Transfer of Seat and Freedom of Establishment in European Company Law

Abstract

One of the most debated issues in European company law regards the possibility of a cross border transfer of seat for European companies. The latest developments in this area have been brought about in the wake of the recent case law of the European Court of Justice (ECJ). Although mainly concerned with a correct implementation of the freedom of establishment, a number of rulings of the Court have in fact exercised a deep impact on the transferability of a corporate seat within the Community. In this respect, a vast literature agrees that the right of establishment is to be regarded as a milestone of European company law. The stakes at issue are of remarkable importance, since they affect not only all national corporate laws but also the centralised law-making capacity of the European institutions. While the Court of Justice approach seems to be more oriented towards the im plications of the incorporation doctrines, the adoption of the European Company Regulation1 appears to be a more flexible version of the real seat doctrine. This apparent lack of co-ordination results in confusion and uncertainty, and cannot be seen in a favourable way for the realisation of the single market, to which the free movement of companies is a fundamental component. The present essay tries to analyse and provide a key for the comprehension of the intricate knot of issues and interests influencing the cross border transfer of companies, taking account of how the subject is differently addressed and shaped by the underlying doctrinal framework, the European Company (SE) Regulation and the case law of the European Court of Justice. It then tries to reconcile the different positions to unity, and to suggest what is perceived by the author as the most effective solution for a correct affirmation of the right of free establishment. The implications of the ECJ case law, a strong defence of the freedom of establishment and a genuine state competition would lead in the last resort to a phenomenon of self-harmonisation which may possibly prove more effective and commercially valuable than the limited results achieved so far by the Company Law Directives and the European Company Regulation.