Article 32: Prohibition of New Restrictions on the Right of Establishment
- The Member States shall not introduce in their territories any new restrictions relating to the right of establishment of nationals of other Member States save as otherwise provided in this Treaty.
- The Member States shall notify COTED of existing restrictions on the right of establishment in respect of nationals of other Member States.
- (1) The right of establishment within the meaning of this Chapter shall include the right to:
(a) engage in any non-wage-earning activities of a commercial, industrial, agricultural, professional or artisanal nature;
(b) create and manage economic enterprises referred to in paragraph
5(b) of this Article.
(2) For the purposes of this Chapter “non-wage earning activities” means activities undertaken by self-employed persons.
- The Community Council may, with the approval of the Conference and upon the recommendation of COTED or COFAP, as the case may be, enlarge the body of rights provided in paragraph 3 of this Article. The competent Organ shall establish basic criteria for Member States in order to safeguard against manipulation or abuse of such rights so as to gain an unfair advantage against other Member States, for example, in the areas of nationality criteria and in the operation of companies.
- For the purposes of this Chapter:
(a) a person shall be regarded as a national of a Member State if such person – (i) is a citizen of that State;
(ii) has a connection with that State of a kind which entitles him to be regarded as belonging to or, if it be so expressed, as being a native or resident of the State for the purposes of the laws thereof relating to immigration; or
(iii) is a company or other legal entity constituted in the Member State in conformity with the laws thereof and which that State regards as belonging to it, provided that such company or other legal entity has been formed for gainful purposes and has its registered office and central administration, and carries on substantial activity, within the Community and which is substantially owned and effectively controlled by persons mentioned in sub-paragraphs (i) and (ii) of this paragraph;
(b) “economic enterprises” includes any type of organisation for the production of or trade in goods or the provision of services (other than a non-profit organisation) owned or controlled by any person or entity mentioned in sub- paragraph (a) of this paragraph;
(c) a company or other legal entity is:
(i) substantially owned if more than 50 per cent of the equity interest therein is beneficially owned by nationals mentioned in sub- paragraph (a) (i) or (ii) of this paragraph;
(ii) effectively controlled if nationals mentioned in sub-paragraph (a) of this paragraph have the power to name a majority of its directors or otherwise legally to direct its actions.