«(Articles 43 EC, 46 EC and 48 EC – Company formed in one Member State and carrying on its activities in another Member State – Application of the company law of the Member State of establishment intended to protect the interests of others)»

1.. Member States – Obligations – Obligation to penalise infringements of Community law – Scope (Art. 10 EC)

2.. Freedom of movement for persons – Freedom of establishment – Companies – Directive 89/666 – Disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State – Mandatory and optional disclosure requirements – National legislation introducing disclosure requirements not provided for by the directive – Not permissible (Council Directive 89/666, Art. 2)

3.. Freedom of movement for persons – Freedom of establishment – Company formed in accordance with the law of a Member State in which it has its registered office but in which it conducts no business – Establishment of a branch in another Member State subjected to conditions relating to minimum capital and directors' liability – Not permissible – Possibility of adoption by Member States of measures to combat fraud – Limits (Arts 43 EC and 48 EC)

JUDGMENT OF THE COURT 30 September 2003 (1)

((Articles 43 EC, 46 EC and 48 EC – Company formed in one Member State and carrying on its activities in another Member State – Application of the company law of the Member State of establishment intended to protect the interests of others))

In Case C-167/01,

REFERENCE to the Court under Article 234 EC by the Kantongerecht te Amsterdam (Netherlands) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Articles 43 EC, 46 EC and 48 EC,

THE COURT,,

composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet (Rapporteur), R. Schintgen and C.W.A. Timmermans (Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and A. Rosas, Judges,

Advocate General: S. Alber,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of the Kamer van Koophandel en Fabrieken voor Amsterdam, represented by R. Hermans and E. Pijnacker Hordijk, advocaten, of Inspire Art Ltd, represented by G. van der Wal, of the Netherlands Government, represented by J.G.M. van Bakel, acting as Agent, of the German Government, represented by A. Dittrich, of the United Kingdom Government, represented by J. Stratford, and of the Commission, represented by C. Schmidt and H. van Lier, acting as Agent, at the hearing on 26 November 2002,

after hearing the Opinion of the Advocate General at the sitting on 30 January 2003,

gives the following

The relevant provisions of Community law

as a company organ constituted pursuant to law or as members of any such organ, in accordance with the disclosure by the company as provided for in Article 2(1)(d) of Directive 68/151/EEC,

as permanent representatives of the company for the activities of the branch, with an indication of the extent of their powers;

The relevant provisions of national law

The existence of an impediment to freedom of establishment

Observations submitted to the Court

The Court's answer

Whether there is any justification

Observations submitted to the Court

The Court's answer

On those grounds,

THE COURT,

in answer to the questions referred to it by the Kantongerecht te Amsterdam by order of 5 February 2001, hereby rules:

Rodríguez Iglesias

Puissochet

Wathelet

Schintgen

Timmermans

Gulmann

Edward

La Pergola

Jann

Skouris

Macken

Colneric

von Bahr

Cunha Rodrigues

Rosas

Delivered in open court in Luxembourg on 30 September 2003.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President