Emigration of Companies under the EC Treaty: Some Thoughts on the Opinion of the Advocate General in the Cartesio Case

Abstract

Abstract: Since the ECJ has, in its jurisprudence, already guaranteed immigrating companies (within the meaning of Article 48) the right – seen from the perspective of the host Member State – to transfer their real seat, by acknowledging that the host Member State must recognize the company’s legal personality and allow it to continue to be subject to the company law of its home Member State, the time has come for the same right to be guaranteed to the emigrating companies (i.e., those that transfer their real seat) from the perspective of their home Member State, as well. An opportunity for such a right to be guaranteed to the companies is offered by the Cartesio case that is now pending before the ECJ. In his opinion delivered on 22 May 2008, the Advocate General states that Articles 43 EC and 48 EC preclude national rules of the home Member State which make it impossible for a company constituted under national law to transfer its operational headquarters to another Member State, while acknowledging at the same time that such absolutely prohibited rules include, among others, an order for the emigrating company to be dissolved. This article argues that the ECJ should also include among such absolutely prohibited rules an order concerning the change of law applicable to the emigrating company, since the said company should have the right to demand from its home state to be allowed to retain its current personal statute.