1. Business Law Course
Department of Business and Law, University of Siena
Dr Gabriella Gimigliano, Senior Researcher in Business Law
Business Law Course,

2. EU Law (or EU Legal Order)
Court of Justice case law:
Which are the main difficulties of the interpretative activity of the Court?
While is the interpretative approach chosen? Purposive or teleological approach: the meaning of a Treaty, directive, regulation provision is established having regard to the function/purpose the legal act is planned to pursue.
How does the Court establish the purpose of the law? Context, history of the act (preliminary acts); social and economic policy priorities (as established in the «preambles»)
Doctrine of effectiveness («effet utile» approach): among different and multiple meanings of the same EU law, the Court gives peference to the meaning which is more consistent with the purpose to be achieved.

3. The EU Law Distinguishing Features:
Economic and social aspects prevail on legal aspects and it is an instrument of social and economic policies;
Administrative law
Product of bureaucracy, while the legislative and judicial activities are of less importance

4. Treaty Provisions on Businesses
Companies or Firms: art. 49, 50 (lett. g), 54, 55 TFEU;
Undertaking: art. 49, para 2, art. 101, 102, 106 TFEU
Capital: art. 55, 63, 64 TFEU
Service: art. 56, 57 TFEU

5. Businesses in the TFEU and TEU
Companies (legal or natural persons) enjoy the freedom of
Establishment (art. 49 TFEU): primary and secondary establishment
Services (art. 56, 57 TFEU)
Capital (art. 55, 63 TFEU)
Prohibitive Treaty Provisions: the Member State must refrain from
enacting laws/administrative acts/regulations that impair or
make much more expensive the exercise of the freedoms.
Negative harmonisation process/Court of Justice activity

6. Negative Integration and Business Law
Establishing a branch in a Member State other than the Member State where the company was formed,
Providing services to a user established in a Member State other than the Member State where the service provider was formed
Incorporating a company in a Member State other than the Member State where promoters or founders were born if they are natural persons or where promoters or founders were formed if they are legal persons
Taking shares or becoming partner in companies or firms established in a Member State other shareholders’ or partners’ country of origin;
Appointing workers from other Member States making no discrimination against them.

7. Businesses in the TFEU and TEU
Positive Integration
Freedom of establishment/ art. 50 TFEU (especially, lett. g)
Freedom of services /art. 59, para. TFEU
Freedom of capital / art. 64 (to and from third countries)
harmonisation process (art TFEU)

8. Businesses in the TFEU and TEU
Negative Integration Positive Integration INTERNAL MARKET FOR BUSINESSES Art. 26 TFEU (para 1-2): The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relvant provision of the Treaties. The internal market shall comprise an area without frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.

9. Law for Businesses and Positive and Negative Integration
Both negative and positive integration process aim to establish an internal market (art. 26 TFEU)
Negative integration process is based on the Court of Justice activity
Positive harmonisation process is based on the legislative initiative (art TFEU) – shared competence between the Union and the Member States
Union legislative action and the EU law for business: shared comptences – principle of subsidiarity and principle of proportionality

10. Businesses in the TFEU and TEU
Art TFEU: no EU-based definition of company or firm!
«Companies or firms means companies or firms constituted under civil or commercial law, including cooperative societies, or other legal persons governed by private or private law, save for those which are non-profit-making».
Company/Firm = Natural Persons = Nationals of the Member States = European citizens
Which one? Which companies are cosnidered as European citizens?
1) companies/firms formed according to the the law of a Member State
and
2) having a connection with the EU: registered office/central
administration/principal place of business within the Union