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ECJ: Advocate General finds national rules prohibiting a company registered in a Member State to transfer its operational headquarters to another Member State incompatible with the freedom of establishment — Orbitax Tax News & Alerts

On 22 May 2008, Advocate General Poiares Maduro of the European Court of Justice (ECJ) gave his opinion in the case of Cartesio Oktató és Szolgáltató bt (C-210/06). The Court of Appeal, Szeged had requested a preliminary ruling from the ECJ on 5 May 2006. In this case, the Advocate General concluded the following:

“(1)   In a situation such as the one at issue, an appeal court may refer questions for a preliminary ruling to the Court of Justice in proceedings on appeal against a decision from a lower court, notwithstanding the fact that neither the proceedings before the lower court nor the appeal proceedings are inter partes;
(2)   The fact that an appeal against a decision of a national court or tribunal is limited to points of law and lacks automatic suspensory effect does not imply that that court or tribunal is under the obligation referred to in the third paragraph of Article 234 of the EC Treaty;
(3)   Article 234 of the EC Treaty precludes the application of national rules according to which national courts may be obliged to suspend or revoke a request for a preliminary ruling;
(4)   Articles 43 and 48 of the EC Treaty preclude national rules which make it impossible for a company constituted under national law to transfer its operational headquarters to another Member State."