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Schön, Wolfgang (2016): Free Movement of Capital and Freedom of Establishment. In: European Business Organization Law Review, Vol. 17, No. 3: pp. 229-260

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Abstract

The free movement of capital (Art. 63, para. 1 TFEU) and the freedom of establishment (Art. 49 TFEU) represent cornerstones of the internal market in the area of cross-border investment and cross-border entrepreneurship. Yet the overlap between these two freedoms remains unclear, an issue which particularly plays a role in regard to third-country situations as the scope of Art. 63, para. 1 TFEU reaches beyond the territory of the European Union, while Art. 49 TFEU only applies in internal situations. Building on recent jurisprudence of the CJEU, this article puts forward a new approach to solve this intricate problem, focusing on the goals of Member States' legislation rather than on the substantive scope of the freedoms in the abstract.

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