Free Movement and Antitrust Law through the lens of the CJEU: A Blueprint for Incidental Harmonisation of Corporate Laws in Europe

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The relative absence of corporate law harmonisation at the EU level has attracted a great deal of academic attention. Harmonisation, anchored in the Treaties themselves, is concerned with the convergence of Member States' laws for the creation of a robust internal market. However, this conclusion is premised on the assumption that harmonisation can be categorised, for example according to the degree of convergence sought or the initiator of the process (EU or Member States). In reality, harmonisation is a subject-dependent process and must be interpreted differently depending on the lawmaking instrument used. It is neither a purely vertical and intentional process, nor a neutral and direct phenomenon. I seek to investigate the ways in which corporate law challenges traditional conceptions of harmonisation, to show that it is subject to incidental harmonisation via an inter-institutional "dialogue" between the CJEU and national lawmakers and judges.Corporate law at the EU level appears to be misunderstood. Academics treat it as an area of regulatory competition rather than promoter of the internal market, and EU lawmakers struggle to keep corporate law harmonisation within the constitutional limits of its authority. But the internal market also revolves around the fundamental freedoms, including freedom of establishment and free movement of capital. Also, core provisions of EU Competition Law (ex. the prohibition of agreements and concerted practices) ensure that, failing harmonisation, diverging strategies of Member States' companies do not amount to market distortions.Despite sharing salient features like real seat, groups and a firm , corporate law and EU scholarship tend to minimise their interconnectedness. Corporate law and free movement are indisputably connected. Freedom of establishment facilitates corporate mobility in the EU, and thereby challenges Member States' conceptions of corporate governance. Corporate law regulates the interaction between businesses and the public; EU law is concerned with allowing free movement of firms' capital among foreign investors. Finally, EU antitrust law adopts a conception of corporate groups that challenges corporate law conceptions of group law within Member States.