Claiming MCC to allow Martin, if he `decided to

Claiming the `abuse
or fraudulent conduct´ can be justifiable on general interest grounds, for
indistinctly applicable and non-discriminatory measures. However, it has to
proportional and must imply “overriding” reasons in the public interest. Going
back to the case of Centros, it is
disproportional if the company “holds itself as a company governed by the law
of” its state of registration.1
Martin holds his P.O. Box address in Manchester, UK, and therefore, does not
hold itself to be a German company. Therefore, it must be acclaimed that the
MCC 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 necessary
guarantees.”2

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                  Furthermore, the unwillingness
by the MCC to register Martin´s company, and hence `denying it legal capacity´,
is `tantamount to outright negation of the freedom of establishment´. In the
case of Überseering, the Court held
that such unwillingness and denial constitutes a breach of freedom of
establishment.3

                  Regarding the further
unwillingness by the MCC to allow Martin, if he `decided to transfer the head
office of his company to Germany and convert it to a company re-incorporated
under German law´, constitutes a further breach with EU law. In the case of Daily Mail, it was asserted that this
was only not possible, when the company tried to remain its legal status and incorporation
under 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 to
reconsider. Furthermore, the Court held, in the case of Vale, that “provisions of national law must be applied consistently
with that requirement, in accordance with Articles 49 TFEU and 54 TFEU.”5
Hence, the MCC must be consistent in its application of domestic law, and as it
is possible for German companies to be recognised at such, it must be possible
for Martin as well.

                  To conclude, the decisions of
the MCC do not at all comply with EU law. Both refusals, firstly, to remove the
company 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 of
the freedom of establishment. As their justifications are disproportional and
discriminate in nature, its `tantamount to an outright negation of the freedom´.

1
Case C-212/97 Centros 1999 ECR I-1459 at 36

2
ibid at 37

3
Case C-208/00 Überseering 2002 ECR I-9919 at 93

4
Case C-81/87 Daily Mail 1988 ECR 5483 at 24

5
Case C-378/10 Vale EU:C:2012:440 at 47