Freedom of Establishment, Cross-Border Transfer of the Company Seat and its Impact on Private International Law: Assessing Cartesio

Abstract

This article (written in Dutch) explores the consequences of the ECJ decision in Cartesio by making the link between the cross-border transfer of the de facto head office and the identity-preserving company law change. In the first part (I-IV), the paper discusses the factual background as well as the different versions of the real seat and incorporation doctrine and concludes that the question at hand in Cartesio indeed relates to the cross-border transfer of the head office (and not the registered office). The second part of the paper (V) deals with the question whether and under what conditions, after Cartesio, companies have the right under the freedom of establishment to transfer their head office to another Member State while retaining their status as company governed by the law of their Member State of incorporation. Finally (VI), we investigate whether the opportunities offered by Cartesio for cross-border transfer of the company seat allows companies to convert themselves into a foreign company without interruption of their legal existence. We conclude that there still is a need for European regulation as was envisaged in the project for a Fourteenth Company Law Directive in order to tackle the impediments to the freedom of establishment this article has identified.