Corporate Mobility under Article 49 TFEU: A Question of Means, not Ends

An often-contested subject in the EU is the question of whether Article 49 TFEU can, or should, facilitate corporate mobility - permitting companies based in one Member State to transfer themselves entirely to another. This essay seeks to revisit this debate in light of recent judicial and legislative developments. It will be contended that the EU Institutions have now introduced corporate mobility in varying forms and as a result the debate has been rendered redundant. The question is no longer if corporate mobility will be introduced, but instead when and how.

To this end it is submitted that an over-reliance on judicial harmonisation is hindering developments in this area. The ECJ cannot create a positive right to corporate mobility due to its confined institutional remit. It therefore falls to the EU Legislature to enact this right along with any safeguards needed to protect those with rights against a transferring company.