 Centros 1999 ECR I-1459 at 362ibid at 373Case C-208/00 Überseering 2002 ECR I-9919 at 934Case C-81/87 Daily Mail 1988 ECR 5483 at 245Case C-378/10 Vale EU:C:2012:440 at 47