CROSS-BORDER TRANSFER OF THE REGISTERED SEAT- A CINDERELLA OF THE FREEDOM OF ESTABLISHMENT?

Abstract

We would have expected perhaps that surprising statement made in 1997 by a French author, H. Le Nabasque – the European company law is not a right of mobility of / le droit europeen des societes n’est pas un droit de mobilite des societes(in original text) - to become today an outdated paradox. And yet, while right of secondary establishment (externalized prerogative to establish subsidiaries, branches, agencies on territory of Member States - other than State of origin) became a real benefit of internal market, right of primary establishment (more exactly, transfer of company seat from one Member State to another) knows some limitations, at least in current status of EU law (I).The case-law progress, meaning actual militant action of CJEU in purpose of liberalization of right of establishment via famous ruling Centros, Inspire Art contributed not only to determination of prohibited restrictions to exercising right of secondary establishment, but also to admission of intra-Community transfer of company actual seat. The above mentioned caselaws and, newly, contributions (even partial) marked by solutions of Cartesio or Vale are insufficient, in absence of a judgment comparable to that imposed in Sevic AG on cross-border mergers, to actually and under certainty and legal predictability conditions ensure transfer of registered office from one Member State to another (II).Excepting Regulations on European company (SE), European Economic Interest Grouping (EEIG) and European Cooperative Society (SCE), no secondary text authorized transfer of a company seat from one Member State to another without dissolution followed by reconstitution of company on territory new headquarters is intended to be set. In other words, while SE, EEIG and SCE enjoy competitive advantage of complete intra-community mobility for national companies, transfer of statutory seat from one Member State to another becomes a difficult operation given legal and fiscal barriers imposed by laws of Member States. In 2007, European Commissioner Mac Creevy announced abandonment of 14th Directive proposal on cross-border transfer of registered office; thereafter topic seems to be re-enlisted on political agenda of European policy makers: European Parliament resolution of 2 February 2012 covering recommendations to Commission for adopting a directive in this field was followed by public consultation launched of January 2013 (III).Moreover, revival of interest manifested in legal environments is clear in reiterating principle rules on which such a legislative initiative might rely on: continuity of legal personality, limiting scope to equity companies and private limited companies, ensuring a rigorous procedure governing transfer, tax-neutral and ensuring protection of stakeholders - employees, creditors or minority shareholders (IV).