Skip to content

Book Redomiciliation Co

siege change

redomiciliation in EU

From http://www.etd.ceu.hu/2010/vargova_petra.pdf:

THE CROSS-BORDER TRANSFER OF A COMPANY’S REGISTERED OFFICE
WITHIN THE EUROPEAN UNION
by Petra Vargova
CEU eTD Collection
LL.M. SHORT THESIS
COURSE: Corporations
PROFESSOR: Peter Behrens
Central European University
1051 Budapest, Nador utca 9.
Hungary
© Central European University March 29, 2010

ABSTRACT
This thesis focuses on the corporate mobility within the European Union. The aim of the
research is to give a detailed and complete analysis on the possibility of the cross-border
transfer of the registered office between the Member States of the Union.
By providing the comparative analysis of the conflicts of laws, the thesis indicates that
the possibility of the transfer of the registered office does not stem from any conflicts of
laws doctrines. Neither was the transfer until recently touched by the European Court of
Justice (ECJ) The thesis provides an insight into the European Court of Justice’s
jurisprudence. Neither in its jurisprudence generally, could the answer for the possibility
of the cross-border transfer of the registered office be found. Although the recent
judgment of the ECJ shed some light on the problem, the transaction is still practically
impossible.
The results of research demonstrate that there is a need for a directive that would give a
way to company’s unrestricted mobility.
CEU eTD Collection
ii

Table of Contents
INTRODUCTION……………………………………………………………………………………………..1
1. General framework of the corporate mobility…………………………………………………..3
1.1Freedom of establishment ……………………………………………………………………..3
1.2The Conflicts of laws rules in European Company Law …………………………….6
1.2.1Real Seat doctrine …………………………………………………………………………7
1.2.2Incorporation doctrine ……………………………………………………………………8
1.3Seat transfers within the European Union……………………………………………….10
1.3.1The transfer of the head office ……………………………………………………….11
1.3.2Transfer of the registered office……………………………………………………..13
2 The seat transfers under ECJ’s jurisprudence …………………………………………………15
2.1Relevant ECJ’s case-law ……………………………………………………………………..15
2.1.1Daily Mail………………………………………………………………………………….15
2.1.2Inbound establishment’s case law…………………………………………………..17
2.1.3Cartesio……………………………………………………………………………………..20
2.1.4Advocate General opinion in Cartesio ……………………………………………22
2.2The Impact of ECJ jurisprudence on the seat transfers………………………………24
2.2.1Transfer of the head office……………………………………………………………. 24
2.2.2The unprompted way to the “incorporation“ principle ……………………….25
2.2.3Transfer of the registered office……………………………………………………..27
2.2.4Substantive law provisions of some Member States…………………………..29
3 The transfer of the registered office under the EU secondary legislation …………….34
3.1The indirect possibility of the cross-border migration……………………………….35
3.2The future scenario of the transfer of the registered office-the 14th Company
Law Directive………………………………………………………………………………………………37
3.2.1The safeguards of the 14th Directive ………………………………………………38
3.2.2Transfer of registered office with versus without simultaneous transfer of
the head office? ………………………………………………………………………………………..42
Conclusion ……………………………………………………………………………………………………..44
BIBlOGRAPHY………………………………………………………………………………………………46
CEU eTD Collection
1

INTRODUCTION
The European Union is from its very beginning motivated to create an area where no
internal frontiers exist and where free movement rights are guaranteed. Since the Union is
already half century fighting against all internal barriers, one might assume that the free
mobility is guaranteed. However, that is not absolutely true. The issue remains
complicated mainly when it comes to the free movement of companies. This thesis
identifies and analyzes the reasons that hinder the way to unrestricted corporate mobility.
The main attention is given to the feasibility of the transfer of the registered office.
The first chapter provides general overview through relevant areas of law which might
have the impact on the possibility of the seat migration. Significance here is mainly given
to the conflicts of law rules. Since the seat transfer is cross-border transaction, the
conflicts of laws rules are called upon to determine the applicable law of the “traveling”
company.
Taking into the consideration that both countries might have interest to
regulate the internal relations of the company, the specific rules were designed to resolve
the issue of conflicting jurisdiction. In this respect, the thesis concentrates on the impact
of the two generally applicable principles. To demonstrate that the feasibility of the seat
CEU eTD Collection
transfer does not run strictly along the borders of conflicts of laws theories, an short
excursion through relevant provisions of substantive law is provided. Dealing with the
seat migration within the European Union, one might not omit to mention the role of the
European Union law. As has been mentioned above, the Treaty provisions on the
freedom of establishment are of relevance here. .Although the right of establishment is
proclaimed to be enjoyed to the same extent by the natural persons and companies, the
1

reality is different. Companies are still facing obstacles when trying to rely on the
freedom of establishment provisions regarding the seat migration. European Court of
Justice has in recent decades developed significant case-law, that mainly addressed the
mobility of the head office. However, very recently, the court has for the first time
addressed, althoug indirectly, the issue of the transfer of the registered office. The impact
of the Cartesio judgment on the seat transfer possibility is detaily examined in the second
chapter. The “conversion” option that has been introduced is tested from the angle of
some Member States’ substantive law. By the comparative analysis the thesis attempts to
answer the question whether the possibility of the transfer of the registered officer has
been answered by the Cartesio. Indication is given that further steps are required to
achieve the free movement of companies in his fullest possible extent.
The third chapter describes the option of the transfer of the registered office under the EC
secondary provisions. The thesis attempts to examine whether these options are attractive
from the perspective of the company considering to re-register abroad. Finally, a deeper
look should be taken at the development of the coordinative directive it this field. The
directive, if once enacted, would allow what is now only hypothetically possible. The
thesis makes some suggestion on what appears to be necessary to be addressed by the
CEU eTD Collection
directive.
2

1. General framework of the corporate mobility
The European Union’s non-border policy offers the company prospect to carry on the
business anywhere within its territory. The start-up company when deciding where to
locate its business benefits from the opportunity to choose among 27 corporate regimes.
Needless to say, it tries to establish itself in one that would best fit its needs. However,
during the life of the company its expectations might alter and thus the company might
consider moving to another Member State, notwithstanding how right the initial choice
was. The companies intending to transfer their registered office are motivated by the
desire of benefiting of the “better” corporate regime, whereas the companies moving their
head office abroad are usually inspired by various economic reasons; i.e the lower
productions costs or more convenient tax regime.1
The chapter bellow examines various aspect of the law that have to be taken into
consideration when deciding on the transfer the company’s seat abroad. It is mainly the
conflicts of laws and substantive law of countries affected by such a business activity,
together with the provisions on the freedom of establishment.
CEU eTD Collection
1.1
Freedom of establishment
From the perspective of the European Union, the Treaty provisions on the freedom of
establishment have the major impact on the possibility of the cross-border mobility.
Stephan Rammeloo, The 14th Company Law Directive on the cross-border transfer of the registered
office of limited liability companies : now or never? 14 Maastricht journal of European and comparative
law 362 (2008).
1
3

European Union is from its very beginning motivated by the creation of the area with no
internal borders (i.e. the internal market) where free movements are guaranteed.
2
The
cornerstone of the establishment rights is enshrined in articles 49 and 54 of TFEU [ex.
Articles 43 and 48 TEC].3 These Articles guarantee natural person and companies the
right to set up and manage undertakings in the territory of any Member State (primary
establishment i.e. carrying on the business activity entirely within the host State) and on
the other hand the right to set up of agencies, branches or subsidiaries in any Member
State (secondary establishment, i.e. carrying on the business in one MS and having other
offices in other MS).4
TFEU places the freedom of establishment enjoyed by the natural persons and by the
companies on the same footing. However, whereas freedom of establishment of natural
persons has been fully achieved, companies are still facing obstacles streaming mainly
from discrepancies between the Member States’ company laws
corporate entity. 6 .
Article 54 TFEU takes into account the artificial personality of company and points out
that company or firm can rely on freedom of establishment as long as it is “formed in
accordance with the law of a Member State” and have its
CEU eTD Collection
5
and the nature of the
“registered office, central
Even though the
administration or principal place of business within the Union.”
formulation of article 54 TFEU might seem easily comprehensible, it is worth mentioning
Art. 26 of the Treaty on the Functioning of the European Union May 9, 2008, OJ C 115/47, (ex Art. 14
TEC);
3Art. 49 TFEU (ex Art. 43 TEC ) and Art. 54 TFEU (ex Art. 48 TEC)
4JOSEPHINE STAINER, EU LAW 452 (OXFORD UNIVERSITY PRESS, OXFORD, 9th ed. 2006)
5Commission Staff Working Document, Impact Assessment on the Directive on the cross-border transfer
of registered office, 7 SEC (2007) 1707
6CATHARINE BARNARD, THE SUBSTANTIVE LAW OF THE EU: THE FOUR FREEDOMS 331
(OXFORD UNIVERSITY PRESS, OXFORD, 2nd ed. 2007)
2
4

several hints that need to be taken into the consideration when applying the treaty
provision in practice, as is the case of the cross-border corporate mobility.
Firstly, the company formed in accordance with the law of a Member State has its legal
personality only in line of requirement of that Member State’s company law rules. 7
Therefore if an entrepreneur moves abroad, it might happen that it won’t be considered as
a legal person under company law rules of another Member State. This is especially true
as regards firms.8 Prior to the enactment of the Lisbon Treaty, the former Treaty
establishing the European Community in its Art. 293 invited Member States to enter into
the negotiations on mutual recognition of companies and the system for the retention of
the legal personality in case of the seat transfer. Although the Article 293 did not survive
the Lisbon Treaty amendments, during its existence it was not beneficial as regards
corporate mobility since Members States could not come up with feasible Convention. 9
Secondly, the enterprise when moving abroad might fail to meet the requirement of the
law accordance which it was formed (MS following the real seat). Therefore it looses its
legal personality and thus ceases to be the beneficiary of the freedom of establishment.10
Even though the European Court of Justice (ECJ) as a sole interpretator of the Treaties
has broadened the scope of the freedom of establishment, it has not yet confirmed it to
CEU eTD Collection
Supra, note 4, at. 463
General partership in France (societé en nom collectif ) is granted the legal personality (L210-6), in
Germany the general partnership (offene Handelsgesselschaft)does aquire only the quasi legal personality-
(para, 124 German Commercial Code), the general partnership as defined in section 1(A) of the Partnership
Act does not have the legal personality at all.
9Jonathan Rickford, Special issue section on the restructuring of companies in Europe, 15 European
Business Law Review 1236 (2004); he emphasizes that although they agreed on the Convention on Mutual
Recognition of companies in 1968, the Netherlands refused to sign it. Their second attempt in the
beginnings of 1980s was unsuccessful too, since it was blocked by the Denmark and UK.
10DAMIAN CHALMERS & ADAM TOMKINS, EUROPEAN UNION PUBLIC LAW : TEXT AND
MATERIALS 735 (CAMBRIDGE UNIVERSITY PRESS, CAMBRIDGE 2007)
8
7
5

the same extension as it is given to the natural persons. The detail scrutiny of the relevant
judgments on the freedom of establishment is considered in the next chapter.
1.2
The Conflicts of laws rules in European Company Law
The conflicts of laws (“known also as the private international law”) is a specific area of
law containing rules that are to be applied when foreign laws get into the conflict. Taking
the cross-border seat transactions as an example it is obvious that it affects the original
home country and the country to which the business is moved to. The company has
created during its existence a commitment towards the former and is about to create the
new one towards the latter. Thus both countries might have the interest to regulate the
company’s activity. 11 Admittedly, the question arises which law is to be applied. Or in
another words, which company law requirement must the company now comply with
when carrying on its business activity abroad.12 For a legal certainty, the settlement of
clashing jurisdiction cannot to be left for the discretion of the countries involved, but the
precise rules have to be at disposal that would clearly indicate the solution. 13
Conflicts of laws rules were designed to help to choose the law that will be the given
preference and thus applicable for next company’s activities. Since the function of the
CEU eTD Collection
conflict of law rule is specific compared to the other legal norms, the structure differs too.
The structure of this norm is briefly as follows: a) first part defines the class of the legal
relationship to which the rule is applicable (e.g. company law) and b) second part, known
Supra, note 9, at. 1232.
Supra, note 4, at 463.
13Heinz Kußmaul, Corporations on the move, the ECJ off track : relocation of a corporation’s effective
place of management in the EU, 6 European company law 247 (2009).
12
11
6

as the connecting factor, determines which from the conflicting laws is to be applied for
that legal relationship.
Within EU Member States apply two divergent connecting factors as regards determining
the applicable law for companies; the principle of “incorporation” and principle “real
seat” principle. Whereas under former, the governing law is law of the state where
company is incorporated, the latter refers to the state of the company’s place of the real
seat.14 Traditionally, the real seat principle overridden the incorporation theory when it
was followed by majority of the founders of the European Union. At current state, the
ratio of both ‘competitive camps’ is balanced. 15
1.2.1 Real Seat doctrine
The “real seat” doctrine dates back to the nineteenth century, when it was developed in
Germany and France to preempt its companies from re-incorporating in neighborhoods
countries. 16 It is premised on the assumption that the law of the country where company
in reality carries on all its business activities and thus country most affected by the
company’s operation should apply.17
The logic behind the “real seat” theory is based on the possibility to control the business
CEU eTD Collection
activity where it is carrying on and thus ability to provide the adequate protection for the
creditors, company shareholders, workers and other interested parties affected by the
Frank Wooldridge, The Advocate General’s submissions in Cartesio: Further doubts on the Daily Mail
case, 30 Company Lawyer 145 (2009).
15Supra, note 5, at 9
16Carsten Frost, Transfer of Company’s Seat—an Unfolding Story in Europe, 36 Victoria University
Wellington Law Review 362 (2005).
17Werner F. Ebke, The “real seat” doctrine in the conflict of corporate laws, 36 The International
Lawyer 1027 (2002).
14
7

company’s operation.18 However, seeing that increasing number of business transaction
are currently taken via Internet conferences, it might be somehow difficult to determine
where the managers took and implemented the decision and hence complicated to settle
where “real seat” is located. 19
Turning to the corporate mobility matter, the special problem is presented by the
adherence to the “real seat “doctrine. At this point it suffices to emphasize that the “real
seat” doctrine makes it complicated for the company’s migration to occur since it requires
the genuine link with the country of incorporation.20 Put it more simply, the address of
the central administration and place of incorporation has to coincide
migration more difficult.
21
and it makes the
1.2.2 Incorporation doctrine
The “incorporation” theory has its roots in the eighteen century when it emerged in
countries engaged in maritime activities, allowing companies to benefit from retaining its
legal status regardless of where they conducted their overseas transactions. 22
Conceptually speaking, the incorporation theory uses as decisive connecting factor the
CEU eTD Collection
Wolfgang Schon, The mobility of companies in Europe and the organizational freedom of company
founders, 3 European Company and Financial Law Review 146 (2006)
19STEPHAN RAMMELOO, CORPORATIONS IN PRIVATE INTERNATIONAL LAW 14 (OXFORD
UNIVERSITY PRESS, OXFORD, 2001)
20Andrew Johnston and Phil Syrpis, Regulatory competition in European company law after “Cartesio”, 34
European Law Review 381 (2009).
21Peter Behrens, The impact of community law on the determination of the personal law of companies 47
IN: RESOLVING INTERNATIONAL CONFLICTS : LIBER AMICORUM TIBOR VARADY (PETER
HAY, LAJOS VEKAS, YEHUDA ELKANA, NENAD DIMITRIJEVIC ed., CENTRAL EUROPEAN
UNIVERSITY PRESS. BUDAPEST ; NEW YORK, c 2009).
22António Frada de Sousa, Company’s cross border transfer of seat in the EU after Cartesio, Jean Monnet
Working paper 4 (2009).
18
8

place where the company came into the existence (i.e. where it was incorporated).23 The
Member States adhering to this principle do not require the linkage between the central
administration and the place of incorporation and hence allow the companies to register
under their law irrespective of location of their center of management. 24
Whereas the real seat principle emphasizes the control of commercial transactions, the
incorporation principle highlights the predictability and certainty of these transactions.
The registered address, as an address defined in the article of associations, is easy and
reliable to ascertain. 25
The opponents of the incorporation principle argue by emergence of, what is in the
United States called the, “Delaware effect” or “race to the bottom”26. It stands for a trend
where countries diminish the company law requirement in order to attract the
entrepreneurs to be established in their country. The companies are likely to register
themselves in the countries with most favorable company law regime while carrying on
all their activities in another States.
27
Since the incorporation principle does not require
the linkage between the real seat and place of incorporation, it creates suitable
environment for the “Delaware effect.” The Delaware effect is not visible among the real
CEU eTD Collection
Id.
Supra, note 20, at Aj p. 381
25Mathias Siems, Convergence, competition, “Centros” and conflicts of law : European company law in
the 21st century , 27 European Law Review 48 (2002); see further the Art. 2(1) of the First company law
directive (Directive 68/151/EEC) that puts on the companies requirement to diclose in the publicly
accessible register the instrument of instituition art. 2 (1) (Directive use general term to cover any
documents equivalent to the insturment of instituion regardless their name under domestic law.eg article of
associatios/statues. Besides the amendment to the directive (Directive 2003/58/EC) further laid the
requirement to make the register electoronically accessible. 11th company law directive (Directive
89/666/EC) puts disclosure requirement on the brancehs of the foreign companies.]
26for the history of the concept the “Delaware effect” see Christiana H.J.I. Panayi, Corporate mobility in
the European Union and exit taxes, 63 Bulletin for International Taxation (2009). footnote 9-10
27Supra, note 20, at 391
24
23
9

seat followers, since the “coincide” requirement excludes party autonomy to solely move
its central administration abroad. 28
The “Delaware effect“should be conceived as a double-edge sword. From the economic
point of view it demonstrably brings considerable benefits29 on the other hands it leads to
the lowering of company’s law requirement that are mainly aimed for the protection of
the persons effected by the company’s activity.
1.3
Seat transfers within the European Union
The discrepancy between decisive connecting factors, “real seat” principle and
“incorporation,” used for determing the governing law is being perceivable mainly when
it comes to the issue of the seat transfer. As was shown above, the “real seat” requires the
company to be incorporated in the country where the real seat is located, whereas the
“incorporation” doctrine does not place on the companies any similar requirement. 30
However, we must bear in mind that possibility of exercising such an transfer depends
not only on the conflict of law rules but also on the substantive provisions of the both
host and original MS. 31 Put it more precisely, when the company transfer its seat,
CEU eTD Collection
conflicts of laws is called for the determination of applicable substantive company law,
whereas it is left to substantive law to determine whether transfer of the seat is
Wulf-Henning Roth, From Centros to Ueberseering: Free Movement of Companies, Private
International Law, and Community Law, 52 The International and Comparative Law Quarterly 181(2003. )
29Supra, note 5, at 4.
30MAX ANDENAS & FRANK WOOLDRIDGE, EUROPEAN COMPARATIVE COMPANY LAW 35
(CAMBRIDGE UNIVERSITY PRESS, CAMBRIDGE 2009).
31Mucciarelli, Federico M. , Companies’ Emigration and EC Freedom of Establishment, 20 (2007).
Available at SSRN: http://ssrn.com/abstract=1078407.
28
10

permissible. 32 In this respect we should mainly consider on the one hand, whether the
original jurisdiction requires dissolution of the emigrating company and on the other
hand, whether host jurisdiction allows immigrating company to be registered without
going through the process of incorporation once again. 33
We will consider the companies mobility; firstly, the transfer of the real seat and
secondly, the transfer of the registered office from the viewpoint of the conflicts of laws
doctrines. Besides, a short overview on the substantive provisions of the selected Member
States is given to prove that there are differences in treatment of the corporate mobility
even within the same conflicts of laws theory.
1.3.1 The transfer of the head office
As was roughly outlined above, there are two approaches to the transfer of the head office
steaming from the discrepancies of the conflicts of laws theories.
Therefore we will firstly consider the transfer of the real seat from the perspective of the
countries adhering to the “real seat” doctrine. Secondly we will have a closer look on the
real seat transfer from the viewpoint of the incorporation doctrine.
CEU eTD Collection
Under the “real seat” principle, the applicable law is one where the real seat is located.
Therefore every change of the real seat will leads to the change of the applicable law. It is
left to the substantive laws of the countries move away an move to decide how will
penalize the company for breaking the connecting factor. The transaction is generally
32
33
Id.
Supra, note 21, at 61
11

considered either legally impossible or hindered by the several conditions.34 Emigrating
company is sanctioned by the dissolution, whereas immigrating by non-recognition.
Traditionally, the German approach towards the company’s migration was conceived to
be most severe. 35 It penalizes not only foreign companies moving its real seat in the
territory of Germany; by not recognizing them but it also disallowed its companies
wishing to relocate abroad. In this event, the German law ceased to apply and therefore
the company would be dissolved and liquidated.36 The application of this draconian
sanction was, at least according to the academic writing, minimized by the renvoi
doctrine. It means, that in case the German company move its real seat into country
adhering to the incorporation doctrine, its private international law would call back
(renvoi) for the application of the German law as the law of the place of incorporation
and thus the liquidation would not be necessary. 37
The French companies are allowed to transfer their operational headquarters provided
that shareholders agreed upon it by the qualified majority and an international agreement
with the state of arrival was in the force. However, no such an treaty ever came into
force. Hence, the position of the French legal system is not clear cut. The widespread
CEU eTD Collection
opinion, at least according to the academic writing, therefore, is that the transfer is
allowed but requires unanimous consent of the shareholders. 38 As far as the immigration
of the foreign company into the France is concerned, the French approach appears to be
34
Supra, note 5, at.9
Eddy Wymeersch, The Transfer of the Company’s Seat in European Company Law, ECGI Working
Paper N°10 10 (2003). Available at: http://ssrn.com/abstract=384802
36Supra, note 21, at. 60.
37Wulf-Henning Roth, From Centros to Ueberseering: Free Movement of Companies, Private International
Law, and Community Law, 52 The International and Comparative Law Quarterly 185 (2003).
38Supra, note 35, at. 11
35
12

permissive since it allows the transfer of the foreign company head office provided that
is accompanied by the transfer of the registered office. 39 Whether the company could
benefit from such a formulation is questionable, since when moving its registered office
abroad the domestic law would generally require the dissolution and thus it is not
possible without the loose of the legal personality. However, in the light of the recent
cases law of European Court of Justice, it appears that situation might have changed. The
survey on the ECJ case law and its impact on the corporate mobility are further described
in the second chapter.40
The transfer of the head office in the family of the incorporation countries is easier to
ascertain, since it leaves the boarders wide open for such mobility. Incorporation doctrine
originates from the principle that company is allowed to transfer its real seat without
losing its legal identity, since the registered office as a decisive factor for determining the
applicable law remains untouched. 41
1.3.2 Transfer of the registered office
The company that has successfully moved its real seat might welcome the possibility to
CEU eTD Collection
transfer the registered office as well and thus get rid of the obligations that still has in the
state of incorporation.42
However, special problem is presented by the transfer of the registered office, which is
generally perceived to be inadmissible.43 The cross-border transfer of the registered
39
40
Supra, note 31, at. 19-20
Supra, note 35, at. 10-12: for further assessment for Italy, Spain, Portugal, Belgium, Luxemburg
41Andrea J. Gildea, Uberseering: A European Company Passport, 30 Brooklyn Journal of International
Law 262 (2004).
42Supra, note 18, at. 139
13

office from the incorporation country would break the connecting factor and would lead
to the change of the applicable law. 44
For the reincorporation to be possible, substantive laws of both involves countries must
permit it, otherwise the company would fist have to be dissolved in the country of origin
(i.e. it would cease to exist) and such as “non-existence” entity would have to register in
the place where it wish to locate its registered office.45
Theoretically, the transfer of registered office from “real seat” country should not be
decisive since it is not a connecting factor. However practice is different and such a
transfer is impossible unless accompanied with the transfer of head office (which will, as
was shown above, generally lead to winding up of a company).46
The company’s migration within European Union is hindered by several obstacles posed
either by the conflicts of laws principles or by the substantive law provisions of the each
Member States. Whereas there is at least generous approach towards the head office
transfer from the family of incorporation countries, the transfer of the registered office is
prevented by numerous legal or practical obstacles.
However, all the Members States
are bound by the European Union law which is migration oriented. Although there is no
secondary legislation at this time, the ECJ through the interpretation of the treaty
CEU eTD Collection
provision tries to pave the way to company’s mobility. The next section examines in
detail the ECJ jurisprudence and its assessment to the cross-border transfer of the seats.
Supra, note 30, at. 30
Supra, note 5, at. 9
45Marek Szyd o, Emigration of companies under the EC Treaty : some thoughts on the opinion of the
Advocate General in the “Cartesio” case, 16 European review of private law = Revue européenne de droit
privé = Europäische Zeitschrift für Privatrecht 979 (2008)
46Supra, note 5, at. 9
44
43
14

2
The seat transfers under ECJ’s jurisprudence
Thus far, we have examined the basic principles of the freedom of establishment and
conflicts of laws rules. Now we turn our focus on their interrelation while taking into the
account the principle of supremacy. 47 The supremacy principle dictates national law to
be in strict compliance with European Union law. National courts, when applying the
Treaties provisions might, find themselves uncertain on their meaning. To achieve their
coherent interpretations within the EU territory, the ECJ is the only body authorized with
this task. In last decades the ECJ when interpreting the provisions on the freedom of
establishment, has delivered significant number of cases where it addressed the issue of
the cross-border seat transfer.
2.1
Relevant ECJ’s case-law
The most relevant cases related to the problem of the corporate mobility are: Daily Mail,
Centros, Uberseering, Inspire Art and Cartesio. The following couple will try to higlight
the gists of each of the cases.
2.1.1 Daily Mail
CEU eTD Collection
Daily Mail was one of the very first cases where the provisions on freedom of
establishment regarding company’s mobility were tested.48 It needs to be pointed out at
the outset, that Daily Mail was not meant to be a case on the cross-border seat transfer. Its
ECJ Costa v ENEL (Case 6/64) [1964] ECR 585; ECJ Internationale Handelsgesellschaft [1970] ECR
1125; ECJ Simmenthal [1978]ECR 629.
48ECJ 81/87 Daily Mail [1998] ECR 5483.
47
15

factual context rather dealt with tax-relating problems. However, the ECJ rephrased the
referred question, since, at that time, it didn’t feel comfortable to tackle exit taxes issue. 49
Daily Mail, a British holding company, intended to sell part of its non-permanent assets
and use proceeds thereof to buy its own shares. In order to evade paying significant taxes
in the UK Daily Mail transferred its central management to the Netherlands.
50
From the perspective of private international law it does not pose any problem neither for
the United Kingdom, nor for the Netherlands since both adhere to the “incorporation”
principle. 51
However, for such a transaction to be possible the consent of the English tax authorities
was required, if company wanted to maintain “its legal personality and its status as a
United Kingdom company.”52 Apparently, the tax authorities seeing in the whole
transaction nothing else but the act of evading the tax requirement refused its approval. It
required Daily Mail to sell at least part of the assets before transferring its residence out
of UK.53 Daily Mail sought sanctuary in ECJ while relying on Art. 52 and 58 of the TEC
[now Articles 49 and 54 TFEU] However, the court held, contrary to its expectations, that
these articles:
(24) […] cannot be interpreted as conferring on companies incorporated under the law of a Member State
a right to transfer their central management and control and their central administration to another
Member State while retaining their status as companies incorporated under the legislation of the first
Member State.
CEU eTD Collection
The court based its reasoning on the presumption that companies, unlike natural persons,
are creatures of the national law and hence they exist only by virtue of national legal
Supra, note 22, at. 14.
Daily Mail par. 6-9
51Daily Mali paras 3, 7
52Ibid. par. 18
53Ibid. par. 8
50
49
16

system.54 Therefore, it is upon discretion of each Member State how it will treat its
domestic companies. The court added that at the present state the transfer matter cannot
be resolved by the rules concerning the freedom of establishment “but must be dealt with
by future legislation or conventions.” 55
2.1.2 Inbound establishment’s case law
The scrutiny of the next category of cases, Centros-Überseering-Inspire Art, pays
attention mainly to the development of company’s possibility to transfer its head office to
another Member State. Although, their main concern is on the transfer of the real seat,
while the registered office remains untouched, they should provide an insight on how
ECJ was successively encountering the seat migration matters. As was examined above,
there are several reasons for companies to travel to another Member State. The attention
will now be paid to the development of this possibility.
In the Centros case,56 a Danish couple formed the company in the UK for the sole
purpose of circumventing the Danish minimum capital requirement. Consequently,
without doing any business in the UK, they tried to establish the branch of Centros in
CEU eTD Collection
Denmark. Their attempt was put off by the Danish authorities that asked them first to
fulfill the minimum capital requirement.57 The Centros brought an action before the
competent court. Since the local court was not acte clair whether the Danish capital
requirement for the registration of a branch was within the frame of the freedom of
Ibid. par. 19
Ibid. par. 23
56ECJ Case C-212/97 Centros [1999] ECR I-1459.
57Ibid., paras. 3-8.
55
54
17

establishment, it referred the issue to ECJ. The ECJ made it clear that Danish rules were
incompatible with the freedom of establishment, even though Centros did not carry any
business in the UK and its sole purpose of setting up a branch is to carry out all its
business activity through this branch. 58
Centros is a breakthrough judgment regarding to the immigration of companies within
European Union. Despite the absence of legislation dealing with mutual recognition of
companies, the Luxembourg court obliged Member States to recognize company
established under the law of another Member State even if their own private international
law rules, as was the case of Danish rules based on real seat theory, would dictate that
company have to be incorporated under their own law.59 Although factual context of
Centros has been interpreted by the Court as dealing with the secondary establishment,
given the fact that it carried out all business activities solely in Denmark, the Centros
company sought in fact to transfer its real seat abroad.60
Subsequently, in 2002 the ECJ dealt with another significant case which undermined the
basis of the “real seat” doctrine. In the Überseering case, 61 the Dutch company properly
incorporated in Netherlands, was denied standing in the German court on the ground of
the lack of legal capacity. The German court claimed that once all of the Überseering’s
CEU eTD Collection
shares have been acquired by the German citizens, the company has de facto transferred
its real seat to Germany.62 Überseering failed to comply with German law, since, at that
time, Germany required the linkage of the head office with the place of incorporation.
Ibid., paras. 20-21.
Justin Borg-Barthet, European private international law of companies after Cartesio, 58 International
and Comparative Law Quarterly 1022 (2009).
60Supra, note 37 at. 179; and supra, note 21, at. 50
61ECJ Case C-208/00 Überseering [2002] ECR I-9919.
62Ibid., p. 9.
59
58
18

Therefore Überseering lost its capacity and had no standing in the court. To meet the
German requirement, the Überseering would have to be reincorporated in Germany. 63
The ECJ denied this argument and held that the requirement to reincorporate amounts to
the outright negation of freedom of establishment.64 In essence the court concluded that
the application of the “real seat” theory to the foreign company incorporated in another
MS that leads to the denying of its legal personality runs counter the Treaty provisions on
the freedom of establishment.
The Inspire Art65 went one step further and definitely forbade Member States to treat
differently companies carrying on their business activities exclusively in its territory
while being incorporated in another Member State (i.e. pseudo-foreign companies).66 The
Inspire Art, a UK company with a Dutch citizen as a sole shareholder, decided to set up a
branch in the Netherlands. When registering in the commercial register it omitted to
indicate that it is formally foreign company (pseudo-foreign company) within the
meaning of the Dutch law on the ground that it was doing business exclusively in the
Netherlands.67 As a pseudo-foreign company, the Inspire Art would, inter alia, have to
satisfy the minimum capital requirement.68 The ECJ held that Dutch rules are
incompatible with the freedom of establishment.69
CEU eTD Collection
It appears that in attempt to justify the outcome of Daily Mail, the Court70 involved itself
in differentiating between the inbound establishments; i.e. company seeking to enter into
Ibid., p. 4-5.
Ibid., p. 81.
65ECJ Case C-167/01 Inspire Art [2003] ECR I-10155.
66Werner F. Ebke, The European conflict-of-corporate-laws revolution : “Überseering”, “Inspire Art” and
beyond, 38 The International Lawyer 813 (2004).
67Inspire Art, paras. 35-36.
68Ibid., par. 28.
69Ibid., par. 105.
70Überseering, paras. 61-73 and Inspire Art par. 103.
64
63
19

the territory of one Member States and outbound establishment; i.e. company seeking to
leave the territory of domestic Member State.71 Whereas the former has been achieved,
the latter may be is still hindered by application of national laws.
Even though, the Advocate General Maduro in his opinion to the Cartesio case, 72 which
will be discussed in the following pages, criticizes the Court’s previous reasoning based
on the distinction between the inbound and outbound cases, the Court itself continues in
line of this logic.
2.1.3 Cartesio
In the light of uncertainties around the companies’ migration, the Cartesio had
opportunity to give freedom to emigrating companies and destroy the difference in
treatment of outbound and inbound establishment. Although it narrowed the ambit of the
real seat theory, it didn’t give way to companies‘ emigration. Companies are still
desperately waiting on amber light traffic light, for the green signal to start flashing.
In the Cartesio case,73 a Hungarian limited partnership, sought to transfer its head office
to Italy while retaining its legal personality under Hungarian law. The court refused to
register the change of the address into the commercial register on the ground that the
existing Hungarian law did not permit such a transaction. 74 Had a change in the address
CEU eTD Collection
took place within Hungary, the new address would be registered without any problem. 75
However, from the cross-border perspective the transfer of the head office was not
See for the crytical survey of both conceptions: Wolf-Georg Ringe, No Freedom of Emigration for
Companies? 16 European Business Law Review (2005). Available at
SSRN:http://ssrn.com/abstract=1085544
72Opinion of Advocate General Maduro in Cartesio Case C-210/06, point 28.
73Case C-210/06 Cartesio Oktató Szoláltató bt [2008] ECR I-00000.
74Ibid., paras. 1,24,102.
75Opinion of Advocate General Maduro in Cartesio Case C-210/06, point 22.
71
20

possible. Cartesio would first have to be liquidated in Hungary and only afterwards newly
formed in Italy. 76 The question referred to the Luxemburg court was whether Art. 43 and
48 TEC [now Articles 49 and 54 TFEU] impede the MS to prevent its company from
transferring its seat to another MS while remaining to be a subject of that law.77 The court
answered the question in negative. The ECJ confirmed the reasoning of Daily Mail and
thus concluded that the question can, in the absence of European legislation, only be
answered by the applicable domestic law. 78
As a corollary, the Member States retained the right:
(110)[…] to define both the connecting factor required of a company if it is to be regarded as
incorporated under the law of that MS and, as such, capable of enjoying the right of establishment, and that
required if the company is to be able subsequently to maintain that status. […]
In the context of the seat transfer it means that Member States were left the right to
prevent to company to transfer its head office abroad when company intends to retain its
legal status under that law. Thus Member States may continue to require the dissolution
and liquidation of company prior the seat transfer.79
Despite the initial disappointment that the judgment seems to bring, we cannot conceive
the Cartesio verdict as a step backwards. Reading the judgment till the end, we will find
in its very last paragraphs a major achievement. There is where the court distinguished
CEU eTD Collection
the above-mentioned situation (the transfer of the head office without the change of the
applicable law) from the one where the company moves to another MS with the change
of applicable law.80 In this case, unlike in Cartesio where company wanted to remain
Cartesio, par. 103.
Ibid., par. 99.
78Ibid., par. 109.
79Eva-Maria Kieninger, The Law Applicable to Corporations in the EC, 73 Rabels Zeitschrift für
ausländisches und internationales Recht 616 (2009).
80Cartesio, par. 111
77
76
21

subject of Hungarian law, the MS may not hinder the “company from converting itself
into a company governed by the law of other Member State,” provided that “it is
permitted under that law to do so” Any requirement of prior winding up or liquidation of
the company would equal to the restriction which is not justified under the freedom of
establishment.81 The ECJ, therefore, identifies this conversion option of migration to be
covered by the freedom of establishment.82 Had the Cartesio transferred its seat to the
Italy by way of converting itself into an Italian S.a.s, then – if it would be permitted under
Italian law- Hungary could not hinder such a transaction. 83
2.1.4 Advocate General opinion in Cartesio
There are several opinions among scholars84 that it would be more appropriate and
coherent with the previous case law, if the ECJ had followed the opinion of the Advocate
General.85
The Advocate General, Portuguese jurist Poiares Maduro, maintained a different position.
He concluded that the Hungarian law that does not allow the cross-border transfer of the
real seat infringes Articles 43 and 48 TEC [now Articles 49 and 54 TFEU]. He based his
opinion on the Sevic’s judgment reasoning: “National rules that allow a company to
CEU eTD Collection
Ibid., par. 112-113
ADRIAAN F.M. DORRESTEIJN, EUROPEAN CORPORATE LAW 38 (KLUWER LAW
INTERNATIONAL: ALPHEN/RIJN, 2nd ed. 2009)
83Jan Bohrenkämper, Corporate mobility across European borders : still no freedom of emigration for
companies? (“CARTESIO Oktató és Szolgáltató bt”, ECJ (Grand Chamber), judgment of 16 December
2008, C-218/06), 3 European Law Reporter 86 (2009).
84Among others : Justin Borg-Barthet (Supra, note 59).
85António Frada de Sousa, Comapny’s cross border transfer of seat in the EU after Cartesio, Jean Monnet
Working paper 49, 07/09.
82
81
22

transfer its operational headquarters only within the national territory clearly treat
cross-border situations less favorably than purely national situations.“86
By elaborating the earlier ECJ jurisprudence he was of the opinion that cases regarding
the freedom of establishment do not represent the case-law and its underlying logic
accurately.
By providing Überseering as an example it reached the conclusion that the effective
exercise of freedom of establishment implies that neither theory can be applied in its
fullest logical extension.87
Admittedly the Advocate General, like the ECJ did in Cartesio, refrained from favoring
any connecting factor. Although, he also avoided burying the “real seat” principle, he
based his opinion on somehow different logic. He emphasized that Member States do not
any longer have absolute freedom to determine the ‘life and death’ of companies
constituted under their domestic law, but he would allow Member States to prevent the
company from transferring their operational headquarters when protection of the general
public interest requires it.88 However, he concluded that restrictions in Cartesio can‘t be
justified on the basis of general public interest, since Hungarian law doesn’t provided for
any conditions, it rather outrightly prohibits any transfer of the real seat abroad.
CEU eTD Collection
Therefore Maduro suggested, contrary what was concluded in the judgment, to declare
Hungarian national rules incompatible with the freedom of establishment. 89
Opinion of Advocate General Tizzano in SEVIC case Case C-411/03, point 25.
Ibid., point 30.
88Ibid., point 31, 33.
89Ibid., point 35.
87
86
23

2.2
The Impact of ECJ jurisprudence on the seat transfers
2.2.1 Transfer of the head office
Impact of the ECJ jurisprudence on the transfer of the head office is quite significant
especially when it comes to Member States adhering to the „real seat” doctrine. The
ECJ’s verdicts do not fundamentally affect the incorporation countries, which as a matter
of a principle, allow their companies to relocate their real seat.
The ECJ through its interpretation broaden the scope of the freedom of establishment to
situation of inbound transfer of the company’s real seat.
While moving in now is
generally admissible unless prevented on the ground of general public interest, moving
out remains unresolved. 90 Especially the Überseering case is of high importance here,
since it forbids MS to apply the „real seat” doctrine to the companies moving the head
office to its territory. The company must be recognized and cannot be forced to
reincorporate in order to achieve this status.91
However, when it comes to the transfer of the „head office“ abroad, the freedom of
establishment provisions are not at disposal here. In Cartesio, the court reaffirmed the
verdict in Daily Mail that companies are artificial creatures of national legal system92
CEU eTD Collection
and thus move along with the assumption that the right to create the company is
tantamount to the right to nullify it when the companies decides to leave that
jurisdiction.93
Supra, note 30, at. 13
Überseering, par. 81.
92Daily Mail, par. 19 and Cartesio 109.
93Supra, note 37, at. 207
91
90
24

Although, Cartesio left the emigration of the company‘s head office outside the scope of
the freedom of establishment, Member States are individually altering their legal system
and adopting the incorporation principle. The reason behind is to allow their companies
to transfer the head office abroad and thus enable them to enjoy the same competitive
advantage that is already given to companies coming from the incorporation “camp.”
2.2.2 The unprompted way to the “incorporation“ principle
The following pages provide a brief insight on how the “real seat” Member States are
inclined to switch to the “incorporation” principle.
Firstly, we should take a look at the Hungarian Law. Hungary, already during the
preliminary ruling of Cartesio case changed its law on Commercial Register. From that
time on, the Commercial Register differentiates between the registered office and real
seat; and those don’t have been within same place.94 Practically, if factual context of
Cartesio had been decided under the current Hungarian law, the outcome would have
been different and the case would have never reached the ECJ stage. It remains of the
interest to note, that position of the Hungarian legislation as regards the private
international law was not clear-cut in the time of Cartesio. The Hungarian law on
CEU eTD Collection
Commercial Register was not compatible with the principle of incorporation proclaimed
by the Hungarian private international rules.95 While rules of Hungarian private
international law provided for an incorporation theory,96 according to the law on the
commercial register, a company would have been governed by the place of central
Daniel Deák, Outbound establishment revisited in Cartesio, 17 EC Tax Review 251(2008).
László Burián, Personal law of companies and freedom of establishment, 61 Revue hellénique de droit
international 76 (2008).
96Art. 18 (2) Decree-Law no 13 of 1979 on private international rules
95
94
25

administration 97 By reference to this administrative rule, which on one hand was not part
of PIL Act but which on the other limited the application of Hungarian Law on
commercial companies, the Hungarian legal entities were prevented from transferring
their real seat abroad.98
Secondly, Austrian Supreme Court held, reacting to the Centros decision, that real seat
doctrine can no longer be applied since it violates the freedom of establishment
guaranteed under the EC Treaty [now TFEU].99 The verdict of the Austrian Supreme
Court has been largely criticized among the Austrian academic writers.100
Thirdly, Belgium maintained less strict approach to the abolishment of the real seat
doctrine. They still seem to be favoring this principle unless general rule of the Code on
Private international law gives preference to the international treaty or Law of the
European Union. 101
Lastly, recent developments show, that even Germany, conceived to have of the strictest
”real seat“ regime, is about to shift to the “incorporation” principle. Indeed, Germany
passed the new law in order to increase the flexibility and competitiveness of its domestic
companies. Since November 1, 2008, it is therefore no longer necessary for German
private and public companies to have their real seat in Germany. 102
CEU eTD Collection
Article 16 (1) of the Law No CXLV of 1997 on Commercial register, company advertising and legal
procedure in commercial register matter
98DIRK VAN GERVEN, CROSS-BORDER MERGERS IN EUROPE 63-64 (CAMBRIDGE
UNIVERSITY PRESS: CAMBRIDGE 2010)
http://books.google.com/books?id=8mafhz3gyMoC&pg=PR10&dq=dirk+van+gerven+2010&hl=sk&cd=1
#v=onepage&q=dirk%20van%20gerven%202010&f=false
99Supra, note 13, at. 255
100See for example Norbert Kuehrer, Cross-border company establishment between the UK and Austria,
12 European Business Law Review 116 (2001).
101Supra, note 79, at. 611
102Frank Wooldridge, Recent reforms of the German GmBH, 31Company Lawyer 62 (2010).
97
26

Besides, the German private international law keeps up with this trend. To put it more
precisely, German Ministry of Justice formed the working group of experts whose task
was to report on the reform of private international law of companies. 103 On the ground of
their work, the draft bill on private international rules for companies was introduced, that
will, inter alia, replace the “real seat” doctrine by the incorporation doctrine. 104
2.2.3 Transfer of the registered office
As was explained in the first chapter, the feasibility of the transfer of the registered office
does not stem from any private international law principle and was not until recently
covered by the freedom of establishment.105 It is of the interest to note that the ECJ had
opportunity to visit the matter the few ago when administrative court of Heidelbeg
referred to the ECJ the issue regarding the transfer of a registered office from Germany to
Spain. However, the preliminary procedure was denied from the procedural reasons.106
Basically, until Cartesio, it was impossible to transfer the registered office without prior
winding-up of the company in the home State and subsequent reincorporation in the host
state.107 Those burdensome, time and cost consuming procedures made the transfer of the
CEU eTD Collection
registered office far from being attractive to the companies’ managers.108 Here is where,
Cartesio brought a breakthrough achievement. In his obiter, the court decided that the
freedom of establishment enshrines the right to transfer the registered office and thus to
103
104
Supra, note 21, at. 53-54
Supra, note 21, at. 45
105Supra, note 79, at. 617
106Supra, note 31, at. 254
107Supra, note 9
108Id.
27

change the applicable law by way of converting the company into a form of company
which is governed by the law of the host state.109
Therefore, Member States cannot any longer require the dissolution or liquidation of a
company when it is moving its registered office abroad by the way of conversion.110
Even thought the company’s registered office is now allowed to travel abroad, the
success of whole operation is still contingent on the approach of the country of arrival,
since the ECJ put the limit on the conversion mechanism by emphasizing – to the extent
that is permitted under that law to do so. The country of arrival would need to provide
for the possibility for immigrating company to be converted into the recognizable type of
company and as such entered into the commercial register without being required to be
newly incorporated.
However, it is unclear what the Court precisely meant under this formulation. Does the
Court stand for the formal act of the conversion? If this is the case, the formal act of
conversion of the foreign company into the domestic is only stipulated by legislation of
Cyprus, Malta and Portugal. 111 On the other hand, some other Member States give the
company the right to relocate the legal seat from or into their territory without mentioning
the option of conversion. The registered office is theoretically free to cross the borders of
CEU eTD Collection
109
110
Cartesio, par. 111.
Ibid., par. 112
111Supra, note 98, at. 63-64, see further António Frada de Sousa, Comapny’s cross border transfer of seat
in the EU after Cartesio, Jean Monnet Working paper 11-12, 07/09; and for Cyprus see further Cyprus: A
New Option for Transfer-In Companies
http://www.alycolaw.com/assets/mainmenu/35/editor/Articles_Transfer_Of_Registered_Office.pdf It
states that Cyprus tries to attract investors by creating the competitive advantageous field for them. Among
others, it introduced the legislation enabling existing companies submit themselves into the Cyprian
corporate law.
28

Slovakia, as well as Czech Republic. However the transaction is conditioned upon the
existence of an international treaty. 112
Cartesio might be considered as a challenge, however, not the obligation for the MS to
establish the rules allowing smooth one-step conversion for foreign companies. 113
One might assume that the number of countries with the conversion mechanism will
grow. Given that Cartesio judgment is very recent and since the legislative procedure is
long-lasting process it requires some period till MS give the indication of the way they
treat the Cartesio’s challenge.114
2.2.4 Substantive law provisions of some Member States
In the section bellow, I will describe endeavour of some Member States to tackle the
issue of the transfer of the registered office. The attention will be paid to the leading
jurisdictions (Germany, the UK) and to the most recent (according to my research)
legislation measure enacted by the Spanish government.
As far as the German jurisdicition is concerned, the transfer of the registered office, as
well as the transfer of the central administration, into or outside the territory of Germany
was generally inadmissible. 115 It may be demonstrated by the decision of Munich
CEU eTD Collection
Oberlandesgerichthof, which denied the possibility of the German private limited
company to transfer its registered office to Portugal. 116
112
113
Art. 26 Slovak Commercial Code 513/1991
Supra, note 20, at. 389-403
114Supra, note 20, at. 399
115Supra, note 31, at. 21
116Supra, note 79, at. 617
29

Although, as it has been pointed out above, Germany is on the right track to abolish the
real seat doctrine definitely. As far as the transfer of registered office is concerned, the
Ministry draft bill, even though it allows such a transaction, is not precise enough.117
Article 10b of the Ministerial proposal defines only the situation which triggers the
change of the applicable law; entry into the pubic register of another state. Taking into
the consideration that the entry into the pubic register is tantamount to the transfer of the
registered seat, the transfer of registered office will be, once the draft bill is enacted,
possible. Any company wishing to re-register in Germany, as well as any domestic
company abroad, will be allowed to do so without being liquidated and re-incorporated,
provided that the target state allows it and preconditions of both states are fulfilled.
Although, the draft bill omits to state which pre-conditions are needed to be met before
such a transaction can occur.118
It remains of the interest to note that the expert’s report did determine the preconditions
that would have to be met by a company wishing to transfer its seat.
There is no provision in the UK Companies Act 2006 allowing an English company to
transfer its registered office to another MS, not even to Scotland.119 The most significant
CEU eTD Collection
reasons why the UK is resistant to the transfer are tax losses and possible harmful effects
on the rights of shareholders, creditors and employees.120 If it occurs, the company won’t
be liquidated but the resolution to transfer will be held ineffective given the company will
117
118
Supra, note 21, at. 61
Supra, note 21, at. 61
119Supra, note 14, at. 145
120Supra, note 71, at. p. 3
30

be regarded as incorporated in the target state while still considered existent under
original English law. 121
In the light of Cartesio, it seems that UK will need to amend its law and allow the transfer
of the registered office, at least to the extent, protected by Cartesio.
Under the UK law, neither a foreign company can convert itself into an English company
Although the UK government considered the option to regulate outbound and inbound
transfer of the registered office of the companies, finally it decided not to address the
issue and thus did not propose any measure in this respect. The reluctance of the UK
government can be justified on the ground that it didn’t want to „pre-judge the outcome
of the EU negotiations“, since it expected the European Commission proposal for a 14th
company law directive on cross-border seat transfer in a foreseeable future. The directive
would call for the implementation and the UK would have to harmonize its national law
anyway according to it.122
However, as noted bellow, in the meanwhile the European Commission withdrew the
work on the Fourteenth Directive from its agenda. The UK Government may be well
advised to introduce conversion mechanism and thus create level playing field for the
market of reincorporation, as it already does for the incorporation. 123
CEU eTD Collection
The Spanish Government did not wait nor for the outcome of Cartesio, nor for the
legislative initiative from the European Commission and it rather seized the opportunity
to regulate the transfer of the registered office on its own. Therefore, Spain is according
121
122
Supra, note 31, at. 16-21
Company Law Reform (CM 6456, UK Goverment -The Department of Trade and Industry- White
Paper, 2005 Availabe at http://www.berr.gov.uk/files/file13958.pdf, p. 48-49
123Supra, note 20, at. 399
31

to my knowledge, the country with the most recent legislation regulating expressly the
transfer of the registered office abroad, as well as the transfer into the Spanish territory.
The law on structural modification of commercial companies entered into force on July 4
2009.124 With respect to the transfer of registered office of a foreign company into Spain,
the SML regulates the immigration of companies incorporated both within and outside
the EEA.125 However, the non-EEA companies must meet the additional requirement as
regards the minimum share capital. 126
The relocation of registered office abroad may only be accomplished provided that the
host MS enables the preservation of the legal status in case of such a transaction. 127
Comparing to Cartesio dictum on conversion which enables the transfer to the extant
allowed by the host Member State, one might conclude that the SML is based on the
same logic.
SML designs also procedural rules to maintain coherent procedure and to protect the
interest of the involved parties. Preparation and approval of the transfer proposal by the
company’s directors, registration of transfer proposal by Commercial registry and
approval by shareholders meeting , protection of creditors and the shareholders who
voted against the transfer of registered office by giving them the right of withdrawal. 128
CEU eTD Collection
Furthermore, SML expressly excludes the companies under liquidation or insolvency
proceeding to benefit from the right to transfer their registered offices.
124
Carlos Franco, The Spanish law on structural modifications of corporations, The Spanish law on
structural modifications of corporations, 24 Journal of International Banking Law and Regulation 529-530
(2009).
125Miguel Torres, Spain: Company law – Relocation of registered office, 24 International Company and
Commercial Law Review N10 (2009)
126Supra, note 124, at. 530
127Supra, note 124, at. 530
128Supra, note 125, at. n9, 10
32

Spanish legislation is very liberal. It does not demand any documents proving the
compliance with the requirement of company law of the place of origin. 129 The transfer
must only conform to the Spanish provision of respective type of corporation, unless
otherwise stated in international treaties.130
CEU eTD Collection
129
130
Supra, note 125, at. N 11
Supra, note 124, at. 530
33

3 The transfer of the registered office under the EU
secondary legislation
The European Union may legislate only within the ambit of the principle of conferral,
which is laid down in Article 5 (1) TEU [ex Article 5 (1) TEC]. It means that the Union
may act only within the powers conferred upon up it by the Member States and thus can
only be active only on the basis guaranteed in the Treaties. The basis for the legal
measure necessary for the achievement of the freedom of establishment is Article 50
TFEU [ex Article 44 TEC], which empowers the Council and the European Parliament to
enact directives. By enacting directives the Union attempts to harmonize company’s law
of its Member States. However, despite the strive of the market for a directive enabling
the direct transfer of the registered office, the issue remains untouched by the secondary
legislation. The long awaited 14th Company law Directive on the cross border transfer of
companies’ registered offices, if once enacted, could fulfill the businessmen desires.
However, the Commission stopped its work on this project. The reasons for the
Commissions non-actions as well as its suggestion to follow the procedures under SE
Regulation131 and 10th Company law directive132 when wishing to move abroad are
CEU eTD Collection
examined bellow. Having weighed the arguments of those currently available procedures
and direct one which would be at disposal under the 14th Company Law Directive, the
conclusion is reached that the legal measure is required.
131
Council Regulation EC 2157/2001 of 8 October 2001 on the Statute for a European Company (SE) OJ L
294
132Directive 2005/56/EC of the European Parliament and the Council of 26th October 2005 on cross-border
mergers of limited liability companies OJ L 310
34

3.1
The indirect possibility of the cross-border migration
The current EU secondary legislation offers the prospect for the indirect transfer of the
registered office by virtue of SE Regulation and Cross-border merger directive. These
possibilities are described as indirect, since they do not provide for smooth a singe step
transfer. On the contrary, company has to undergo either three steps procedure (the SE)
or two steps (cross-border merger) one, when it wants to re-register.133 Apparently, these
procedures are far from being attractive to businessmen.134
The Cross-border merger Directive constitutes the possibility for limited liability
companies (both private and public) to transfer their registered office by way of setting a
subsidiary in the host Member State and consequently merging the existing company into
this subsidiary (speech). As a corollary, by the way of merging of existing company into
its subsidiary, the registered office is transferred and the continuity of the legal
personality of the initial company is in principle preserved.135
However, the procedure is very costly and time-consuming given the fact that the
company needs to establish a subsidiary and then to follow all the procedural formalities
required when carrying on the cross-border merger. 136
Another option is currently available under the SE-Regulation. In order to avail itself of
CEU eTD Collection
the SE option, the subsequent procedure must be followed. Primarily, an existing
company needs to be converted into the SE. Then as a SE, it can transfer its registered
Gert-Jan Vossestein, Cross-border transfer of seat and conversion of companies under the EC Treaty
provisions of freedom of establishment : Some considerations on the Court of Justice’s Cartesio judgment,
6 European company law 60 (2009).
134Supra, note 5, at. 5:; 7 SE have transfered their registered office so far and 2 are planning to do so.
135Christiana Panayi, Corporate Mobility in Private International Law and European Community Law:
Debunking Some Myths, 28 Yearbook of European law 25 (2009), available at SSRN:
http://ssrn.com/abstract=1437555
136Supra, note 5, at. 40 ;xamined all the procedural steps in detail.
133
35

office to intended Member State. Finally, it can transform back into a public limited
company. 137 However, the attractiveness of this option is thwarted by several obstacles.
Firstly, the transfer of the SE’s registered office must be accompanied by the
simultaneous transfer of the de facto head office, since SE Regulation requires both seats
to coincide in one MS.138
Secondly, the SE conversion option is only possible for a pubic limited company that has
had a subsidiary company governed by the law of another Member State for minimum
two years.
Article 37(3) constitutes additional obstacles discouraging managers from resolving to
the SE transfer of registered office. It prohibits the transfer of the registered office
simultaneously with the conversion. It means that, only when the process of the
conversion of a public limited company is completed, the SE may transfer its registered
office.139 It is not likely that this long-lasting procedure would be attractive for the
company. It would take minimum three months to accomplish this process: one month for
the conversion140 and two months for the transfer of the registered office.141
Besides, taking into consideration the minimum capital requirement (120.000 €142), broad
structure and worker involvement143, it is hard to imagine that company wishing merely
CEU eTD Collection
to transfer its legal seat would face so many obstacles just to fulfill its goal. Taking into
account that small and medium sized enterprises were considered to be primary
Gert-Jan Vossestein, Cross-border transfer of seat and conversion of companies under the EC Treaty
provisions of freedom of establishment : Some considerations on the Court of Justice’s Cartesio judgment,
6 European company law 60 (2009).
138Art. 7 SE Regulation.
139Eck, Gerco C. Van, SE mobility: taking a short cut? A recommendation for amendment of the SE
regulation, 6 European company law 108 (2009)
140Art. 37 (5) SE Regulation
141Supra, note 139, at. 108
142Ibid., Art. 4 (2)
143Ibid., Art.12
137
36

beneficiaries of the 14 th Directive, the Commissioners’ suggestion to wait until “the
framework is found wanting” sounds even more astonishing in the light of these facts.144
Apparently, already at the present state, one might conclude that the available options are
unsatisfactory. 145
3.2
The future scenario of the transfer of the registered office-
the 14th Company Law Directive
The road to the achievement of the 14th Company Directive has been described among
the academic scholars as the long and winding. 146 Truly, as this paper will show bellow,
the indication is nothing but appropriate.
The round of the public consultation in 1997 and 2002 already emphasized the demand of
the business world to be given the opportunity to relocate their companies by smooth and
quick transaction into the country which they consider to have better corporate climate. In
case that companies avail themselves of this transfer possibility, they should be able to do
so without the fear of losing their legal personality. 147
Initially, all the steps taken by the European Commission led to the achievement of this
CEU eTD Collection
goal. The Commission stimulated by the report drew up by the High Level Group of
144
Supra, note 1, at. 373
General consultation round carried out in December 2005 confirmed that there is still pressing need
(79.6% of the respondent) for a directive, available at:
http://ec.europa.eu/internal_market/company/docs/consultation/final_report_en.pdf
146Stephan Rammeloo, The 14th Company Law Directive on the cross-border transfer of the registered
office of limited liability companies : now or never?, 14 Maastricht journal of European and comparative
law 362 (2008).
147European Commission, The public consultation relates to the outline of the planned proposal for a 14th
Company Law Directive on the cross-border transfer of the registered office of limited companies; A need
felt by the market, sub 1 availabe at: http://ec.europa.eu/internal_market/company/seat-transfer/2004-
consult_en.htm
145
37

Company Experts148 undertook, in its Action Plan149, to present as the top priority in
short-term period the proposal of the 14th Company Law Directive.
Quite surprisingly, Commissioner McCreevy’s speech thwarted that way. 150 In October
2007 he announced before the European Parliament Legal Affair Committee there is no
need for an action in this area. Having examined the economic consequences, he
suggested that it would be more appropriate to wait for the clarification that might be
brought by, at that time, pending case of Cartesio. Besides, he drew the attention to the
seat transfers possibility by the means of the European Company Statute Regulation and
the cross-border Merger Directive. As was shown above, these procedures are time-
consuming and burdensome and the Directive would introduce more tempting offer for
existing companies.
3.2.1 The safeguards of the 14th Directive
The future 14th Directive even though, if once enacted, would constitute a major step
forward for businessmen wishing to relocate their company, it could pose a field for
speculates who would initiate business transactions for no other purposes than to
circumvent the companies obligations.151 Groups in danger are especially minority
CEU eTD Collection
shareholders, creditors and other 3rd parties involved for who the protection is required to
Report of the High Level Group of Company Law Experts on a Modern Regulatory for Company Law
th
in Europe, Brussels, 4 November 2002. Availabe at
http://www.ecgi.org/publications/documents/report_en.pdf
149Communication from the Commission to the Council and the European Parliament, Modernising
Company Law and Enhancing Corporate Governance in the European Union – A Plan to Move Froward,
COM(2003) 284 final, 21.5.2003. p. 20
available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2003:0284:FIN:EN:PDF
150SPEECH/07/592 of 3 October 2007 (Speech by Commissioner McCreevy at the European Parliament’s
Legal Affairs Committee, Brussels)
http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/07/592
151Supra, note 1, at. 391
148
38

be provided.152 The departing Member State would have to furnish rules securing the
proportionate protection for the minority shareholders and creditors.153
Secondly, as far as rights of shareholders are concerned, the Directive should secure that
a Member State would oblige companies to disclose all the relevant documents in order
to achieve the transparency of the whole procedure. Besides, the EP resolution suggests
that managers should draw up a transfer proposal and a transfer report prior calling the
shareholders’ meeting to take the decision upon the transfer of the registered office. The
report and the plan would have to state economic and legal impacts on the shareholders
and employees.154 Since the decision, if adopted, would fundamentally reorganize the
companies’ structure, each MS should, as minimum, require the majority needed for
altering the memorandum and the article of association. 155
Thirdly, the directive should call for mutual assistance between the MS engaged. Their
coordination is mainly important for protecting company not to become “stateless”.
Therefore, Member States would be allowed to do the de-registration only after the
submission of the evidence proving the entrance into the register in a new MS. 156
However, for the legal certainty the transfer should remain recorded in the register of
home country. 157 Besides, the Directive should safeguard the tax neutrality of the transfer
CEU eTD Collection
procedure.158 Fear of the tax looses is one of the reasons why the states remain hostile to
companies emigration. Hence the most jurisdictions traditionally levied considerable exit
152
European Parliament resolution of 10th March 2009 with recommendations to the Commission on the
cross-border transfer of the registered office of a company, (2008/2196(INI)
153Supra, note 5, at. 47-49 (2007).
154EP resolution p. 6
155EP recommendation p. 3
156EP recommendation 4
157European Commission, The public consultation relates to the outline of the planned proposal for a 14th
Company Law Directive on the cross-border transfer of the registered office of limited
companies;Coordination Directive, sub. 6.
158Ibid., sub. 9.
39

taxes on a emigrating company. 159 Exit taxes are charges imposed on unrealized capital
gains on the asset of a person leaving the jurisdiction160 The ECJ had the opportunity to
address the question of exit taxes in Lasteyrie du Saillant. The Court held that they
constitute an unjustified restriction on the freedom of establishment, since exit taxes
hinder the ability of individuals to move their business into the territory of another MS.
Furthermore, the directive should safeguard the employee participation. The directive
shall envisage that these rights should be governed by new Member States, unless they
are more firmly enshrined in the home MS. If this is the case, scope of employees’
participation should be maintained or negotiated.161 It appears that home MS would
demand to allow for bargaining for variation of its rights, however, it is necessary to state
where the limits for these negations are.
162
As mentioned above, the SE Regulation
provides the solution: in case the settlement is not reached through mandatory negations,
the default rules on workers’ co-determination would apply. 163 Opponents argue that the
involving of the employment regime into the Directive would make it less attractive. On the other hand,
leaving the co-determination outside the scope of Directive might cause that Member States with strong
worker regime would not support its adoption. In this respect, German advanced workers’ co-
determination system needs to be mentioned. It requires the large enterprise with more
than 2,000 employees to have workers representative on their supervisory board.
CEU eTD Collection
164
It is
one of the reasons why German government has steadily blocked the adoption of SE.
159
160
Supra, note 35, at. 6
Supra, note 26, at. 469
161European Commission, The public consultation relates to the outline of the planned proposal for a 14th
Company Law Directive on the cross-border transfer of the registered office of limited companies;
A coordinative directive http://ec.europa.eu/internal_market/company/seat-transfer/2004-consult_en.htm
162Supra, note 9, at. 162
163Supra, note 5, at. 50
164Supra, note 21, at. 58
40

However, as we might see, they finally overcame the difficulties. This reconciliation may
serve as the basis for workers’ co-determination in respect of the 14th Directive. 165
Lastly, the Directive shall secure that Member State would not allow the transfer of the
registered office of a company under the insolvency or liquidation process to transfer its
registered office.166 Similar rule might be found in Spanish or Italian laws. Also Spanish
companies which are subject to insolvency or liquidation proceeding are not permitted to
transfer their registered office.167 Italian law is even stricter, by stating that the transfer of
the companies’ registered office one year before the commencement of the insolvency
proceeding is not possible.168
The EU law has already stepped it and since 2000 is regulating the cross-border
insolvency regime (EC Regulation on Insolvency Proceedings 1346/2000). It is based on
the concept of the debtor’s centre of main interest (COMI). The reputable presumption is
that COMI is where the registered office is located. However, especially to avoid abuse in
the event of the migration of the real seat, it might be rebutted when company has closer
ties with another legal system. 169
CEU eTD Collection
165
Supra, note 21, at. 22
EP resolution recommendation 6
167Supra, note 125, at. N9
168Susan Moore, COMI Migration: The Future, 22 Insolvency Intelligence 27 (2009); for the Insolvency
procedure see further SRMJ 1:
169Supra, note 1, at. 391
166
41

3.2.2 Transfer of registered office with versus without simultaneous
transfer of the head office?
The matter that needs to be clearly resolved by the 14th Directive is whether the transfer
of the registered office would require to be accompanied by the transfer of the real seat.
The Impact Assessment tested both possible attitudes that future directive may adopt;
under limited approach the relocation of the registered office with simultaneous transfer
of the real seat and under extensive approach the transfer of the transfer of the registered
office alone. 170
The “limited approach”, does not intend to interfere with the Member States’ conflicts of
laws rules and hence leaves it for the MS of arrival conflicts of law rules to determine the
solution. 171
Accordingly, MS adhering to a real seat doctrine would be allowed to demand companies
to transfer the registered office together with the real seat. Differently, companies moving
to the country applying the incorporation principle would be permitted to relocate their
registered office alone, without the need move of their real seat.172 It needs to be
reminded that also under the SE Regulation leas towards this approach and require
CEU eTD Collection
company’s registered office and head office to be located within the Community in the
same Member State.173
Secondly, the “extensive approach”, if followed by the Directive, would give companies
full freedom to transfer their registered office by expressly prohibiting any requirement
170
171
Supra, note 5, at. 42
Supra, note 9, at. 1256
172Supra, note 37, at. 192
173Art. 7 SE Regulation. Furthermore, the MS may even required the seats to be located in the same place
42

for the transaction to be accompanied with the relocation of the head office. Companies
would be allowed to choose the any MS which best fits their corporate climate. 174
The European Parliament resolution leans towards the extensive approach, by stating that
rule requiring the coincidence of the head office and registered office in one MS “would
run counter to the case-law of the ECJ relating to the freedom of establishment and would
therefore infringe the EC law”175
CEU eTD Collection
174
175
Supra, note 5, at. 45
EP Resolution point G.
43

Conclusion
This thesis tried to answer the question whether the transfer of the company’s registered
office within the European Union is possible.
The First chapter attempted by the comparative analysis of divergent connecting factor
answer the question from the perspective of the conflicts of law rules. Unlike, the transfer
of the head office which doesn’t basically cause any problem for countries adhering to
the incorporation principle, the possibility of the transfer of the company’s registered
office is a problem for both, the “incorporation” doctrine as well as for the “real seat”
doctrine. The second chapter provided an excursion through the ECJ jurisprudence. The
ECJ in several cases tested the compatibility of domestic provisions with the freedom of
establishment. The court is broadening the ambit of the its context by preventing the
Member States to apply the rules that cause the free mobility provision impossible.
Whereas the freedom of immigration has been fully achieved, emigration scenario is left
in the hands of the domestic legislator. The different treatment appears to stem from the
nature of the corporate entity. Cartesio confirmed the Daily Mail judgment that the
companies are creatures of national law and must first comply with the domestic law
CEU eTD Collection
requirement before relying on the freedom of establishment. However, the court shaped
this argument to the significant extent. From the time of Cartesio, the company may
decide not to be the creature of domestic law and can transfer its real seat by way of
converting itself into the company governed by the foreign law. It means that the
companies may cease to be creatures of the foreign law, however only to the extent it this
law accept them. The ECJ by encompassing the conversion option within the scope of the
44

freedom of establishment, addressed the issue of the transfer of the registered office. The
feasibility of the transaction is still contingent upon the acceptance of the Member State
of arrival. However, it might be assumed that countries will introduce the conversion
mechanisms for the companies wishing to relocate in their territory.
Even though the measures are enacted by all of the Member States, the thesis by
providing safeguards that needs to be protected, concludes that the Directive that would
harmonize the procedural steps in every Member State would enhance the corporate
mobility and thus be beneficial for the internal market.
CEU eTD Collection
45

BIBlOGRAPHY
BOOKS
1. STEPHAN RAMMELOO, CORPORATIONS IN PRIVATE INTERNATIONAL
LAW 14 (OXFORD UNIVERSITY PRESS, OXFORD, 2001).
2.
MAX ANDENAS & FRANK WOOLDRIDGE, EUROPEAN COMPARATIVE COMPANY
LAW 35 (CAMBRIDGE UNIVERSITY PRESS, CAMBRIDGE 2009).
3. ADRIAAN F.M. DORRESTEIJN, EUROPEAN CORPORATE LAW 38 (
KLUWER LAW INTERNATIONAL, RIJN 2009).
4. JOSEPHINE STEINER, EU LAW (OXFORD UNIVERSITY PRESS:
OXFORD, 9th ed. 2006).
5. CHALMERS DAMIAN & ADAM TOMKINS, EUROPEAN UNION PUBLIC
LAW : TEXT AND MATERIALS 735 (CAMBRIDGE UNIVERSITY PRESS,
CAMBRIDGE 2007).
Electronicaly available books
1. DIRK VAN GERVEN, CROSS-BORDER MERGERS IN EUROPE
(CAMBRIDGE UNIVERSITY PRESS, CAMBRIDGE 2010)
http://books.google.com/books?id=8mafhz3gyMoC&pg=PR10&dq=dirk+van+ge
rven+2010&hl=sk&cd=1#v=onepage&q=dirk%20van%20gerven%202010&f=fal
s
Law Journals
1. Behrens Peter, The impact of community law on the determination of the personal
law of companies 47 IN: RESOLVING INTERNATIONAL CONFLICTS :
LIBER AMICORUM TIBOR VARADY (PETER HAY, LAJOS VEKAS,
YEHUDA ELKANA, NENAD DIMITRIJEVIC ed., CENTRAL EUROPEAN
UNIVERSITY PRESS. BUDAPEST ; NEW YORK, c 2009).
2. Borg-Barthet Justin, European private international law of companies after
Cartesio, 58 International and Comparative Law Quarterly (2009).
CEU eTD Collection
3. Burián László, Personal law of companies and freedom of establishment, 61
Revue hellénique de droit international (2008).
46

4. Deák Daniel, Outbound establishment revisited in Cartesio, 17 EC Tax Review
(2008)
5. Ebke F. Werner, The “real seat” doctrine in the conflict of corporate laws, 36 The
International Lawyer (2002). Supra note 17
6. Ebke F. Werner., The European conflict-of-corporate-laws revolution
: “Überseering”, “Inspire Art” and beyond, 38 The International Lawyer 813
(2004).
7. Eck, Gerco C. Van, SE mobility: taking a short cut? A recommendation for
amandemtn of the SE regulation, 6 European company law 108 (2009)
8. Franco Carlos The Spanish law on structural modifications of corporations, 24
Journal of International Banking Law and Regulation 529-530 (2009).
9. Frost Carsten, Transfer of Company’s Seat—an Unfolding Story in Europe, 36
Victoria University Wellington Law Review 362 (2005).
10. Gildea Andrea J., Uberseering: A European Company Passport, 30 Brooklyn
Journal of International Law (2004).
11. Johnston Andrew and Phil Syrpis, Regulatory competition in European company
law after “Cartesio”, 34 European Law Review 381 (2009).
12. Kieninger Eva-Maria, The Law Applicable to Corporations in the EC, 73 Rabels
Zeitschrift für ausländisches und internationales Recht 616 (2009)
13. Kuehrer Norbert, Cross-border company establishment between the UK and
Austria, 12 European Business Law Review 116 (2001).
CEU eTD Collection
14. Kußmaul Heinz, Corporations on the move, the ECJ off track : relocation of a
corporation’s effective place of management in the EU, 6 European company law
247 (2009)
15. Panayi Christiana H.J.I., Corporate mobility in the European Union and exit
taxes, 63 Bulletin for International Taxation (2009).
16. Rammeloo Stephan, Cross-border company mobility and the Proposal for a 14th
EC Company Law Directive: ’Daily Mail’ surmounted, 6 Maastricht Journal of
European and Comparative 373 (1999).
47

17. Rammeloo Stephan, The 14th Company Law Directive on the cross-border
transfer of the registered office of limited liability companies : now or never?, 14
Maastricht journal of European and comparative law 362 (2008).
18. Rickford Jonathan, Special issue section on the restructuring of companies in
Europe, European Business Law Review 1236 (2004)
19. Roth Wulf-Henning, From Centros to Ueberseering: Free Movement of
Companies, Private International Law, and Community Law, 52 The International
and Comparative Law Quarterly (2003)
20. Siems, Convergence, competition, “Centros” and conflicts of law : European
company law in the 21st century , 27 European Law Review 48 (2002).
21. Szyd o Marek , Emigration of companies under the EC Treaty : some thoughts on
the opinion of the Advocate General in the “Cartesio” case, 16 European review
of private law = Revue européenne de droit privé = Europäische Zeitschrift für
Privatrecht 979 (2008)
22. Torres, Miguel, Spain: Company law – Relocation of registered office, 24
International Company and Commercial Law Review N10 (2009)
23. Vossestein Gert-Jan, Cross-border transfer of seat and conversion of companies
under the EC Treaty provisions of freedom of establishment : Some
considerations on the Court of Justice’s Cartesio judgment, 6 European company
law 60 (2009).
24. Wooldridge Frank, Recent reforms of the German GmBH, 31Company Lawyer 62
CEU eTD Collection
(2010).
25. Wooldridge Frank, The advocate general’s submissions in Cartesio: Further
doubts on the Daily Mail Case, 30 Company Lawyer 145 (2009).
Electronically availabe articles
1. Mucciarelli, Federico M. , Companies’ Emigration and EC Freedom of
Establishment, 20 (2007). Available at SSRN: http://ssrn.com/abstract=1078407.
supra 31
48

2. Panayi Christiana Hji Panayi, Corporate Mobility in Private International Law
and European Community Law: Debunking Some Myths. YEARBOOK OF
EUROPEAN LAW, Eeckhout, P., Tridimas, T., eds., Vol. 28, Oxford University
Press, 2009; Queen Mary School of Law Legal Studies Research Paper No.
26/2009. Available at SSRN: http://ssrn.com/abstract=1437555 supra note 160
3. Ringe, Wolf-Georg, No Freedom of Emigration for Companies?. European
Business Law Review, Vol. 16, No. 3, 2005. Available at SSRN:
http://ssrn.com/abstract=1085544 supra note 71
4. Wolfgang Schön, The Mobility of Companies in Europe and the Organizational
Freedom of Company Founders, 3 European Company and Financial Law Review
139 (2006). 42 supra note 18
5. Wymeersch Eddy, The Transfer of the Company’s Seat in European Company
Law, ECGI Working Paper N°10 10 (2003). Available at:
http://ssrn.com/abstract=384802
ECJ case-law
6. Case 81/87 Daily Mail and General Trust [1988] ECR 5483.
7. Case C-212/97 Centros [1999] ECR I-1459.
8. Case C-208/00 Überseering [2002] ECR 1919.
9. Case C-167/01 Inspire Art [2003] ECR I-10155.
10. Case C-411/03 SEVIC Systems [2005] ECR I-10805
11. Case C-196/04 Cadbury Schweppes [2006] ECR I-7995
CEU eTD Collection
12. Case C-210/06 Cartesio [2008] ECR I-00000,
13. Case C-9/02, De Lasteyrie du Saillant [2004] ECR I-2409
Advocate general Opinion
14. Opinion of Advocate General Tizzano in SEVIC case Case C-411/03
15. Opinion of Advocate General Maduro in Cartesio Case C-210/06
European Union sources:/law reports
49

1. Commission staff working document, Impact assessment on the Directive on the
cross-border tranfer of registered office, Brussels, 12.12. 2007, SEC (2007) 1707,
Part.I Impact assessment on the Directive on the cross-border tranfer of registered
office (2007)
http://ec.europa.eu/internal_market/company/docs/shareholders/ia_transfer_12200
7_part1_en.pdf
2.
Communication from the Commission to the Council and the European
Parliament, Modernising Company Law and Enhancing Corporate Governance in
the European Union – A Plan to Move Froward, COM(2003) 284 final,
21.5.2003. p. 20available at http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2003:0284:FIN:EN:PDF
3. European Commission, The public consultation relates to the outline of the
planned proposal for a 14th Company Law Directive on the cross-border transfer
of the registered office of limited companies;
http://ec.europa.eu/internal_market/company/seat-transfer/2004-consult_en.htm
4. Report of the High Level Group of Company Law Experts on a Modern
th
Regulatory for Company Law in Europe, Brussels, 4 November 2002. Availabe
at http://www.ecgi.org/publications/documents/report_en.pdf
5.
Report of the High Level Group of Company Law Experts on a Modern Regulatory for Company
th
Law in Europe, Brussels, 4 November 2002. Availabe at
http://www.ecgi.org/publications/documents/report_en.pdf
Statutory measures
1. European Parliament resolution of 10th March 2009 with recommendations to the
Commission on the cross-border transfer of the registered office of a company,
(2008/2196(INI))
2. Council Regulation EC 2157/2001 of 8 October 2001 on the Statute for a
European Company (SE) OJ L 294
CEU eTD Collection
3. Directive 2005/56/EC of the European Parliament and the Council of 26th
October 2005 on cross-border mergers of limited liability companies OJ L 310
4. First company law directive (Directive 68/151/EEC)
5. Treaty on the Functioning of the European Union May 9, 2008, OJ C 115/47
50

Leave a Reply

Note: XHTML is allowed. Your email address will never be published.

Subscribe to this comment feed via RSS

*