Yearbook of European Law - Vol. 14

JAN WOUTERS

In a steadily increasing number of cases the Court of Justice of the European Communities is asked to assess the compatibility of national tax rules with the EC Treaty's provisions concerning the freedom of establishment of companies. This article takes a closer look at the judgments in this area, while situating them in the broader context of the case-law on free movement.¹ After a discussion of the cases on companies, attention is given to the recent judgment in Schumacker² and its possible impact on the status of tax barriers to companies' right of establishment.

The Community legal framework on the subject-matter is characterized by generic Treaty provisions on the right of establishment of companies, a lack of an explicit Treaty basis for corporate tax legislation and very few EC legislation adopted yet.

As regards companies' right of establishment, it is well-known that the EC Treaty operates by analogy with the regime applicable to natural persons.³ Read together with Article 58, Article 52 EC obliges the Member States to abolish restrictions -- in the first place, discriminatory restrictions -- on the freedom of establishment of companies of one Member State in the territory of another Member State, an obligation which also applies to

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